                               THIRD DIVISION
                               DILLARD, P. J.,
                            GOBEIL and HODGES, 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


                                                                    October 15, 2019




In the Court of Appeals of Georgia
 A19A1118. ANDERSON v. THE STATE.

      GOBEIL, Judge.

      Following a jury trial, Nijee Anderson was convicted of robbery by sudden

snatching (Count 1), possession of methamphetamine (Count 2), possession of a drug

related object (Count 3), and two counts of simple battery (Counts 4 and 5). Anderson

filed a motion for new trial, which the trial court denied. Anderson appeals,

contending that (i) the evidence was insufficient to sustain his convictions; (ii) trial

counsel provided ineffective assistance in failing to timely communicate a plea offer

from the State; and (iii) the trial court erred in failing to merge the simple battery

charge in Count 4 into the robbery by sudden snatching charge in Count 1. For the

reasons that follow, we affirm the judgment below, but we vacate the sentence for the
simple battery charge in Count 4 with instruction that it be merged with the robbery

by sudden snatching charge in Count 1.

      Viewed in the light most favorable to the verdict,1 the evidence adduced at trial

shows that on October 16, 2016, the victims, Alfredo Monselvo and Victor Aliaz,2

went to a Flash Foods gas station in Houston County to put air in a tire on

Monselvo’s car. While the victims were handling the tire, Anderson approached them.

Anderson tried to start a conversation and requested money from Aliaz. When

Monselvo told Anderson to leave them alone and that they did not have any money,

Anderson reacted angrily and punched Monselvo in his face. During the attack,

Monselvo’s car keys fell from Monselvo’s pocket onto the ground. Anderson

      1
          Jackson v. Virginia, 443 U. S. 307 (99 SCt. 2781, 61 LE2d 560) (1979).
      2
        In the indictment, the first victim is identified as “Monselvo Alfredo” and the
second victim’s last name is spelled “Elias.” In the trial transcript, however, the first
victim stated that his name is “Alfredo Monselvo” . The trial transcript spells the
second victim’s last name as “Aliaz.” Despite the inconsistencies in setting forth the
victims’ names, Anderson does not dispute that the identities of the victims. “[A]
variance that exists between the victim’s name as alleged in the indictment and as
proven at trial is not fatal if the two names in fact refer to the same individual, such
as where a mere misnomer is involved[.]” Cockrell v. State, 248 Ga. App. 359, 362
(2) (545 SE2d 600) (2001) (citation, punctuation and footnote omitted).




                                           2
immediately grabbed Monselvo’s car keys and refused Monselvo’s requests to return

them.

        Monselvo went inside the gas station and asked the cashier to call the police

and report the incident. While the cashier was speaking with the 911 operator,

Monselvo and the cashier observed Anderson slap Aliaz in his face “real hard.”

        When the police arrived at the scene, Aliaz snatched the car keys out of

Anderson’s hand. The responding officer obtained statements describing the incident

from the victims and the cashier. The officer observed that Monselvo had reddening

to the right side of his face, and Aliaz had reddening to the left side of his face in the

form of a hand print, which were consistent with their descriptions of Anderson’s

attack. The officer also took photographs of the victims’ faces depicting their injuries.

Based upon his investigation at the scene, the officer determined that Anderson was

the aggressor during the incident. Anderson was arrested for the simple batteries of

the two victims.

        During a pat-down search of Anderson’s pockets incident to his arrest, the

officer found several items, including a clear plastic bag containing a crystal-like

substance in an empty cigarette pack, a spoon with burn marks on the bottom of it,



                                            3
and a clear glass pipe.3 In addition, the officer discovered a syringe containing a clear

substance inside a backpack that Anderson was carrying. The officer testified that he

had experience investigating methamphetamine crimes and was familiar with the

appearance of methamphetamine, which he described as a clear, crystal, shard-like

substance. The officer further testified that based on his knowledge of how

methamphetamine can be ingested, a spoon is used to heat methamphetamine until

it turns into a liquid, a glass pipe is used to smoke methamphetamine, and a syringe

is used to inject methamphetamine.

      Field testing of the substances found inside Anderson’s clear plastic bag and

syringe yielded positive results for methamphetamine. The substance inside the clear

plastic bag was sent to the GBI Crime Lab for additional testing. The forensic chemist

who tested the substance was qualified as an expert at trial. The forensic chemist

testified that the substance tested positive for methamphetamine, a Schedule II

controlled substance, and weighed less than one gram.

      Anderson was charged with robbery by sudden snatching, possession of

methamphetamine, possession of a drug related object, and two counts of simple

      3
        The police investigation, Anderson’s arrest, and Anderson’s search incident
to arrest were recorded by the responding officer’s body camera. The body camera
footage was introduced into evidence and played for the jury at trial.

                                           4
battery. At trial, the jury found Anderson guilty on all counts. The trial judge

sentenced Anderson to a total of ten years, to serve three years in confinement and the

remainder on probation.

      1. On appeal, Anderson contends, generally, that the evidence was insufficient

to sustain his convictions. His contention is without merit.

             On appeal from a criminal conviction, the evidence must be
      construed in a light most favorable to the verdict and [Anderson] no
      longer enjoys a presumption of innocence. In evaluating the sufficiency
      of the evidence to support a conviction, we do not weigh the evidence
      or determine witness credibility, but only determine whether a rational
      trier of fact could have found the defendant guilty of the charged
      offenses beyond a reasonable doubt. McGhee v. State, 303 Ga. App.
      297, 297 (1) (692 SE2d 864) (2010)(citations and punctuation omitted).
      We apply this standard to address Anderson’s sufficiency claim.


      (a) Robbery by sudden snatching. “A person commits the offense of robbery

when, with intent to commit theft, he takes property of another from the person or the

immediate presence of another . . . [b]y sudden snatching.” OCGA § 16-8-40 (a) (3).

“[T]he immediate presence of the victim stretches fairly far, and robbery convictions

are usually upheld even out of the physical presence of the victim if what was taken

was under his control or his responsibility and if he was not too far distant[.]” Brown


                                          5
v. State, 309 Ga. App. 511, 513-514 (1) (710 SE2d 674) (2011) (punctuation and

footnote omitted). Moreover, “[f]orce is implicit in sudden snatching, both as a fact

and as a legal proposition, the force being that effort necessary for the robber to

transfer the property taken from the owner to his possession.” Dotson v. State, 160

Ga. App. 898, 899 (1) (288 SE2d 608) (1982) (citation omitted).

      The evidence in this case showed that before the incident, Monselvo had his

car keys in his pocket. During Anderson’s attack, Monselvo’s car keys fell from

Monselvo’s pocket onto the ground. Anderson immediately grabbed Monselvo’s car

keys from the ground in Monselvo’s immediate presence and refused to return them.

This evidence was sufficient to establish Anderson’s commission of the robbery by

sudden snatching offense. See Brown, 309 Ga. App. at 513-514 (1) (affirming

conviction for robbery by sudden snatching when defendant took a wallet from the

victim’s immediate presence and the victim was conscious of the robbery as it

occurred); Dotson, 160 Ga. App. at 899 (1) (affirming conviction for robbery by

sudden snatching when defendant distracted the victim and snatched the victim’s

property).




                                         6
      (b) Possession of methamphetamine. OCGA § 16-13-30 (a)4 prohibits the

possession of any controlled substance. OCGA § 16-13-26 (3) (B) identifies

methamphetamine as a Schedule II controlled substance. During the pat-down search

of Anderson’s person incident to his arrest, the officer discovered a clear plastic bag

containing a crystal-like substance that subsequently tested positive as

methamphetamine. This evidence overwhelmingly established Anderson’s guilt of

this drug possession offense. See McGhee, 303 Ga. App. at 298 (1) (a) (testimony that

methamphetamine was found in defendant’s wallet during the pat-down search

incident to his arrest was sufficient to support conviction for possession of

methamphetamine).

      (c) Possession of a drug related object. OCGA § 16-13-32.2 (a) prohibits the

possession with the intent to use any object for the purpose of injecting a controlled

substance. Upon searching Anderson’s backpack, the officer discovered a syringe

containing a substance that tested positive as methamphetamine. The officer testified

that, based upon his experience with investigating drug crimes, the syringe was used

for injecting methamphetamine. Based upon this evidence, Anderson’s conviction for


      4
          OCGA § 16-13-30 (a) pertinently states, that “it is unlawful for any person
to . . . possess[] or have under his or her control any controlled substance.”

                                          7
possession of a drug related object was authorized. See McGhee, 303 Ga. App. at 299

(1) (b) (evidence was sufficient to sustain defendant’s conviction for possession of

drug-related object when a small glass pipe containing methamphetamine residue was

found in defendant’s pocket during the pat-down search incident to his arrest, and the

deputy having experience investigating drug crimes testified that the pipe was used

for smoking methamphetamine).

      (d) Simple battery. “A person commits the offense of simple battery when he

. . . [i]ntentionally makes physical contact of an insulting or provoking nature with

the person of another[.]” OCGA § 16-5-23 (a) (1). “Physical contact is required to

prove simple battery.” Hancock v. State, 188 Ga. App. 870, 871 (374 SE2d 757)

(1988).

Anderson was charged with one count of simple battery based on his act of slapping

Monselvo in the face. He was charged with a second count of simple battery based

on his act of slapping Aliaz in the face. The trial evidence shows that during the

incident, Anderson became aggressive and struck both Monselvo and Aliaz in their

faces with his hand. This evidence authorized Anderson’s convictions for simple

battery. See Bedley v. State, 189 Ga. App. 90, 90-91 (1) (374 SE2d 841) (1988)

(defendant’s simple battery conviction was authorized by testimony from the victim

                                          8
and a witness stating that the defendant slapped the victim); Hancock, 188 Ga. App.

at 871 (affirming defendant’s simple battery conviction when the indictment alleged

that defendant committed the offense by “striking the [victim] about the body with

his fist,” and the State met its burden of proof based on evidence that defendant

struck the victim with his hand).

      2. Anderson also claims that trial counsel provided ineffective assistance in

failing to timely communicate a plea offer from the State. Again, his claim provides

no basis for reversal.

             [W]hether a defendant has received constitutionally ineffective
      assistance of counsel presents a mixed question of law and fact. [W]hen
      reviewing a trial court’s decision [on] a motion for new trial based on
      ineffective assistance of counsel, we defer to the trial court’s findings of
      fact unless clearly erroneous, but owe no such deference to its
      conclusions of law which we apply independently to the facts.


State v. Lexie, 331 Ga. App. 400, 400 (771 SE2d 97) (2015) (citations omitted). We

recognize that “[a] defendant is entitled to be fully informed of certain consequences

of his decision to accept or reject a plea offer, including the right to the informed

legal advice of counsel regarding the possible sentences that could be imposed

following a conviction at trial.” Gramiak v. Beasley, 304 Ga. 512, 514 (I) (A) (820


                                           9
SE2d 50) (2018). “[C]laims of ineffective assistance of counsel in the plea bargain

context are governed by the two-part test set forth in [Strickland v. Washington, 466

U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984)].” Missouri v. Frye, 566 U. S. 134,

140 (II) (A) (132 SCt 1399, 182 LE2d 379) (2012). To prevail on a claim of

ineffective assistance of counsel in the context of a plea bargain, a defendant must

show that his counsel’s representation fell below an objective standard of

reasonableness and that the outcome of the plea process would have been different

with competent advice. Lafler v. Cooper, 566 U. S. 156, 162-170 (II) (A), (B) (132

SCt 1376, 182 LE2d 398) (2012); Lexie, 331 Ga. App. at 401.

      Because the courts of this State are obligated to follow the rulings of the
      United States Supreme Court with respect to the Sixth Amendment
      standard for determining prejudice in cases asserting ineffective
      assistance of counsel, Georgia courts must apply the standard
      established in Lafler and Frye for demonstrating compliance with the
      Sixth Amendment right of counsel in cases involving plea offers.


Gramiak, 304 Ga. at 515 (I) (B).

      At the motion for new trial hearing, Anderson’s trial counsel testified regarding

the plea discussions that he had with the prosecutor and Anderson. According to trial

counsel, on the afternoon before the beginning of trial, the prosecutor made a plea


                                          10
offer that was contingent upon the prosecutor’s ability to locate the State’s witnesses.

The offer was communicated to trial counsel by phone, while he was on his way to

a hearing in another county. Trial counsel met with Anderson later that evening, they

reviewed the offer, and Anderson agreed to accept it. Trial counsel tried to call the

prosecutor later that evening at 9:30 p.m. to communicate Anderson’s acceptance of

the plea offer, but it was after normal business hours. When trial counsel arrived in

court the next morning, the prosecutor withdrew the plea offer because the State had

found their witnesses.5 The jury had already been seated, and the trial proceeded that

morning.

      Anderson also testified at the motion for new trial hearing. Anderson recalled

that his trial counsel had spoken to him in jail regarding the plea offer, and that he

agreed to accept the offer. Nevertheless, there was no evidence that Anderson’s

      5
       Anderson has not alleged error on the ground of the prosecutor’s decision to
withdraw the plea offer on the morning of trial. “[U]ntil accepted, the State may
withdraw a plea offer at any time (unless for consideration the State has agreed
otherwise).” Scott v. State, 302 Ga. App. 111, 115 (3) (690 SE2d 242) (2010). A
defendant’s purported acceptance of any plea offer must be communicated to the
prosecuting attorney to constitute acceptance prior to withdrawal. Sparks v. State, 232
Ga. App. 179, 183 (3) (c) (501 SE2d 562) (1998). Because there was no consideration
binding the prosecutor to keep the plea offer open until the morning when the trial
was to begin, the prosecutor was authorized to withdraw the plea offer before
communication of its acceptance was made. See id.


                                          11
decision to accept the plea offer was communicated to the prosecutor prior to the

morning of trial.

      Anderson has not demonstrated that trial counsel was deficient in failing to

timely communicate the plea offer under the circumstances presented. To satisfy the

deficiency prong, a defendant must demonstrate that his attorney performed in an

objectively unreasonable way “considering all the circumstances and in the light of

prevailing professional norms.” Yarn v. State, 305 Ga. 421, 426 (4) (826 SE2d 1)

(2019). Here, the evidence shows that trial counsel had in fact promptly

communicated the plea offer to Anderson on the same day that the offer was made.6

There is no evidence indicating that trial counsel performed in an objectively

unreasonable way and contrary to prevailing professional norms under these

circumstances.

      Moreover, Anderson’s assertion of trial counsel’s deficient performance fails

since neither trial counsel nor Anderson could recall the exact terms of the plea offer.

Trial counsel claimed that the plea offer was for a probated sentence. Anderson

      6
        Anderson concedes that there is no rule requiring defense counsel to abandon
their obligations and immediately communicate a plea offer within a few hours of
receiving a plea offer from the prosecutor. Trial counsel did not violate prevailing
professional norms by meeting with Anderson to discuss the plea offer on the same
day that the plea offer was received.

                                          12
claimed that the plea offer involved pleading to the drug charges and dropping the

rest of the charges, but he could not recall the sentence offered. The same prosecutor

who presented the State’s case at trial also defended against Anderson’s motion for

new trial at the hearing. The prosecutor disputed the testimony regarding the plea

offer, and he informed the trial court that no plea offer for straight probation was ever

made. The conflicts between the recollections of the terms for the plea offer presented

a question of credibility for the trial court’s determination. “When considering claims

of ineffectiveness of counsel, the trial judge determines witness credibility and is not

required to accept the defendant’s version of events.” Ansley v. State, 325 Ga. App.

226, 235 (4) (a) (750 SE2d 484) (2013) (citation and punctuation omitted). The trial

court favored the prosecutor’s recollection regarding the plea offer and concluded that

trial counsel was not deficient in failing to plead Anderson to probation because such

was not an available option. Anderson has shown neither deficient performance nor

prejudice to the extent that he was seeking straight probation, which the prosecutor

testified was never an option in the plea offer. See Taylor v. State, 298 Ga. App. 145,

147 (2) (b) (679 SE2d 371) (2009) (defendant failed to demonstrate that his counsel

rendered deficient performance in failing to advise him of a plea offer when there was

no competent evidence showing that the State had actually made the alleged plea

                                           13
offer). Compare Syms v. State, 331 Ga. App. 225, 227-228 (770 SE2d 305) (2015)

(concluding that the trial court erred by denying defendant’s motion to enforce a plea

agreement where an agreement as to terms was clearly made, but the State had

changed its mind and no longer wanted to honor the plea agreement).

      Pretermitting whether trial counsel rendered deficient performance by failing

to timely communicate Anderson’s acceptance of the plea offer to the prosecutor

before its withdrawal, Anderson nevertheless has failed to show the required element

of prejudice.

      To show prejudice from ineffective assistance of counsel where a plea
      offer has lapsed . . . because of counsel’s deficient performance,
      defendants must demonstrate . . . a reasonable probability the plea would
      have been entered without the prosecution canceling it or the trial court
      refusing to accept it, if they had the authority to exercise that discretion
      under state law. Frye, 566 U. S. at 147 (II) (C). In other words, a
      defendant is required to show that the accepted plea offer would have
      been adhered to by the prosecution and accepted by the trial court. See
      id. at 147 (II) (C), 150 (III). Here, Anderson did not present any
      evidence establishing this standard. Particularly in light of Anderson’s
      inability to show the terms of the purported plea offer, Anderson has not
      established that the plea offer would have been accepted by the trial
      court. As a result, Anderson’s claim of ineffective assistance of counsel
      fails.


                                          14
      3. In his last claim of error, Anderson asserts that the trial court erred in failing

to merge the simple battery charge in Count 4 into the robbery by sudden snatching

charge in Count 1. Based on the indictment’s allegations and the trial evidence

establishing the offenses, we must agree.7

             Under OCGA § 16-1-7 (a) (1), when the same conduct establishes
      the commission of more than one crime, a defendant may be prosecuted
      for both crimes, but cannot be convicted of more than one crime if one
      crime is included in the other. For purposes of merger, one crime is
      included in another if either it is established by proof of the same or less
      than all the facts or a less culpable mental state than is required to
      establish the commission of the other crime charged or if the included
      crime differs from the crime charged only in the respect that a less
      serious injury or risk of injury to the same person or a lesser kind of
      culpability suffices to establish its commission.


Brockington v. State, 316 Ga. App. 90, 92 (1) (728 SE2d 753) (2012) (citation

omitted). “Whether offenses merge is a legal question, which we review de novo.”

Lucas v. State, 328 Ga. App. 741, 743 (1) (760 SE2d 257) (2014) (footnote omitted).




      7
        Anderson’s sentences for the crimes ran concurrently. Regardless, merger of
convictions is required even when all sentences run concurrently. See Nazario v.
State, 293 Ga. 480, 482-483 (1), 491-492 (3) (d) (746 SE2d 109) (2013) (addressing
merger issues when all of the sentences ran concurrently).

                                           15
It is undisputed that simple battery is not, as a matter of law, a lesser included offense

of robbery by sudden snatching since the elements required to prove each offense are

different. Simple battery focuses on injury to the person while the robbery by sudden

snatching offense involves the taking of property from the person of another. See

OCGA §§ 16-5-23 (a) (1) (simple battery), 16-8-40 (a) (3) (robbery by sudden

snatching). Cf., Givens v. State, 184 Ga. App. 498, 500 (3) (361 SE2d 830) (1987)

(ruling that simple battery is not, as a matter of law, a lesser included offense of

robbery by force). Thus, the question in this case is whether the simple battery offense

should have been merged into the robbery by sudden snatching offense as a matter

of fact.

             The key question in determining whether a merger has occurred
       [as a matter of fact] is whether the different offenses are proven with the
       same facts. For example, if one crime is complete before the other takes
       place, the two crimes do not merge. However, if the same facts are used
       to prove the different offenses, the different crimes merge.


Bonner v. State, 308 Ga. App. 827, 830 (2) (709 SE2d 358) (2011). As indicted in this

case, Anderson’s charges for robbery by sudden snatching in Count 1 and simple

battery in Count 4 both involved Anderson’s act of striking Monselvo. Specifically,

the indictment averred that Anderson committed the offense of robbery by sudden

                                           16
snatching in that Anderson “caused [Monselvo] to drop his car keys on the ground

by slapping him, grabbed the keys, and refused to return them[.]” Anderson’s act of

slapping Monselvo was alleged as part of the robbery purportedly to reflect the force

necessary for Anderson to transfer Monselvo’s car keys to his possession. See

Dotson, 160 Ga. App. at 899 (1) (the force for robbery by sudden snatching is the

“effort necessary for the robber to transfer the property taken from the owner to his

possession.”). In setting forth the simple battery offense, the indictment also averred

that Anderson “slapp[ed] [Monselvo] in the face[.]” “Averments in an indictment as

to the specific manner in which a crime was committed are not mere surplusage.”

Talton v. State, 254 Ga. App. 111, 112 (1) (561 SE2d 139) (2002). The State therefore

was required to prove that Anderson struck Monselvo in the commission of both

offenses. Id.

      At trial, Monselvo testified that Anderson struck him in the face once. Because

the simple battery was established by proof of the same or less than all the facts

required to support the robbery by sudden snatching offense as charged, those

offenses should have merged for purposes of sentencing. See Bonner, 308 Ga. App.

at 831 (2) (concluding that the battery convictions merged with the robbery

conviction since the evidence of simple battery was the same evidence required to

                                          17
show the force used to accomplish the robbery). In light of the trial court’s failure to

merge the simple battery offense into the robbery by sudden snatching offense, we

must vacate the sentence and remand the case to the trial court for resentencing.

      Judgment affirmed in part, sentence vacated and case remanded for
resentencing. Dillard, P. J., and Hodges, J., concur.




                                          18
