                              FIRST DIVISION
                               BARNES, P. J.,
                         MCMILLIAN and MERCIER, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                       June 6, 2017

In the Court of Appeals of Georgia
 A17A0051. WALLACE v. THE STATE.

      BARNES, Presiding Judge.

      Following a jury trial, Clarence Steven Wallace was convicted of three counts

of felony theft by shoplifting and sentenced to ten years to serve as a recidivist under

OCGA § 17-10-7 (a) and (c). He filed a motion for new trial alleging the general

grounds, which Wallace later amended to include other claims, including ineffective

assistance of counsel. The trial court denied his motion, and Wallace appeals from

that order. Following our review, we affirm.

      “On appeal from a criminal conviction, the defendant is no longer entitled to

a presumption of innocence and we therefore construe the evidence in the light most

favorable to the jury’s guilty verdict.” Marriott v. State, 320 Ga. App. 58, 58 (739

SE2d 68) (2013). So viewed, the record demonstrates that Wallace drove his co-

defendant, Lebron Grady, to Whitfield County so that Grady could shoplift specific

items for Wallace in order to repay a debt to Wallace. As Wallace waited in his truck,
Grady took electric toothbrushes and SD cards from a CVS Pharmacy. The men then

continued the shoplifting spree, taking boots from the Tractor Supply Company,

fishing reels, headphones, a cellular phone and computer from Walmart, a cellular

phone booster from Radio Shack, and shoes from JCPenney. At the next stop, a liquor

store, Wallace purchased a soda while Grady took two bottles of Crown Royal and

started to leave the store. The owner saw him, and during an ensuing chase, Grady

dropped the liquor bottle while he ran away.

      Wallace picked Grady up in his truck, and, after the shop owner notified police

of the theft and the type of vehicle the men were driving, police stopped the pair at

a traffic stop conducted a few miles from the liquor store. After Wallace gave police

permission to search the truck, police discovered the stolen items in the bed of the

truck. Wallace denied participating in the crimes, but consented to a search of his

person, and the police retrieved an unopened lip gloss-type product from his pocket,

which was later identified as an item stolen from Walmart. Both men were arrested

and indicted on three counts of felony shoplifting.

      1. Wallace first contends that his felony shoplifting conviction on Count 3 of

the indictment is void. He asserts that because the State used the aggregated value of

the goods from the various stores to support the felony charge, the indictment had to

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specify that the thefts occurred within the statutorily prescribed period of seven days

or less. We do not agree.

       The first count of the indictment charged Wallace with felony shoplifting for

taking goods valued at more than $500 from CVS, and Count 2 charged the same for

the shoplifting that occurred at WalMart. Count 3 of the indictment, however,

provided, in pertinent part, that Wallace, “did take possession of . . . the property of

Tractor Supply Company, . . . the property of JC Penney, . . . the property of Radio

Shack, . . . and . . . the property of Cox Spirits, . . . said merchandise totaling a value

greater than five hundred dollars ($500.00).”

       Wallace maintains that although the State did not refer to a specific statute in

the indictment, the only provision of the shoplifting statute that covers aggregation

of separate misdemeanor-level thefts is OCGA § 16-8-14 (b) (3), which requires that

the aggregate acts occur during a period of seven days or less. He argues that the

seven-day period is a material element of the statute that the State failed to allege in

the indictment, which only stated that the thefts occurred “on or about” May 27, 2014.

Wallace further contends that pursuant to Apprendi v. New Jersey, 530 U. S. 466, 490

(IV) (120 SCt 2348, 147 LE2d 435) (2000), any fact that increases the penalty for a

crime beyond the statutory maximum, other than a prior conviction, must be

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submitted to a jury and proven beyond a reasonable doubt. Thus, he argues, because

the time period of seven days would act to increase his crime from a misdemeanor to

a felony, it was a material element of Count 3, and the jury should have been

instructed to make that determination.

       OCGA § 16-8-14 (b) (2), provides that a person who commits the offense of

theft by shoplifting is guilty of a felony where the property stolen has a value in

excess of $500, and

      [a] person convicted of the offense of theft by shoplifting, as provided
      in subsection (a) of this Code section, when the property which was the
      subject of the theft is taken from three separate stores or retail
      establishments within one county during a period of seven days or less
      and when the aggregate value of the property which was the subject of
      each theft exceeds $500.00 in value, commits a felony.


OCGA § 16-8-14 (b) (3).

      Here, even assuming without deciding that the date was a material averment

of Count 3 of the indictment and the State had to prove that the aggregate shoplifting

offenses happened within a seven-day period or less, that period of time was

sufficiently alleged in the indictment here by saying that the crimes occurred “on or

about” May 27, 2014. Moreover, there was no fatal variance because the evidence at


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trial demonstrated that the shoplifting that occurred at the three stores at issue in

Count 3 occurred on the same day, May 27, 2014.

      Likewise, Wallace’s contention that his conviction under Count 3 was void

under the precedent established by Apprendi because the aggregate crimes provision

in OCGA § 16-8-14 (b) (3) increased the penalty of the crime beyond the prescribed

statutory maximum is meritless. “Because the sentence at issue was within the

statutory maximum and did not extend [Wallace’s] punishment beyond the prescribed

range supported by the jury’s verdict, Apprendi simply does not apply to this

sentencing scheme.”(Punctuation omitted.) Ray v. State, 338 Ga. App. 822, 34-35 (8)

(a) (792 SE2d 421) (2016).

      2. Wallace also contends that trial counsel was ineffective for failing to

impeach several witnesses, and in failing to point out during closing argument the

discrepancies in certain evidence. We do not agree.

      To establish ineffective assistance of counsel, Wallace must satisfy a two-prong

test. He

      must show [both] that trial counsel’s performance [was deficient in that
      it] fell below a reasonable standard of conduct and that [it was
      prejudicial because] there existed a reasonable probability that the
      outcome of the case would have been different had it not been for

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      counsel’s deficient performance. If [Wallace] fails to [prove] either
      prong of the [two-part] test, this relieves the reviewing court of the need
      to address the other prong.


(Citations and punctuation omitted.) Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d

305) (2012).

      Wallace first contends that trial counsel was ineffective for failing to call

witnesses who allegedly overheard jailhouse conversations between Grady and

Wallace in which Grady told Wallace that he had told his attorney that Wallace had

nothing to do with the robberies. Two of the witnesses- both who had worked in food

service at the Whitfield County Jail- testified about the conversation at the motion for

new trial hearing. Wallace’s trial attorney testified that Wallace provided him with

the names of the potential witnesses, but that in his professional opinion, testimony

about jailhouse conversations between co-defendants often “did not work out

favorably during the course of a trial,”and could open the door to other issues. He

also said that it would be expected that Grady would tell Wallace something totally

different from what he was telling his attorneys, and that their trial strategy was to

discredit Grady, emphasize his extensive shoplifting history, and demonstrate the lack

of evidence of Wallace’s participation in the crimes.


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      “In the realm of specific decisions regarding trial strategy, and in particular

decisions about which witnesses should be called to testify, defense attorneys are

afforded wide discretion.” (Citation and punctuation omitted.) Muller v. State, 284

Ga. 70, 72 (3) (663 SE2d 206) (2008). See Perdue v. State, 298 Ga. 841, 845 (3) (785

SE2d 291) (2016) (noting that it is well established that the decision as to which

defense witnesses to call is a matter of trial strategy and tactics). Here, trial counsel

testified that, based on his professional judgment, testimony about jailhouse

conversations can be detrimental rather than helpful at trial, and we have held that

trial counsel does not render ineffective assistance when he fails to call a witness that

he determines would not be favorable for the defendant. See Davenport v. State, 308

Ga. App. 140, 154 (2) (b) (706 SE2d 757) (2011).

      Moreover, Wallace does not demonstrate that, given the overwhelming

evidence of his involvement in the crimes, there was a reasonable probability that the

failure of trial counsel to call these witnesses would have resulted in a different

outcome. Wallace drove Grady to the various stores, he is seen on the surveillance

tape pointing out various items, Wallace is shown leaving stores shortly before Grady

exits with the items, and the stolen items were located in Wallace’s truck.

Accordingly, this contention of ineffectiveness of trial counsel fails.

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      Wallace’s contention that trial counsel was ineffective for not impeaching two

witnesses about a discrepancy about whether all of the items stolen from Walmart

were returned to the store, also fails. The record demonstrates that, according to an

incident report, the lip gloss products were kept by the police for use as evidence,

rather than returned to Walmart, which was contrary to the testimony of two

witnesses that all of the products were returned to Walmart. Trial counsel testified at

the motion for new trial hearing that he did not catch the discrepancy. But, as noted,

prejudice, in addition to deficiency, must be demonstrated to establish ineffectiveness

of trial counsel. Wallace has failed to show that there was a reasonable probability

that the outcome would have been different if trial counsel had impeached the

witnesses about the discrepancy. “With respect to prejudice, . . . [Wallace] must

demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” (Citation and

punctuation omitted.) Brown v. State, 288 Ga. 920, 907 (5) (708 SE2d 294) (2011).

Wallace has failed to do so.

      Likewise, we also find meritless Wallace’s contention that trial counsel was

ineffective for failing to point out in his closing argument the discrepancy between

                                          8
the evidence and the indictment, where the evidence demonstrated that a witness

testified that “Hard Candy lip gloss” was stolen and the indictment charged Wallace

with taking “lip lacquer.” Wallace contends that lip gloss was the only evidence

connecting Wallace to the crime, and because the closing statement was the last

chance that trial counsel had to argue about the discrepancies in the evidence, trial

counsel was deficient for failing to do so.

      In denying the motion for new trial, the trial court found, and this Court agrees,

that, based on trial counsel’s testimony, trial counsel “planned his closing argument

to focus on the mere presence theory [rather than evidentiary discrepancies] he was

presenting for [Wallace]. Trial counsel’s argument was in furtherance of the trial

strategy [and] fell within the broad range of reasonable professional conduct, and was

not deficient.”

      [T]he Strickland [ v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052,
      80 LEd2d 674) (1984)] standard must be applied with scrupulous care,
      lest intrusive post-trial inquiry threaten the integrity of the very
      adversary process the right to counsel is meant to serve. Even under de
      novo review, the standard for judging counsel’s representation is a most
      deferential one. Unlike a later reviewing court, the attorney observed the
      relevant proceedings, knew of materials outside the record, and
      interacted with the client, with opposing counsel, and with the judge. It
      is all too tempting to second-guess counsel’s assistance after conviction

                                          9
      or adverse sentence. The question is whether an attorney’s
      representation amounted to incompetence under prevailing professional
      norms, not whether it deviated from best practices or most common
      custom.


(Citations and punctuation omitted.) Brown, 288 Ga. at 907-908 (5).

      In this case, the trial court did not err in rejecting Wallace’s ineffectiveness

claims.

      Judgment affirmed. McMillian and Mercier, JJ., concur.




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