                                THIRD DIVISION
                               ELLINGTON, P. J.,
                          DILLARD and MCFADDEN, 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 29, 2015




In the Court of Appeals of Georgia
 A15A0328. BROWN v. THE STATE.                                                 JE-013C

      ELLINGTON, Presiding Judge.

      A Walton County jury found Isaac Brown guilty of aggravated assault, OCGA

§ 16-5-21 (b) (2); possession of a firearm during the commission of a crime, OCGA

§ 16-11-106 (b) (1); and possession of a firearm by a convicted felon, OCGA § 16-

11-131 (b). Brown appeals from the denial of his motion for a new trial, contending

that the trial court erred in admitting hearsay evidence and that his trial counsel was

ineffective. Finding no reversible error, we affirm.

      Viewed in the light most favorable to the jury’s verdict,1 the record shows that,

on November 14, 2011, Brown and his brother, Abraham, assaulted Mario


      1
          Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979).
Fambrough. Fambrough testified that he was standing outside his uncle’s home with

a friend, talking on his cell phone, when the Brown brothers walked up to him. Both

Fambrough and his friend, Jarvaris Brake, testified that the brothers pulled out

handguns and pointed them at Fambrough. Brake fled inside the house while the

brothers pistol-whipped Fambrough until he surrendered his wallet.2 Fambrough’s

uncle testified that he saw two men beating his nephew but that he did not see their

faces. As a result of the assault, Fambrough suffered facial lacerations and a swollen

eye. Brown, who elected to testify in his defense, contended that he and Fambrough

had gotten into a fight over a drug deal and that he had been unarmed.

      After Fambrough had been treated for his injuries, the responding police

officers took him into custody on an outstanding warrant for a probation violation.

The police put Fambrough in a holding cell that was also occupied by Brown’s other

brother, David, who had been arrested the day before and was not involved in the

assault. Fambrough complained to David about what David’s brothers had done to

him. Fambrough testified that, after he had been released from jail, David called him

from the jail and told him that his mother would pay him to tell the police that his


      2
        The State also indicted Brown for armed robbery, OCGA § 16-8-41, but the
jury acquitted him of that offense.

                                          2
brothers were not involved in the assault. A recording of that conversation was

admitted in evidence and played for the jury.

      The State also presented the testimony of Antonio Phillips, a person who had

been incarcerated in the same cell block in the Walton County jail with Brown while

Brown was awaiting trial. Phillips testified that he knew Fambrough and the Brown

brothers. He said that Fambrough had once hit him with a brick, and that Brown was

aware that he and Fambrough had fought. He testified that Brown had approached

him while they were in jail and had spoken with him briefly about Brown’s upcoming

trial, telling Phillips that his lawyer would be contacting him. A few weeks later, a

trustee handed Phillips a letter addressed to “Young Gun,” which is Phillips’

nickname. The trustee said the letter was from “Trip,” which is Brown’s nickname.

The trustee also pointed toward Brown, who was standing a short distance away. A

corrections officer took the letter from Phillips before he could finish reading it. In

his unsigned letter, Brown urged Phillips to testify that he had witnessed an

altercation and to testify that Brown and his brother had been unarmed. The letter

contained all the details Phillips would need to fabricate his eyewitness testimony:

the date and time of the incident, the location, the names of all those present, and how

the altercation had allegedly occurred. In the letter, Brown pleaded: “I need your help

                                           3
bad. . . . [the prosecution is] talking [a]bout a 30 do 18 [sentence.] . . . I’ll see if my

lawyer will come see you soon[.]”

       1. Brown contends the trial court erred in admitting the recorded telephone call

between David and Fambrough, arguing that David’s statements about his mother’s

offer to pay Fambrough to tell the police that his brothers were not involved in the

assault constituted inadmissible hearsay. The transcript shows that Brown made a

general hearsay objection to the recording, which the court summarily overruled.

Because the statements were nonhearsay, we find no error in the court’s ruling on the

objection.

       OCGA § 24-8-801 (c) provides: “‘Hearsay’ means a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.”3

       Whether an out-of-court statement is hearsay depends on whether it is
       offered for its truth or merely for the fact that it was made. Where the
       alleged fact is only so if the substance of the statement is the truth, the
       statement constitutes hearsay. On the other hand, where the alleged fact


       3
        Brown was tried in August 2013; therefore, the new Evidence Code applied
to his trial. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on
January 1, 2013, and shall apply to any motion made or hearing or trial commenced
on or after such date.”).

                                            4
      may be so regardless of whether the statement is true or false, the
      statement is not hearsay.


(Citation omitted; emphasis added.) United States v. Webster, 649 F2d 346, 349 (III)

(5th Cir. Fla. 1981).4 See also Graham v. State, 331 Ga. App. 36, 39 (2) (769 SE2d

753) (2015) (“[T]estimony did not constitute hearsay because the state did not offer

the words for the truth of their content.”) (citation and punctuation omitted).

      In this case, the statements are not hearsay because the State offered them for

a purpose that did not require the jury to assume that the substance of the statements

was true. Here, the evidentiary “facts” that the state offered the statement to prove are

that David had conveyed to Fambrough an offer to buy his testimony and that

Fambrough had rejected it. Those facts do not depend on whether David was telling

the truth about whether he or his mother would actually pay Fambrough to give


      4
        The Supreme Court of Georgia recently noted that, “where the new Georgia
rules mirror their federal counterparts, it is clear that the General Assembly intended
for Georgia courts to look to the federal rules and how federal appellate courts have
interpreted those rules for guidance.” Parker v. State, 296 Ga. 586, 592 (3) (a) (769
SE2d 329) (2015). Additionally, in the event of any conflicting interpretations
between the Eleventh Circuit and other federal circuit courts, we must follow the
Eleventh Circuit as of January 1, 2013. Bradshaw v. State, 296 Ga. 650, 655 (3) (769
SE2d 892) (2015). Further, the Eleventh Circuit has adopted as binding precedent
decisions made by the Fifth Circuit handed down on or before September 30, 1981.
Bonner v. City of Prichard, 661 F2d 1206, 1209 (11th Cir. 1981) (en banc).

                                           5
testimony favorable to Brown. Rather, David’s statements were significant because

they had been made and because they were likely to have had an effect on the hearer,

Fambrough. The jury could infer from the conversation that Fambrough was a more

credible witness for having rejected the offer. Because the evidentiary value of the

statements did not rest upon whether the declarant was being truthful or honest, the

trial court did not err in overruling Brown’s general objection to the statements on

hearsay grounds. See Graham v. State, 331 Ga. App. at 39 (2) (testimony concerning

an out-of-court statement was not offered for its truth, but to explain its effect on

those who heard the statement and their subsequent conduct, and was, therefore,

admissible as nonhearsay). See also United States v. Hanson, 994 F.2d 403, 406 (7th

Cir. 1993) (“An out of court statement that is offered to show its effect on the hearer’s

state of mind is not hearsay.”) (citations omitted).

      2. Brown contends that his trial counsel was ineffective for failing to object on

hearsay grounds to Phillips’ testimony that, when the prison trustee handed him the

letter, the trustee pointed to Brown and said that the letter was from Brown. He argues

that the trustee’s gesture and statement were the only evidence establishing that the

letter was from Brown and that, had counsel interposed a hearsay objection, the letter

would not have been authenticated and admitted in evidence.

                                           6
      In order to prevail on a claim of ineffective assistance of counsel, a
      criminal defendant must show that counsel’s performance was deficient
      and that the deficient performance so prejudiced the client that there is
      a reasonable likelihood that, but for counsel’s errors, the outcome of the
      trial would have been different. Strickland v. Washington, 466 U. S. 668
      (104 SCt 2052, 80 LE2d 674) (1984)[.] The criminal defendant must
      overcome the strong presumption that trial counsel’s conduct falls
      within the broad range of reasonable professional conduct.


(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d

313) (2003). See also Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009) (In

analyzing the prejudice element, “[t]he question is whether there is a reasonable

probability that, absent [counsel’s] errors, the factfinder would have had a reasonable

doubt respecting guilt.”) (citation and punctuation omitted). Failure to satisfy either

prong of the Strickland standard is fatal to an ineffective assistance claim. Goodwin

v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995); Ponder v. State, 201 Ga.

App. 388, 389 (1) (411 SE2d 119) (1991). As the appellate court, “[w]e accept the

trial court’s factual findings and credibility determinations unless clearly erroneous,

but we independently apply the legal principles to the facts.” (Citation and

punctuation omitted.) Robinson v. State, 277 Ga. at 76.




                                          7
      Pretermitting whether the trustee’s statement and gesture identifying Brown as

the letter’s author constituted hearsay to which trial counsel should have interposed

an objection, Brown can show no harm as a result of the failure to object because the

letter was sufficiently authenticated by other admissible evidence.

      The State was required to properly authenticate Brown’s letter as a condition

precedent to its admissibility. OCGA § 24-9-901 (a).5 The State was required to

present “sufficient evidence to make out a prima facie case that the proffered

evidence is what it purports to be.” (Citation omitted.) United States v. Belfast, 611

F.3d 783, 819 (VI) (C) (11th Cir. 2010). “Once that prima facie case is established,

the evidence is admitted and the ultimate question of authenticity is decided by the

jury.” Id. See also Williams v. State, 280 Ga. 584, 587 (2) (630 SE2d 370) (2006)

(“Handwriting evidence is not required in every case, however, so long as there is

other evidence, circumstantial or otherwise, to make a prima facie showing of

authenticity.”) (footnote omitted). A document may be authenticated “[a]ppearance,




      5
         OCGA § 24-9-901 (a) provides: “The requirement of authentication or
identification as a condition precedent to admissibility shall be satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims.”

                                          8
contents, substance, internal patterns, or other distinctive characteristics, taken in

conjunction with circumstances[.]” OCGA § 24-9-901(b) (4).

      Even absent Phillips’ testimony as to the trustee’s statements and gestures

indicating that the letter was from Brown, the State presented sufficient evidence

establishing a prima facie case from which the jury could infer that the letter was from

him. It is apparent from the contents of the letter – which included names, places,

dates, times, and other details of the incident – that only someone with great

familiarity with the incident could have written it. The letter was written in the first

person and implored Phillips to help “us,” “the triplets,” which was the nickname for

Brown and his brothers. That the author was Brown could be inferred from those

details, as well as the statements: “[The prosecution is] talking [a]bout a 30 do 18

[sentence.] . . . I’ll see if my lawyer will come see you soon[.]” Brown had spoken to

Phillips concerning his upcoming trial and told him that his lawyer would be

contacting him soon, and those prior conversations were consistent with the

statements in the letter. Also, when Phillips received the letter from the trustee,

Brown was standing a short distance away, looking at Phillips. Brown was the only

one of the three brothers incarcerated in Phillips’ cell block. Given this evidence,

Brown has failed to establish that a hearsay objection would have resulted in the letter

                                           9
being excluded on the ground of insufficient authentication. See United States v.

Mentor, 570 Fed. Appx. 894, 897 (II) (11th Cir. 2014) (A letter was held to be

sufficiently authenticated when the witness testified that the defendant, her ex-

boyfriend, was the only person who would be sending her a letter, and the contents

indicated that it was from him. It contained references to her, her brother, her best

friend, and other key details leading her to identify the defendant as the author.); see

also Foster v. State, 294 Ga. 383, 385 (3) (SE2d ) (2014) (“Under all of [the facts

adduced], it is very unlikely that anyone other than [Foster] had written the letter.

Accordingly, the circumstances were sufficient to make a prima facie showing of

authenticity.”); Williams v. State, 280 Ga. at 587 (2) (“Johnson testified that Williams

threw the note at him while Johnson was near Williams’ cell, and that the note was

consistent with prior conversations between Williams and Johnson. The note was

addressed to ‘C-dog,’ which was Johnson’s nickname. Johnson, who was not an

accomplice in the case, turned the note over to the sheriff. This evidence plainly

authenticates the writing, and it was not error for the trial court to admit the note.”)

      Under the circumstances present in this case, even if Phillips’ testimony

concerning the trustee’s statement and gesture indicating that Brown had written the

letter constituted inadmissible hearsay, the erroneous admission of those statements

                                          10
was harmless when the jury would have been able to infer that Brown had written it

from the sufficiently authenticated and admissible letter itself. Because the alleged

hearsay was cumulative of other evidence of the letter’s authorship, it was without

material effect on the verdict. See Skinner v. State, 318 Ga. App. 217, 219 (1) (733

SE2d 506) (2012) (admission of hearsay evidence harmless where it was cumulative

of admissible evidence); Moody v. State, 277 Ga. 676, 680 (4) (594 SE2d 350) (2004)

(accord). And “the failure to object to evidence which is merely cumulative of other

admissible evidence does not amount to ineffective assistance of counsel.”

(Punctuation and footnote omitted.) Ashmid v. State, 316 Ga. App. 550, 558 (3) (b)

(730 SE2d 37) (2012). Consequently, the trial court did not err in denying Brown’s

motion for a new trial on ineffective assistance of trial counsel grounds.

      Judgment affirmed. Dillard and McFadden, JJ., concur.




                                         11
