                            THIRD DIVISION
                             MILLER, P. J.,
                       MCFADDEN and MCMILLIAN, 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


                                                                  November 16, 2016




In the Court of Appeals of Georgia
 A16A1276. DICKSON v. THE STATE.

      MCFADDEN, Judge.

      James Dickson appeals his convictions for first degree vehicular homicide,

serious injury by vehicle, possession of a schedule IV controlled substance, driving

under the influence of a controlled substance, and driving on the wrong side of the

road. He argues that the evidence is insufficient to support the vehicular homicide,

serious injury by vehicle, and DUI convictions. We find that the evidence was

sufficient to support the vehicular homicide and serious injury by vehicle convictions.

But because a lesser included DUI predicate offense may not stand as a separate

conviction when the defendant has been convicted of vehicular homicide, we vacate

Dickson’s DUI conviction and remand for resentencing.
      Dickson also argues that the trial court erred by denying his motion for a

mental examination, but Dickson has not shown that the trial court abused his

discretion in finding no reasonable doubt as to Dickson’s competency and therefore

no need for further proceedings on the matter. Finally, Dickson argues that trial

counsel was ineffective, but he has not met his burden of showing deficient

performance. Accordingly, we affirm in part, vacate in part, and remand for

resentencing.

      1. Facts.

      “On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, and the [defendant] is no longer entitled to the presumption

of innocence.” Newsome v. State, 324 Ga. App. 665 (751 SE2d 474) (2013) (citation

omitted). “We determine only whether the evidence authorized the jury to find the

defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that

evidence nor judge the credibility of the witnesses.” Byrd v. State, 325 Ga. App. 24

(752 SE2d 84) (2013) (citation omitted).

      So viewed, the evidence showed that Julia Sikes Powell was driving a pickup

truck and trailer southbound on State Route 17 near Canon, Georgia. Her husband,

Bobby Bland, was sitting in the passenger seat. Billy Joey Hart was driving a pickup

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truck behind Powell. Dickson, who was driving a Buick sedan north on State Route

17, crossed the center line and collided with Powell’s and Hart’s trucks. Bland and

Hart were killed in the wreck. Powell ruptured her spleen, which had to be surgically

removed. Dickson was taken to the hospital and his blood and urine were tested and

indicated the presence of diazepam, nordiazepam, alprazolam, methadone, morphine,

THC metabolites, and alcohol.

      The state charged Dickson with two counts of homicide by vehicle in the first

degree, in that he caused the deaths of Hart and Bland by operating a motor vehicle

while under the influence of diazepam, nordiazepam, alprazolam, methadone, and

marijuana to the extent that he was a less safe driver (Counts 1 and 2; OCGA § 40-6-

393 (a)); two counts of homicide by vehicle in the first degree, in that he caused the

deaths of Hart and Bland by operating a motor vehicle while his blood-alcohol

concentration was .08 or greater (Counts 3 and 4; OCGA § 40-6-393 (a)); one count

of serious injury by vehicle for causing bodily harm to Julia Sikes Powell by

rupturing her spleen while driving under the influence of diazepam, nordiazepam,

alprazolam, methadone, and marijuana to the extent that he was a less safe driver

(Count 5; OCGA § 40-6-394); one count of serious injury by vehicle for causing

bodily harm to Julia Sikes Powell by rupturing her spleen while operating a motor

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vehicle while his blood-alcohol concentration was .08 or greater (Count 6; OCGA §

40-6-394); one count of possession of a schedule IV controlled substance, alprazolam

(Count 7; OCGA § 16-13-30 (a)); one count of driving under the influence of a

controlled substance (Count 8; OCGA § 40-6-391 (a) (6)); one count of driving under

the influence of drugs to the extent that he was a less safe driver (Count 9; OCGA §

40-6-391 (a) (2)); one count of driving under the influence of alcohol while his blood-

alcohol concentration was .08 grams or more (Count 10; OCGA § 40-6-391 (a) (5));

one count of driving under the influence of alcohol to the extent he was a less safe

driver (Count 11; OCGA § 40-6-391 (a) (1)); and one count of driving on the wrong

side of the roadway (Count 12; OCGA § 40-6-40 (a)).

      The jury found Dickson guilty of all counts. The trial court merged counts 3

and 4 (vehicular homicide based on DUI alcohol, per se) into the convictions on

counts 1 and 2 (vehicular homicide based on DUI drugs, less safe); count 6 (serious

injury by vehicle based on DUI alcohol, per se) into the conviction on count 5

(serious injury by vehicle based on drugs, less safe); and DUI counts 9, 10, and 11

(DUI drugs, less safe; DUI alcohol, per se; DUI alcohol, less safe) into the DUI

conviction on count 8 (DUI, drugs per se). Consequently, the court sentenced

Dickson on his convictions on vehicular homicide based on DUI drugs, less safe;

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serious injury by vehicle based on drugs, less safe; DUI, drugs per se; possession of

a controlled substance; and driving on the wrong side of the roadway. The court

sentenced Dickson to consecutive 15-year terms on the vehicular homicide

convictions; a consecutive 15-year term on the serious injury by vehicle conviction;

a consecutive five-year term on the possession of a controlled substance conviction;

a 12-month term on the DUI conviction; and a 12-month term on the driving on the

wrong side of the roadway conviction.

      2. Sufficiency of the evidence.

       Dickson challenges the sufficiency of the evidence to support all but his

convictions of possession of a controlled substance and driving on the wrong side of

the roadway. We find the evidence sufficient to support the vehicular homicide and

serious injury by vehicle convictions. We do not reach his challenge to the sufficiency

of the evidence to support the DUI conviction because that conviction must be

vacated. As for the counts that were merged, we reject Dickson’s evidentiary

challenge as moot.

      (a) Vehicular homicide and serious injury by vehicle.

      As noted, Dickson was convicted of two counts of homicide by vehicle in the

first degree under OCGA § 40-6-393 (a), in that he caused the deaths of Hart and

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Bland through a violation of OCGA § 40-6-391 by operating a motor vehicle while

under the influence of diazepam, nordiazepam, alprazolam, methadone, and marijuana

to the extent that he was a less safe driver. He was convicted of serious injury by

vehicle under OCGA § 40-6-394 for causing bodily harm to Julia Sikes Powell by

rupturing her spleen through a violation of OCGA § 40-6-391 by operating a motor

vehicle while under the influence of diazepam, nordiazepam, alprazolam, methadone,

and marijuana to the extent that he was a less safe driver. Dickson argues that the

evidence did not show that he was a less safe driver.

      As this [c]ourt previously has explained, mere presence of an intoxicant
      is not the issue. In a less safe case, the (s)tate must prove that the
      defendant had impaired driving ability as a result of ingesting an
      intoxicant. It is not necessary for an officer to give his opinion or state
      specifically that a defendant was a less safe driver because the trier of
      fact may form its own opinion based on the indicia pointing to impaired
      driving ability.


Kar v. State, 318 Ga. App. 379, 381 (2) (733 SE2d 387) (2012) (citation and

punctuation omitted). Here, the state presented testimony of an expert in

pharmacology and toxicology that the drugs in Dickson’s system would have made

him a hazardous driver and that he was severely impaired. This testimony, in

conjunction with the other evidence, amply supported the vehicular homicide and

                                          6
serious injury by vehicle convictions. See Wright v. State, 304 Ga. App. 651, 652-653

(1) (697 SE2d 296) (2010) (holding evidence that appellant admitted to taking drugs,

lab tests confirming the presence of drugs in his blood, and evidence that his vehicle

crossed the centerline and caused a collision was sufficient to establish appellant’s

impairment).

      (b) Driving under the influence.

      We do not reach Dickson’s evidentiary challenge to his DUI conviction

because that conviction merges with the vehicular homicide convictions as a lesser

included offense. Leachman v. State, 286 Ga. App. 708, 710 (649 SE2d 886) (2007)

(citation and footnote omitted). Accordingly, “we vacate [Dickson’s DUI] conviction

and his sentence and remand the case to the trial court for resentencing, which moots

his challenges to his [DUI] conviction.” Mack v. State, __ Ga. App. __ (__ SE2d __)

(Case No. A16A0966, decided Oct. 12, 2016).

      (c) Merged counts.

      To the extent Dickson challenges the sufficiency of the evidence to support the

counts that were merged into others, those counts were vacated by operation of law,

and his challenge to the sufficiency of the evidence to support them is moot.



                                          7
Anderson v. State, 299 Ga. 193, 196 (1) n. 4 (787 SE2d 202) (2016) (citations

omitted).

      3. Denial of motion for competency evaluation.

      Dickson argues that the trial court erred by denying his motion for an

evaluation of his competency. We disagree.

      The trial court conducted a hearing on the motion, at which he heard testimony

from the jail administrator about his interactions with Dickson, including that

Dickson had written coherent letters to the editor of a newspaper about jail

conditions, and the nurse at the jail, who testified about her daily interactions with

Dickson. The trial court denied the motion based on the testimony of the witnesses

and his own observations of Dickson.

      “The question on appeal . . . is whether the trial court abused [his] discretion

in finding no reasonable doubt as to [Dickson’s] competency and therefore no need

to conduct further proceedings,” such as ordering a mental examination. Wadley v.

State, 295 Ga. App. 556, 557-558 (672 SE2d 504) (2009) (citation omitted). The

record shows that there was sufficient evidence to support the trial court’s conclusion

that Dickson was competent to stand trial. Id. at 558. Dickson has not shown trial

court error. See Jackson v. State, 294 Ga. 431, 434 (4) (754 SE2d 322) (2014).

                                          8
      4. Assistance of counsel.

      Dickson argues that he received ineffective assistance of trial counsel in four

ways: 1) trial counsel failed to move for a mental examination until four days before

trial; 2) trial counsel informed the jury that Dickson had a lifelong drug and alcohol

problem and had more than twenty criminal charges; 3) trial counsel failed to object

to the admission of evidence of Dickson’s arrests that had not resulted in convictions;

and 4) trial counsel failed to file a general demurrer to the charge of driving under the

influence of a controlled substance.

      To prevail on his claim of ineffective assistance, Dickson must prove

      both that his trial counsel’s performance was deficient and that there is
      a reasonable probability that the trial result would have been different
      if not for the deficient performance. Strickland v. Washington, 466 U.
      S. 668 (104 SCt 2052, 80 LE2d 674) (1984). If an appellant fails to meet
      his or her burden of proving either prong of the Strickland test, the
      reviewing court does not have to examine the other prong.


Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012) (citations and

punctuation omitted).

      Initially we observe that Dickson failed to call trial counsel to testify at the

motion for new trial hearing. Without trial counsel’s testimony, “it is difficult [for


                                           9
Dickson] to overcome the strong presumption that counsel’s conduct was

professional.” Hall v. State, 286 Ga. 358, 360 (2) (687 SE2d 819) (2010) (citations

omitted).

      Dickson argues that trial counsel’s failure to move for a mental examination

until four days before trial amounted to deficient performance. As noted in Division

3, however, the trial court heard evidence and based his denial of the motion on that

evidence as well as his own observations. And nothing in the record indicates that the

court would have granted the motion had counsel made it earlier.

      Dickson argues that trial counsel performed deficiently by informing the jury

that Dickson had a lifelong drug and alcohol problem and had more than 20 criminal

charges, and by failing to object to the admission of evidence of Dickson’s arrests

that had not resulted in convictions. But the trial court had granted the state’s motion

to introduce other acts evidence under OCGA § 24-4-404 (b). Given that the

introduction of such evidence was likely, we cannot say that any attempt trial counsel

may have made to short-circuit its impact was deficient, particularly without trial

counsel’s testimony on this issue. Moreover, nothing in OCGA § 24-4-404 (b) limits

the admission of such evidence to other convictions, so any objection to the evidence

on the ground that the arrests had not resulted in convictions would have been

                                          10
without merit. OCGA § 24-4-404 (b) (concerns “prior crimes, wrongs, or acts”).

“[T]rial counsel cannot be deemed ineffective for failing to make a meritless

objection.” Hernandez v. State, __ Ga. __, __ (4) (__ SE2d __) 2016 Ga. LEXIS 645

at *9 (Case No. S16A0936, decided Oct. 17, 2016) (citation omitted).

      Finally, Dickson argues that trial counsel was ineffective for failing to file a

general demurrer to the count of the indictment alleging DUI drugs, per se. Dickson

cannot show any prejudice in this regard because, as directed in Division (2) (b), upon

remand, this charge will be merged into the vehicular homicide convictions.

      Dickson has not met his burden of showing “both that his trial counsel’s

performance was deficient and that there is a reasonable probability that the trial

result would have been different if not for the deficient performance.” Wright, 291

Ga. at 870 (2). Thus, he “cannot sustain his claim of ineffective assistance of

counsel.” Hall, 286 Ga. at 360 (2).

      Judgment affirmed in part, vacated in part, and case remanded for

resentencing. Miller, P. J., and McMillian, J., concur.




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