                                FIRST DIVISION
                                  DOYLE, C. J.,
                           PHIPPS, P. J., and BOGGS, J.

                     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


                                                                     January 14, 2016




In the Court of Appeals of Georgia
 A15A1828. HOUSTON v. THE STATE.                                               BO-070C

      BOGGS, Judge.

      A jury found Anthony Houston guilty of armed robbery.1 Following the denial

of his motion for new trial, Houston appeals, asserting as error the trial court’s ruling

on an objection and also asserting that he received ineffective assistance of counsel.

For the following reasons, we affirm.

      Construed in favor of the verdict, the evidence showed that the victim stopped

to offer a ride to her friend Kristlin Simmons and Simmons’ boyfriend, Houston,

whom the victim did not know. Simmons and Houston were walking down the street

around midnight. Houston told the victim that they did not need a ride, but Simmons

decided to accept the victim’s offer and got into the front passenger’s seat. After

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          The jury acquitted Houston on a charge of kidnapping.
Simmons entered the car, Houston pulled her out and repeatedly told her “b****,

you’re not going nowhere.” Houston took Simmons’ belongings and “threw them out

into the street.” When Simmons objected to his actions, Houston slapped her. The

victim became “nervous and scared” because Houston was “throwing . . . things and

cussing and fussing.” After arguing with Simmons for a moment, Houston jumped

into the passenger side of the victim’s car, pulled out a gun, ordered the victim out of

the car, and then “put [the gun] to [the victim’s] face and he was, like, give me

everything you’ve got.” The victim told Houston that she did not have anything and

begged him to allow her to remove her baby from the back seat: “My purse was in the

car. My baby was in the car. I said, I don’t have anything. Everything I got is in the

car. I said, you just let me get my baby, you know, you can just leave.” After allowing

the victim to get her baby, Houston drove away in the victim’s car. The victim’s and

Simmons’ testimony that Houston pulled out a gun was uncontradicted.

      1. Houston argues that the trial court erred in overruling his objection to the

State’s question to the victim regarding her identification of him as the armed robber.

The prosecutor asked the victim about her identification of Houston from a

photographic lineup: “How certain were you at the time . . . . How certain were you

that this is the young man that robbed you that night?” The victim responded, “Very

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certain.” Houston’s counsel objected, but the trial court allowed the question and

answer.

      Houston acknowledges that the trial court did not instruct the jury regarding

the victim’s level of certainty in violation of Brodes v. State, 279 Ga. 435, 442-443

(614 SE2d 766) (2005). He argues, however, that a violation nevertheless occurred

because of the victim’s testimony regarding her level of certainty coupled with the

trial court’s instruction to the jury that the evidence includes all of the testimony of

the witness and that “identity is a question of fact for you to determine.” We have

found no authority concluding that this combination constitutes a violation of Brodes,

supra, and we decline to hold so here.

      We have held that

      In Brodes, our Supreme Court held that it could no longer endorse an
      instruction authorizing jurors to consider the witness’s certainty in
      his/her identification as a factor to be used in deciding the reliability of
      that identification, and advised trial courts to refrain from giving the
      “level of certainty” instruction to jurors. The Brodes decision does not,
      however, prohibit an identification witness from testifying about his or
      her level of certainty, or restrict the state from inquiring about the same.
      As we noted in Best v. State, [279 Ga. App. 309 (630 SE2d 900)
      (2006),] a defendant can challenge such testimony through



                                           3
        cross-examination, expert testimony, or the presentation of testimony
        from other eyewitnesses.


(Citations, punctuation and footnotes omitted.) Clark v. State, 285 Ga. App. 182, 185

(4) (645 SE2d 671) (2007); see also Smith v. State, 303 Ga. App. 831, 835-836 (5)

(695 SE2d 86) (2010) (trial counsel’s performance not deficient for failure to pursue

futile objection to witness’ testimony that he was 100 percent certain that defendant

was person he saw in parking lot of bank following armed robbery). Moreover, the

record reveals that the trial court properly instructed the jury regarding the factors to

consider in assessing the reliability of a witness’ identification. The court’s

instructions were nearly identical to the suggested pattern jury instructions. See

Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions,

Vol. II, Criminal Cases § 1.35.10. (Identification; Reliability). See, e.g., Gamble v.

State, 291 Ga. 581, 582-583 (2) (731 SE2d 758) (2012) (court correctly instructed

jury on facts it may consider in assessing reliability of witness identification).2




        2
            Houston enumerates no error with regard to the trial court’s instructions to the
jury.

                                               4
      We therefore hold that the trial court did not err in overruling Houston’s

objection to the State’s questioning of the victim regarding the level of certainty of

her identification.

      2. Houston contends that his trial counsel was ineffective in failing to request

a jury instruction on the lesser included charges of robbery and theft by taking. He

asserts that because his sole defense was that only a theft by taking occurred, it was

error not to instruct the jury on the lesser charges.

      To establish ineffectiveness under the standard of Strickland v. Washington,

466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984),

      an appellant must show that (1) counsel’s performance was deficient and
      (2) the deficiency so prejudiced his defense that a reasonable possibility
      exists that the trial’s outcome would have been different but for that
      deficiency. We need not address both prongs of this test if the showing
      on one prong is insufficient, nor must we address them in any particular
      order.


(Citations, punctuation and footnotes omitted.) Jackson v. State, 248 Ga. App. 7, 10-

11 (4) (545 SE2d 148) (2001). “We accept the trial court’s factual findings and

credibility determinations unless clearly erroneous, but we independently apply the




                                           5
legal principles to the facts.” (Citation omitted.) Robinson v. State, 277 Ga. 75, 76

(586 SE2d 313) (2003).

      “The court must charge the jury on a lesser included offense if . . . there is any

evidence that he committed the lesser included offense. But where the evidence

shows either the completed offense, as averred, or no offense, such evidence will not

support a verdict for one of the lesser grades of the offense .” (Citations, punctuation

and footnotes omitted.) Miller v. State, 259 Ga. App. 244, 246 (1) (576 SE2d 631)

(2003). Moreover, “[a] charge on the defendant’s sole defense is mandatory only if

there is some evidence to support the charge.” (Citation, punctuation and footnote

omitted.) Id. at 246 (2).

      Here, the uncontradicted evidence showed that Houston forced the victim from

her car at gunpoint and then drove away in the car. There was no evidence to

contradict his use of a gun. Because the evidence showed either that Houston

committed an armed robbery or no crime at all, he was not entitled to a jury

instruction on the lesser offenses. See Jackson, supra, 248 Ga. App. at 9 (2); Jones

v. State, 233 Ga. App. 362, 364 (504 SE2d 259) (1998) (“Where the uncontradicted

evidence shows completion of the offense of armed robbery, and no evidence is

presented to the effect that a weapon was not used in the robbery, the defendant is not

                                           6
entitled to a jury charge on the lesser included offenses of theft by taking or robbery

by intimidation. [Cit.]”)

      Trial counsel therefore did not perform deficiently in failing to request jury

instructions on the lesser offenses. As Houston has failed to satisfy the first prong of

the Strickland standard, his ineffective assistance claim fails.

      Judgment affirmed. Doyle, C. J. and Phipps, P. J., concur.




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