                                 FIRST DIVISION
                                 BARNES, P. J.,
                              GOBEIL and PIPKIN, 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.
                                https://www.gaappeals.us/rules

                     DEADLINES ARE NO LONGER TOLLED IN THIS
                     COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
                     THE TIMES SET BY OUR COURT RULES.


                                                                       June 29, 2020



In the Court of Appeals of Georgia
 A20A0527. CRIDER v. THE STATE.

       GOBEIL, Judge.

       A jury found Cattrina Crider guilty of one count of aggravated assault – family

violence, three counts of aggravated battery – family violence, and two counts of

possession of a firearm during the commission of a felony, based on her pointing a

firearm at and shooting Arnold Kerlin, her boyfriend at the time, in the stomach.

Crider appeals from her judgment of conviction and the denial of her motion for new

trial, asserting that: (1) trial counsel was ineffective for four distinct reasons; (2) the

trial court erred by refusing to instruct the jury on self-defense; and (3) the trial court

erred at sentencing by refusing to merge two of her convictions. Crider also filed a

supplemental brief asking this Court to consider the cumulative effect of counsel’s
errors in addition to the trial court’s failure to give the jury charge on self-defense.

For the reasons set forth below, we affirm.

      On appeal from a criminal conviction, the evidence must be viewed in
      the light most favorable to support the verdict, and the defendant no
      longer enjoys the presumption of innocence; moreover, an appellate
      court determines evidence sufficiency and does not weigh the evidence
      or determine witness credibility.


Williams v. State, 333 Ga. App. 879, 879 (777 SE2d 711) (2015) (citation and

punctuation omitted).

      Thus viewed in the light most favorable to the verdict, the record shows that

Kerlin and Crider were in a romantic relationship and living together in December

2014. Not long after Crider moved into Kerlin’s apartment, Kerlin began to see “red

flags” in Crider’s behavior, such as severe mood swings and alcohol abuse. Crider

and Kerlin both drank regularly during the relationship. The relationship devolved,

and Crider began to binge drink and would become violent, including an incident

where she punched Kerlin in the mouth. When this happened, Kerlin would leave the

apartment. At some point, Kerlin told Crider that he wanted her to move out of the

apartment when the lease ended, which made Crider angry.




                                           2
       On December 6, 2014, Crider began drinking early in the morning. Kerlin was

watching football and drinking beer that afternoon; he estimated that he drank three

or four beers over the course of a few hours. Crider continued drinking heavily

throughout the day. Around 9 p.m. that evening, Crider began to argue with Kerlin,

and Kerlin moved into the bedroom and shut and locked the door to get away from

her. Crider kicked the door open, and Kerlin decided to leave the apartment. As he

began to collect his things, he noticed that his wallet, keys, and cell phone were not

in their normal location. Kerlin believed that Crider had taken them, as she had done

in the past.

       Kerlin left the bedroom to look for his keys in his coat, which was located in

the living room. When he walked back into the bedroom, Crider was kneeling on the

floor of the bedroom, with a gun drawn, pointed at Kerlin. Kerlin knew that Crider

owned a firearm, but he had never seen her with it in the past. Kerlin did not take her

seriously at first, laughed at her, and asked: “[Y]ou’re going to shoot me so I can’t

leave?” Kerlin had a gun of his own that he kept under his mattress, although it was

not loaded.1 Kerlin reached down, picked up his unloaded gun, and asked: “Are we


       1
         Kerlin kept the gun’s magazine in a separate pouch on his side of the bed. He
testified that Crider knew that he kept his gun separate from the ammunition.

                                          3
going to have a shootout now?” He then put his gun on the dresser, telling Crider that

she was being ridiculous.

      Kerlin “stood there for a minute[]” and asked Crider to give him his keys so

that he could leave. Crider did not answer, she “just kept pointing the gun at [Kerlin]”

and “kept following [him] around with it.” Kerlin went to walk around Crider, to get

to his closet, and Crider “put the gun up to [his] stomach and mumbled something

along of the lines of you’re not going anywhere.” Kerlin went to push the gun away,

and he heard a “bang” and “knew the gun had gone off.” Kerlin did not feel the pain

from the gunshot initially, but then he looked down and saw the gunshot wound in

his stomach. Crider was immediately upset by what had happened, and fell to the

floor with the gun still in her hand. Kerlin began to yell for help and made it out his

front door, where he saw his neighbor.

      The neighbor, who heard “a help-me kind of a noise[,]” saw Kerlin standing

outside the apartment, holding his abdomen and explaining that he had been shot. The

neighbor called 911 The officer who responded to the scene found Kerlin with a

gunshot wound in his stomach. The officer then saw Crider, whom he described as

“hysterical” and “completely out of it, zoned out, and . . . kind of incoherent.” The

officer believed that she was intoxicated, and he smelled alcohol on her person.

                                           4
Crider told the officer that the shooting was an accident and that Kerlin had pulled

the trigger. She also told the officer that Kerlin had grabbed her by the hair and held

her down and hurt her head, although she declined medical attention.

      The bullet caused injuries to Kerlin’s stomach, liver, intestines, and colon.

Kerlin later was diagnosed with post-traumatic stress disorder and manic depressive

disorder, and is no longer able to work as a result of the incident.

      Based on this information, Crider was indicted for one count of aggravated

assault – family violence (Count 1), three counts of aggravated battery – family

violence (Counts 2, 3, and 4), and two counts of possession of a firearm during the

commission of a felony (Counts 5 and 6).

      Before trial, the State filed a notice of its intent to introduce evidence of

another family violence incident that occurred between Crider and her ex-husband,

Bart Beasley, pursuant to OCGA § 24-4-404 (b) and OCGA § 24-4-403. At the

hearing, Beasley testified about the incident, which occurred in February 2011, during

which Crider “attacked [him].” Crider had consumed a large amount of alcohol, and

she followed him around the house, insulting him. Beasley went to use the restroom,

and Crider flung the door open and punched him in the face. Beasley wrestled her to

the ground, and attempted to retreat, but Crider began to attack him again. Beasley

                                          5
pushed her off of him, and she fell and hit her head on the counter. The confrontation

continued, and Crider took Beasley’s keys and wallet. Eventually, police arrived at

the house and spoke to the couple, but neither was arrested.

      Beasley testified that it was common in their marriage for Crider to get

intoxicated and physically attack him. During these incidents, Crider had never

pointed a gun at him, but she had always owned guns, and had retrieved a gun during

arguments. He also explained that she previously had taken away his keys and wallet

to keep him from leaving the house.

      At the 404 (b) hearing, trial counsel successfully argued that the other acts

testified to by Beasley were not relevant to prove lack of accident or mistake, and

there was a risk that the jury would improperly consider the evidence as highly

prejudicial propensity evidence. The trial court ruled further in Crider’s favor that the

State could not use the other-act evidence in its case-in-chief to prove her intent.

However, the trial court ruled that if Crider put forward a self-defense theory at trial,2

then the State could introduce this evidence in rebuttal, as it would then become



      2
        Trial counsel explained at the 404 (b) hearing that she might be pursuing a
self-defense theory for trial, and the trial court noted that it would not find a prima
facie showing of self-defense absent Crider’s testimony.

                                            6
relevant to whether Crider was the primary aggressor and therefore not justified in

shooting Kerlin.

      At trial, during opening statements, trial counsel explained that the shooting

was “a terrible, unfortunate accident, plain and simple.” Counsel described Crider’s

version of events – she and Kerlin were arguing, he became angry, she went into the

bedroom to gather some things to leave the house, Kerlin came into the bedroom with

his gun drawn, Crider grabbed her gun to defend herself, Kerlin grabbed for her gun,

and it accidently discharged. Defense counsel also told the jurors that they would hear

testimony from Crider about what happened that night, and they would see evidence

that Crider’s hand was bruised during the struggle with Kerlin for the gun.

      Several witnesses testified for the State, including Kerlin. Kerlin’s son also

testified that he had witnessed Crider being violent towards his father during their

relationship, especially after she had been drinking. After the State rested, the trial

court inquired as to whether Crider intended to testify on her own behalf, and defense

counsel replied that Crider had not yet decided and wanted to wait until after the other

defense witnesses had testified.

      Ultimately, the only witness called by the defense was a firearms expert, who

testified that there was a shell casing from a bullet that was jammed in Crider’s gun,

                                           7
which was consistent with someone having their hand on top of the gun as it was

fired. Trial counsel also admitted into evidence via stipulation a fire department

incident report, which stated that Kerlin reported at the scene that he and Crider were

“wrestling” when “the gun went off accidentally at point blank range.”

      Just before the defense rested, the parties discussed whether Crider had made

a prima facie showing of a self-defense theory. The State argued that she had not, but

if the court ruled that she had, it intended to call Crider’s ex-husband Beasley in

rebuttal to testify about the incidents where she had been drunk and violent in her

previous relationship. Trial counsel contended that Crider had made a showing that

would allow the jury to consider the self-defense question. The court stated that it had

not seen evidence that would support a justification defense, and Crider had not

opened the door that would allow the State to call Beasley as a rebuttal witness. The

court reserved its final ruling as to instructing the jury on self-defense, but indicated

that it was leaning towards not doing so. The defense then rested without Crider

testifying in her own defense.

      Over trial counsel’s objection, the trial court ruled that it would not instruct the

jury on justification/self-defense. Consistent with this ruling, defense counsel did not

make an explicit self-defense argument in closing, focusing instead on the accident

                                           8
defense, although trial counsel did stress that Kerlin also possessed a gun during the

incident and reached for her gun as well. She explained in detail that the firearms

expert’s testimony showed clearly that Kerlin’s hand was on the top of Crider’s gun

when it accidentally went off.

      Based on this evidence, the jury found Crider guilty of all charges. At

sentencing, the court found that the three aggravated battery convictions merged into

a single conviction and the two firearms convictions merged into a single conviction.

The court, however, did not merge the aggravated assault conviction with the

remaining aggravated battery conviction, although it ran the sentences concurrently.

The trial court imposed a total sentence of 25 years with 8 to serve in confinement

and the remainder on probation.

      Crider filed a motion for new trial, which the trial court denied after a hearing.

This appeal followed.

      1. In related claims of error, Crider contends that she received ineffective

assistance of trial counsel. To prevail on any of these claims, Crider must prove both

that her lawyer’s performance was deficient and that she suffered prejudice as a result

of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104

SCt 2052, 80 LE2d 674) (1984). “If [Crider] cannot meet [her] burden of proving

                                          9
either prong of the Strickland test, then we need not examine the other prong.”

Causey v. State, 319 Ga. App. 841, 842 (738 SE2d 672) (2013). “The trial court’s

determination that an accused has not been denied effective assistance of counsel will

be affirmed on appeal unless that determination is clearly erroneous.” Johnson v.

State, 214 Ga. App. 77, 78 (1) (447 SE2d 74) (1994) (citations and punctuation

omitted).

      With respect to the first prong of the Strickland test, deficient performance,

Crider must show that her attorney performed her duties at trial in an objectively

unreasonable way, considering all the circumstances, and in light of prevailing

professional norms. Strickland, 466 U. S. at 687-688 (III) (A).With respect to the

second prong of Strickland, to demonstrate that she suffered prejudice as a result of

trial counsel’s performance, Crider must prove “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.” Strickland, 466 U. S. at 694 (III) (B). “This burden, though not

impossible to carry, is a heavy one.” Arnold v. State, 292 Ga. 268, 270 (2) (737 SE2d

98) (2013), citing Kimmelman v. Morrison, 477 U. S. 365, 382 (II) (C) (106 SCt

2574, 91 LE2d 305) (1986).

                                          10
      (a) Crider first asserts that trial counsel “seriously mishandl[ed]” the

justification defense at trial. She contends that “[t]here was an abundance of evidence

that would have supported [] Crider’s self-defense theory” at trial, which counsel

failed to introduce, including: (1) a report from a doctor that Crider’s actions could

have been the result of sustained domestic violence or battered person’s syndrome;

(2) jail records showing that Crider’s hand was bruised on the night she was arrested;

(3) testimony from Crider’s family members that they spoke on the phone with her

shortly before the incident, and she did not seem “angry, noticeably drunk, or sad[,]”;

and (4) reputation evidence from another family member that Crider was a peaceful

person. She argues that she established prejudice, as this evidence could have resulted

in a different outcome at trial.

      This claim clearly implicates defense counsel’s strategic choices concerning

what defense to focus on and what evidence to present. See Hendrix v. State, 298 Ga.

60, 62 (2) (a) (779 SE2d 322) (2015) (“An attorney’s decision about which defense

to present is a question of trial strategy.”) (citation omitted). “Unless the choice of

strategy is objectively unreasonable, such that no competent trial counsel would have

pursued such a course, we will not second-guess counsel’s decisions in this regard.”

Id. (citation omitted).

                                          11
      Here, counsel’s choice of trial strategy was reasonable given the circumstances.

At the motion for new trial hearing, trial counsel explained that she intended to put

forward both a self-defense theory and an accidental shooting theory at trial,

depending on what the evidence showed and whether Crider chose to testify. Indeed,

counsel presented both theories in her opening statement, and cross-examined Kerlin

about his being angry with Crider, drawing his own gun during the argument,

approaching her while she had the gun drawn, and ultimately grabbing her gun. Thus,

counsel made efforts to present both theories of defense at trial.

      However, what Crider does not seem to recognize are the negative

consequences expected had counsel pursued a different trial strategy. The trial court

had made clear that if a self-defense theory was advanced, the court would allow the

State in rebuttal to offer the other-acts evidence it otherwise had prohibited. Thus, had

defense counsel been more emphatic in her presentation of the self-defense theory,

the jury would have heard Crider’s ex-husband’s testimony that Crider had been

drunk, aggressive, and violent towards another domestic partner in the past. This

evidence also would have been made admissible on cross-examination if defense

counsel opened the door and put Crider’s character at issue through family members.

See Montgomery v. State, 350 Ga. App. 244, 246-248 (1) (828 SE2d 620) (2019)

                                           12
(noting that the State may cross-examine a defendant’s character witness about

specific instances that are relevant to the trait about which the witness testified on

direct). Counsel specifically noted her concern about this kind of evidence at the

motion for new trial hearing, showing that she was weighing her options based on the

circumstances. Thus it was not unreasonable for counsel to attempt to avoid

presenting evidence that would have convinced the trial court to admit the other-acts

evidence. See Hendrix, 298 Ga. at 61 (1) (a).

      Ultimately, if Crider realistically wanted to pursue a justification defense, she

would have testified in her own defense. The trial court had explained this to Crider

during the pre-trial 404 (b) hearing. On appeal, Crider includes her description of

events for the night in question. However, because Crider did not testify, there was

not evidence presented at the trial to support her allegation that Kerlin drew his gun

before she did or made any overt violent threats or actions that would have caused her

to fear for her life.3 Nor could there be, as there were only two witnesses to the

shooting, and Kerlin was the only one who testified. See Hunter v. State, 281 Ga. 693,

694-695 (2) (642 SE2d 668) (2007) (self-defense theory was not supported by the

      3
        See Ford v. State, 306 Ga. App. 606, 610 (20 (703 SE2d 71) (2010) (“facts
alleged in briefs but unsupported by evidence in the record cannot be considered on
appeal”) (citation and punctuation omitted).

                                         13
evidence, where defendant did not testify and there was no evidence that defendant

had to shoot victim to avoid death or great bodily injury); Brunson v. State, 293 Ga.

226, 227-228 (2) (744 SE2d 695) (2013) (self-defense theory was not supported by

the evidence, where victim moved toward defendant and reached for defendant’s gun

hand only in response to defendant’s threatening victim with a gun).

      Because Crider had not made her decision as to whether to testify when the

trial began, counsel was forced to walk a fine line – she wanted to avoid the other-act

evidence coming in to prevent a “character assault” by the State. Counsel also

attempted to lay the foundation for a justification defense throughout the State’s case,

in the event that Crider chose to testify and the defense pivoted toward the self-

defense theory. Given these circumstances, we conclude that the trial court did not

clearly err in determining that counsel was not deficient with respect to her

presentation of Crider’s defense at trial. See Boyd v. State, 275 Ga. 772, 776 (3) (573

SE2d 52) (2002) (in assessing whether counsel’s performance was reasonable, “[w]e

ask only whether some reasonable lawyer at the trial could have acted, in the

circumstances, as defense counsel acted”) (citation omitted).

      As to the specific evidence pointed to by Crider not already addressed, Roberta

Ballard, Ph. D., a licensed clinical psychologist evaluated Crider after the trial.

                                          14
Ballard testified at the motion for new trial hearing that Crider reported being the

victim of domestic violence throughout her life, including in her relationship with

Kerlin, and it was not uncommon for victims to retaliate with violence. She also

testified that Crider exhibited symptoms consistent with a battered person, who might

lash out at her abuser. Crider argues that defense counsel was deficient for failing to

get Crider evaluated before trial, and presenting this kind of evidence to the jury.

Crider relies heavily on McLaughlin v. State, 338 Ga. App. 1, 13-14 (1) (b) (789

SE2d 247) (2016), in which we held that trial counsel was ineffective for failing to

seek a continuance of the defendant’s trial to investigate and obtain expert evidence

regarding battered person syndrome.4

      Crider’s trial counsel explained at the motion for new trial hearing that she was

aware of Crider’s past of abusive relationships, but she did not believe that Crider

needed to be evaluated for a battered person syndrome defense. As explained above,

if defense counsel had attempted to put forward this kind of evidence, the trial court

likely would permit the State to introduce evidence that Crider had been the primary

aggressor in a past relationship. Thus, the jury would have heard evidence

      4
        Our holding in McLaughlin was based on counsel’s mistaken belief that it was
too late in the proceedings to seek a continuance, rather than any strategic decision
by counsel concerning the battered person defense. 338 Ga. App. at 13-14 (1) (b).

                                          15
contradicting Crider’s report of domestic abuse. Moreover, counsel’s actions were

again constrained by Crider’s choice not to testify, as battered person syndrome is

only a viable defense “to support a defendant’s claim of justification.” McLaughlin,

338 Ga. App. at 10 (1) (a).

      Additionally, unlike the defendant in McLaughlin, Crider had a reasonable

alternative defense to pursue in this case – accident. Indeed, counsel put forward

evidence that supported the theory that Crider retrieved her gun only as a precaution,

and it fired only when Kerlin approached her and attempted to move the gun. The fact

that the jury did not believe this theory does not mean that counsel’s actions were

unreasonable. See Deleon-Alvarez v. State, 324 Ga. App. 694, 712 (9) (751 SE2d

497) (2013) (“[T]he fact that the trial counsel chose to try the case in the manner in

which it was tried and made certain difficult decisions regarding the defense tactics

to be employed with which appellant and [her] present counsel now disagree, does

not require a finding that the representation below was so inadequate as to amount to

a denial of effective assistance of counsel.”) (citation and punctuation omitted). Thus,

we conclude that counsel’s actions were not so unreasonable as to amount to

ineffective assistance of counsel.



                                          16
       Finally, we do not agree that the other evidence highlighted by Crider supports

a reversal of the trial court’s ruling on her motion for new trial. Trial counsel testified

at the motion for new trial hearing that she did not recall admitting into evidence a

photograph showing that Crider’s hand was bruised on the night of the incident.

Crider argues that this photograph would have supported the theory that Kerlin

wrestled with her for the gun, justifying her shooting of him. However, defense

counsel presented other evidence of this theory, by having the firearms expert testify

that someone’s hand was on top of the gun when it fired, and by introducing the fire

department incident report, which stated that Kerlin had reported at the scene that he

was “wrestling” with Crider when the gun discharged.

       Further, Crider argues that counsel should have called her family members as

defense witnesses. At the motion for new trial hearing, Crider’s sister-in-law testified

that she spoke to Crider on the evening of the shooting, and she did not notice

anything “out of the ordinary” about Crider’s demeanor, which she described as calm

and “normal.” Crider’s brother was also on the phone call, but he was driving so he

was not “much into the conversation.” He also believed that Crider’s demeanor was

normal. When asked about why she did not call these witnesses at trial, trial counsel

repeated that she was concerned about putting Crider’s character at issue, which

                                            17
would allow the State to introduce evidence of Crider’s character for not being

peaceful. Given the circumstances described above, we conclude that this decision

was not objectively unreasonable.

      Additionally, at trial, Kerlin testified as to Crider’s emotional state with him

just before the shooting, which was more relevant to the issue of Crider’s guilt than

her emotional state when talking to family members before her argument with Kerlin.

Thus, Crider has failed to show that this testimony was reasonably likely to have

changed the outcome of her trial.

      (b) Closely related to her first claim, Crider asserts that counsel failed to

properly advise her concerning her decision not to testify at trial. Specifically, Crider

asserts that she did not understand that she would lose her ability to advance a self-

defense theory without testifying. This claim is belied by the record.

      “The decision whether or not to testify is a tactical one made by the defendant

[herself] after consultation with counsel. The choice of whether to testify is ultimately

a defendant’s.” Collins v. State, 300 Ga. App. 657, 661 (5) (686 SE2d 305) (2009)

(citation and punctuation omitted).

      Trial counsel testified at the motion for new trial hearing that she had several

“very long conversations” with Crider about testifying, but ultimately left the decision

                                           18
up to Crider. She also informed Crider about “what would happen if [Crider] did

testify versus what would happen if she didn’t testify.” This testimony is also

supported by trial counsel’s statement at trial that she “fully informed [Crider] of her

rights vis-a-vis the right to testify and what the jury instructions would be were she

not to testify.”

       Additionally, at the 404 (b) hearing, the trial court had explained that it was

unlikely to allow a justification defense to go to the jury without Crider’s testimony.

And during the trial, just before the evidence closed, the trial court informed the

defense that it had not yet seen sufficient evidence to support a self-defense jury

instruction. Trial counsel then consulted with Crider, and upon returning, informed

the court that Crider would not be testifying. Thus, the record shows that Crider was

informed about the consequences of not testifying. Accordingly, we affirm the trial

court’s ruling that counsel was not deficient in this regard, as the record supports the

trial court’s conclusion that Crider made her own decision not to testify after being

advised of the consequences. See Collins, 300 Ga. App. at 661-662 (5) (defendant’s

claim that he was not adequately advised by counsel about his right to testify was

belied by counsel’s testimony at the motion for new trial hearing and by the trial

court’s discussion with defendant at trial); Felder v. State, 286 Ga. App. 271, 278

                                          19
(648 SE2d 753) (2007) (counsel’s advice that defendant should not testify because

he would be vulnerable on cross-examination if he did was reasonable strategic

decision).

      Relevant to this enumeration of error, Crider also claims that the trial court

improperly credited trial counsel’s testimony from the motion for new trial hearing.

Crider refers to a motion filed after the hearing in which she sought to re-open the

evidence. Crider alleged that she had evidence that contradicted some of trial

counsel’s testimony from the motion for new trial hearing. In its order denying

Crider’s motion to re-open the evidence, the trial court noted that it had forwarded the

motion to trial counsel because trial counsel was not included on Crider’s certificate

of service. The trial court inquired whether trial counsel wished for the evidence to

be re-opened, and she did not.

      Crider argues that, based on this ex parte communication between the trial

court and trial counsel, we should not give any deference to the trial court’s

credibility determinations. However, as explained above, trial counsel’s testimony at

the motion for new trial hearing regarding her discussions with Crider about her

decision whether to testify are supported by the record, and thus we conclude that the

trial court’s decision to credit counsel’s testimony in this regard was not clearly

                                          20
erroneous. See Perdue v. State, 298 Ga. 841, 845 (3) (785 SE2d 291) (2016) (an

appellate court is to “accept the trial court’s factual findings and determinations

regarding credibility unless they are clearly erroneous”) (citation omitted). We find

no reversible error on this issue.

      (c) Crider next asserts that counsel was ineffective for failing to investigate the

State’s claim that she had been the primary aggressor in her previous marriage and

rebut such claim with court documents. Specifically, she asserts that the State’s threat

to introduce Beasley’s testimony about their prior domestic violence incidents was

hollow, as it could have been rebutted with evidence that would have showed that she

was not the primary aggressor in their marriage. Thus, Crider contends that such

evidence would have diminished the harm of Beasley’s testifying, and Crider could

have testified to her self-defense theory without concern that Beasley’s testimony

would greatly damage her defense.

      However, although Crider argues that defense counsel could have uncovered

this evidence, including a temporary protection order (“TPO”) awarded to Crider

against Beasley, defense counsel testified at the motion for new trial hearing that

Crider gave her the file from her divorce and “[t]here was nothing in the file . . . that

would help” the defense. When asked if she was aware of Crider’s TPO against

                                           21
Beasley, defense counsel could not recall, and stated that the TPO and other

protective order documents were not in the information given to her by Crider. Thus,

given defense counsel’s testimony that she was unaware of the additional information

concerning Beasley and that Crider did not supply trial counsel with this information,

the trial court’s finding of no ineffective assistance was not clearly erroneous. See

Gordon v. State, 252 Ga. App. 133, 135 (2) (555 SE2d 793) (2001) (“Counsel’s

actions are usually based, quite properly, on informed strategic choices made by the

defendant and on information supplied by the defendant. In particular, what

investigation decisions are reasonable depends critically on such information.”)

(citation omitted).

      (d) Crider also claims that counsel was ineffective for failing to impeach Kerlin

on three pieces of his testimony. First, she argues that Kerlin’s testimony that “he did

not drink to the point of excess” could have been impeached with a record of his 2007

DUI conviction. However, Crider does not cite to where in the record Kerlin made

such a statement. To the contrary, although Kerlin testified that he usually drank “in

moderation[,]” he also admitted that he drank regularly during the relationship and

was drinking on the day of the incident. On cross-examination, Kerlin again admitted

to regularly drinking beer and wine. On this issue, trial counsel explained that she did

                                          22
question Kerlin about his drinking, but did not attempt to impeach him by using his

DUI conviction. Given the facts as actually testified to by Kerlin, we conclude that

counsel’s cross-examination strategy was not unreasonable. See Herdon v. State, 235

Ga. App. 258, 259 (509 SE2d 142) (1998) (noting that the extent of cross-

examination is “within the realm of trial tactics and strategy, and usually provide no

basis per se for a reversal of appellant’s conviction”) (citation and punctuation

omitted).

      Second, Crider claims that Kerlin’s testimony that Crider “did not contribute

to the household expenses” could have been impeached by producing a check from

Crider to Kerlin for hundreds of dollars. Again, Crider provides no record citation for

the testimony she is contesting. During Kerlin’s cross-examination, he testified that

Crider did not have a job, and he was “pulling the financial weight in the

relationship.” However, these statements came in response to trial counsel’s questions

about Kerlin’s dissatisfaction with Crider as a partner, which trial counsel was

attempting to use as a way to argue that Kerlin started the argument that led to the

shooting, making him the primary instigator that night. This decision was an issue of

trial strategy, which we conclude was not unreasonable given the facts in this case.



                                          23
      Finally, Crider claims that Kerlin’s testimony that Crider was angry and drunk

on the night of the incident could have been impeached with testimony from Crider’s

family members that she was not drunk or angry earlier that day. As explained in

Division 1 (a) above, we conclude that Crider has failed to show that counsel’s

actions were objectively unreasonable, or that having her family members testify

about her mindset before the shooting would have changed the outcome of the trial.

Accordingly, we find no merit to this claim of ineffective assistance.

      2. Crider next asserts that the trial court erred in refusing to instruct the jury on

self-defense. She argues that some evidence supported this jury instruction, including

Kerlin’s possession of weapons, the size disparity between Kerlin and herself, and

that he aggressively approached her that night demanding that she leave the house.

Additionally, Crider argues that, despite the trial court’s insistence that she testify to

support a self-defense jury instruction, such is not required in Georgia.

      “To authorize a requested jury instruction, there need only be slight evidence

supporting the theory of the charge. Whether the evidence presented is sufficient to

authorize the giving of a charge is a question of law.” Garner v. State, 303 Ga. 788,

790 (2) (815 SE2d 36) (2018) (citation and punctuation omitted). “[A] person is

justified in using force which is intended or likely to cause death or great bodily harm

                                           24
only if he or she reasonably believes that such force is necessary to prevent death or

great bodily injury to himself or herself or a third person or to prevent the commission

of a forcible felony.” OCGA § 16-3-21 (a).

      In this case, Crider “has pointed to no evidence to support a reasonable belief

that shooting the victim was necessary to defend [her]self . . . from any imminent use

of unlawful force.” Garner, 303 Ga. at 790 (2); see also Hunter, 281 Ga. at 694 (2)

(“To establish justification, a defendant must show the circumstances were such as

to excite the fears of a reasonable person that [her] safety was in danger.”) (citation

and punctuation omitted); Bruson v. State, 293 Ga. App. 226, 227-228 (2) (744 SE2d

695) (2013) (although a defendant is not required to testify in support of a

justification defense, trial court must look at evidence admitted at trial to determine

whether justification instruction is warranted). Although she and Kerlin were engaged

in an argument before the shooting, nothing in the record suggests that Crider was in

danger of imminent violence when she retrieved her gun and pointed it at the victim.

Nor was there evidence that she was in danger of imminent violence when she fired

the gun. Although Kerlin retrieved his unloaded firearm to defend himself from

Crider’s initial assault, the record supports that his response to her was not aggressive

and that he did not point his weapon at her.

                                           25
      To the contrary, there was evidence presented that Crider was the initial

aggressor on the night of the shooting, as Kerlin testified that she retrieved her gun

when he stepped out of the bedroom, and she pointed it at him when he reentered the

room. Accordingly, where the evidence shows that the defendant is the aggressor, no

self-defense instruction is required. Garner, 303 Ga. at 790-791 (2). See also OCGA

§ 16-3-21 (b) (3) (a person is not justified in using force if she “[w]as the aggressor

. . . unless [s]he withdraws from the encounter and effectively communicates to such

other person [her] intent to do so”). Thus, the trial court’s decision not to give a

justification instruction was not reversible error.

      3. Crider also asserts that the trial court erred in refusing to merge Count 1, the

aggravated assault conviction, with Count 2, the aggravated battery conviction, as

there was no deliberate interval between the two criminal acts. We disagree.

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

Regent v. State, 299 Ga. 172, 174 (787 SE2d 217) (2016) (citation omitted). To avoid

merger, “a deliberate interval must exist between the completion of one criminal act

and the start of a separate criminal act.” Id. (citation omitted).

      Count 1 of Crider’s indictment charged her with one count of aggravated

assault, based on her pointing the firearm at Kerlin. Counts 2, 3, and 4 charged her

                                           26
with aggravated battery based on harm caused to Kerlin’s stomach, liver, and colon,

respectively, from the gunshot fired by Crider. As explained above, the trial court

ruled that the three aggravated battery convictions would merge into one conviction,

but that the aggravated assault conviction would not merge with the combined

aggravated battery conviction.

      In Regent, we explained that aggravated assault and aggravated battery can

merge because, although the two offenses are established by proof of different facts,

an aggravated assault count can be considered to be included in an aggravated battery

count, when they are based on a “single criminal act[.]” 299 Ga. at 175-176; see also

OCGA § 16-1-6 (2) (providing that one crime is included in another, if that crime

charged differs from the other “only in the respect that a less serious injury or risk of

injury to the same person . . . suffices to establish its commission). However, the

crimes charged in Regent were based on one continuous criminal act, wherein the

defendant “straddled his girlfriend, slashed her throat and, almost immediately

thereafter . . . cut her again.” 299 Ga. at 174, 176.

      The facts in Regent are distinguishable from the ones present here. At trial,

Kerlin testified that Crider pointed the gun at him for an extended period of time,

following him as he moved around the bedroom. They had a conversation, and Crider

                                           27
continued to follow him, before eventually aiming the gun at his stomach and firing

the weapon. These facts show that the aggravated assault was completed before the

battery took place. See OCGA § 16-5-21 (a) (2) (defining assault with a deadly

weapon); OCGA § 16-5-21 (k) (2015) (defining family violence aggravated assault).

Thus, there was a deliberate interval between Crider’s aggravated assault and her

aggravated battery. Compare Lowe v. State, 267 Ga. 410, 412 (1) (b) (478 SE2d 762)

(1996) (malice murder count did not merge with aggravated assault count because the

aggravated assault was completed, and there was an ensuing interval where defendant

walked around the car before aiming and firing fatal shot at victim), with Ingram v.

State, 279 Ga. 132, 133 (2) (610 SE2d 21) (2005) (where no deliberate interval exists

between assault and another criminal acts, assault conviction must merge with other

conviction).

      4. Finally, Crider filed a supplemental brief citing the Supreme Court’s recent

decision in State v. Lane, __ Ga. __ (838 SE2d 808) (2020, which held that reviewing

court should consider collectively the prejudicial effect of trial court errors and

deficient performance by counsel – at least where those errors involve evidentiary

issues). Specifically, Crider asks us to consider the cumulative effect of counsel’s

errors. However, nothing in Lane has changed our analysis where we have found no

                                         28
examples of ineffective assistance of counsel. See __ Ga. __ (1), (4) (838 SE2d at

812-813, 817-818) (explaining that we will consider cumulative effect of counsel’s

errors when counsel was deficient in two distinct respects and the trial court

committed at least one evidentiary error). Accordingly, where Crider has failed to

show error, she has likewise failed to show cumulative error. Koonce v. State, 305 Ga.

671, 678 (2) (f) n.3 (827 SE2d 633) (2019).Thus, we conclude that the trial court did

not err in denying Crider’s motion for new trial.

      Judgment affirmed. Barnes, P. J., and Pipkin, J., concur.




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