                              THIRD DIVISION
                               BARNES, P. J.,
                           BOGGS and BRANCH, 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/


                                                                  February 27, 2015




In the Court of Appeals of Georgia
 A14A2133. HUGHLEY v. THE STATE.                                             BO-079C

      BOGGS, Judge.

      Kleo Kelronte Hughley was convicted of voluntary manslaughter as a lesser

included offense of malice murder, aggravated assault with a deadly weapon,

possession of a firearm during the commission of a crime, and possession of a

weapon during the commission of a crime.1 Hughley’s amended motion for new trial

was denied, and he appeals. He contends the evidence was insufficient to disprove his

defense of justification, that he was wrongly convicted for possession of a firearm

during commission of the crime of voluntary manslaughter, that the trial court erred


      1
      The jury found Hughley not guilty of felony murder and one count of
aggravated assault with intent to murder. The trial court merged the two possession
charges and merged the aggravated assault conviction into the voluntary
manslaughter conviction.
in giving a jury instruction, and that he received ineffective assistance of counsel.

Finding no error, we affirm.

      Construed to support the jury’s verdict, the evidence shows that Hughley and

three companions were riding around in a car, smoking marijuana and in the case of

one passenger “doing ecstacy.” When Hughley, who was driving, stopped at a gas

station to buy gas and cigarillos, the victim approached Hughley and asked for

marijuana. When Hughley refused, believing that the victim was trying to rob him,

the victim left and drove to a nearby apartment complex, where he told an

acquaintance that he had had words at the gas station with someone who thought he

was trying to rob him.

      Some time later, Hughley and his companions entered the same apartment

complex and parked. Hughley left the vehicle and returned; shortly afterwards, the

victim approached the car, “smiling” and “looking like he wanted something.” One

of Hughley’s companions testified that she did not believe the victim was trying to

rob them, but that he appeared to be “on something, like he was too happy;” that is,

under the influence of narcotics. The victim tried to open the passenger door but

could not because it was missing its exterior handle. He then began knocking on the



                                         2
window and exclaimed, “Let me holler at you. Come here.” When everyone told him

to “get away from the car” he walked towards the rear of the car.

      Hughley then got out of the car and pointed a gun at the victim. The victim

began to back away to the rear of the car, and Hughley “just shot him.” Hughley

returned to the car and exclaimed that it was an attempted robbery. Hughley testified

at trial that the victim pulled a gun on him, and that he saw another individual with

whom he had had a previous “altercation” nearby, pulling a bandana over his face.

But this individual testified and said that he was some distance away speaking with

a friend when he heard the gunshot. Two witnesses testified that they did not see a

gun on the victim, the victim’s girlfriend testified that he did not have a gun

immediately before the incident, and the police found no firearm on or near the

victim.

      1. Hughley asserts that because the State failed to disprove his defense of

justification or self-defense, the evidence was insufficient to support his conviction.

      When an appellate court reviews the sufficiency of the evidence, the
      relevant question is whether, after viewing the evidence in the light most
      favorable to the prosecution, any rational trier of fact could have found
      the essential elements of the crime beyond a reasonable doubt. This
      familiar standard gives full play to the responsibility of the trier of fact
      fairly to resolve conflicts in the testimony, to weigh the evidence, and

                                           3
      to draw reasonable inferences from basic facts to ultimate facts. Once a
      defendant has been found guilty of the crime charged, the factfinder’s
      role as weigher of the evidence is preserved through a legal conclusion
      that upon judicial review all of the evidence is to be considered in the
      light most favorable to the prosecution.


      With respect to the justification defense under Georgia law, a person is
      justified in using force which is intended or likely to cause death or
      great bodily harm 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.
      Whether the evidence shows that a person had a reasonable belief that
      deadly force was necessary in self-defense is a question for the jury. The
      jury’s resolution of this question will not be reversed on appeal when the
      defendant’s challenge merely points to conflicts in the evidence and
      questions witness credibility, matters which are to be determined
      exclusively by the jury.


(Citations, punctuation, and footnotes omitted.) Robinson v. State, 326 Ga. App. 59

(1) (755 SE2d 865) (2014). Here, the State presented evidence of an earlier, hostile

encounter between Hughley and the victim, which “authorized the jury to conclude

that [Hughley] shot the victim as a result of sudden passion or anger, rather than out

of necessity to protect himself. [Cits.]” Thomas v. State, 296 Ga. App. 231, 234 (1)

(674 SE2d 96) (2009). “The evidence showing that the victim was unarmed at the


                                          4
time of the incident authorized the jury to conclude beyond a reasonable doubt that

[Hughley] was not justified in using deadly force. [Cits.]” Id. at 233 (1); see also

Robinson, supra, 326 Ga. App. at 61 (1). Additionally, the victim was apparently

intoxicated, behaving in a way that one witness described as “too happy” and

“smiling.”2 And evidence was presented that rather than simply driving away,

Hughley got out of the driver’s seat and confronted the victim, who then backed away

to the rear of the car before Hughley shot him. This evidence authorized the jury to

conclude that Hughley shot the victim as a result of sudden passion or anger rather

than self-defense. See Windham v. State, 278 Ga. App. 663, 666 (629 SE2d 837)

(2006) (conviction of voluntary manslaughter authorized on evidence that appellant

pursued victim and that victim was unarmed, although appellant testified that victim

“pulled a gun”).

      2. Hughley complains that the trial court erred in its charge on justification,

because it failed to instruct the jury that the defense applied to all counts and not

solely to the homicide charges. Because he made no objection at the time of the


      2
        We have found it “doubtful” that the “confused babbling of a man obviously
under the influence of intoxicants . . . would arouse the fears of a reasonable man,”
at least when communicated via tape recording. McDonald v. State, 182 Ga. App.
509, 511 (1) (356 SE2d 264) (1987)

                                         5
charge, we review this enumeration of error under the “plain error” standard of

review.3 Harris v. State, 324 Ga. App. 411, 416 (5) (750 SE2d 721) (2013). Hughley

has the heavy burden of demonstrating the following four elements:

      First, there must be an error or defect — some sort of deviation from a
      legal rule — that has not been intentionally relinquished or abandoned,
      i.e., affirmatively waived, by the appellant. Second, the legal error must
      be clear or obvious, rather than subject to reasonable dispute. Third, the
      error must have affected the appellant’s substantial rights, which in the
      ordinary case means he must demonstrate that it affected the outcome of
      the trial court proceedings. Fourth and finally, if the above three prongs
      are satisfied, the appellate court has the discretion to remedy the error
      — discretion which ought to be exercised only if the error seriously
      affects the fairness, integrity or public reputation of judicial
      proceedings.


(Citation, punctuation, and footnote omitted.) Id.

      As the trial court observed, the instruction on justification “was not given in

connection with any specific offense.” The trial court explicitly and repeatedly

instructed the jury that the defense of justification was applicable when a defendant

“reasonably believes that such force is necessary to prevent death or great bodily


      3
       Because Hughley’s trial took place in 2011, we review for plain error under
the old Evidence Code. See Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d 377)
(2012).

                                          6
injury to himself or a third person, or to prevent the commission of a forcible felony.”

The trial court instructed the jury that murder and aggravated assault are felonies,

adding that a felony is “any crime against or involving the person of another.” A

reasonable juror would understand the general charge on justification as applying to

all the offenses charged. See Ross v. State, 278 Ga. 429, 431 (3) (603 SE2d 268)

(2004). Hughley has failed to show a “clear or obvious” error in the trial court’s

charge or that the charge affected the outcome of the proceedings. He therefore has

failed to demonstrate plain error.

      3. Hughley also contends that his conviction for possession of a firearm during

the commission of a crime in Count V should be vacated, as the indictment references

the crime of murder and he was convicted of the lesser offense of voluntary

manslaughter. In Prather v. State, 259 Ga. App. 441, 442-443 (1) (576 SE2d 904)

(2003), as here, the indictment charged the appellant with murder and with possession

of a firearm during the commission of murder, but he was convicted of the lesser

included offense of voluntary manslaughter. Id. at 442 (1). We observed that

      [t]he trial court charged the jury that the elements of possessing a
      firearm during the commission of a crime required proof of a felony, and
      then noted that murder is a crime defined as a felony. Voluntary
      manslaughter, although discussed earlier in the charge, was not

                                           7
      mentioned in the context of the possession charge and was never defined
      for the jury as a felony.


Id. at 443. Under these circumstances, we held that the jury was authorized to convict

of possession of a firearm only during the commission of murder, and reversed the

conviction on this count. Id.

      But here, as the State points out, the trial court twice gave an additional

instruction in connection with the two counts of possession of a firearm or weapon

during the commission of a crime: “A person commits the offense of possession of

a firearm during the commission of a crime when the person has on or within arm’s

reach of his person a firearm during the commission of or any attempt to commmit

a felony, which is any crime against or involving the person of another.” It then went

on to state that murder and aggravated assault respectively were felonies “under the

laws of this state” and “defined as previously stated.” See Division 2, supra. While

explicitly identifying every lesser included offense charged as an element of the

possession charge might be the better practice, this instruction did implicitly identify

voluntary manslaughter as both an offense against the person and a felony, and

instructed the jury that possession could be based upon “any attempt to commit a

felony, which is any crime against or involving the person of another.” (Emphasis

                                           8
supplied.) The jury therefore was informed that the possession charge here, unlike

that in Prather, could be based upon “any crime against or involving the person of

another” or “any attempt to commit a felony,” thus including voluntary manslaughter.

Considering the charge as a whole, we cannot conclude that the omission of an

explicit reference to voluntary manslaughter in the charge on possession was error.

      In Prather, we expressly did not consider “whether a defendant charged with

possession of a firearm during the commission of a specific felony could be found

guilty of possession of a firearm when he was convicted of a lesser included felony.”

Id. at 443 (1); see also Crowder v. State, 241 Ga. App. 818, 820-821 (3) (b) (527

SE2d 901) (2000). But Hughley does not argue this point in his brief on appeal,

relying instead upon the alleged inadequacy of the jury charge, and we therefore do

not address it. Court of Appeals Rule 25 (c) (2).4

      4. Hughley complains of ineffective assistance of counsel in three respects. In

ruling on a claim of ineffective assistance,


      4
        In Prather, we noted the Supreme Court’s holding “[i]n the analogous
situation of a felony murder” that “a felony which is an included offense of another
felony which is charged in an indictment may constitute the underlying felony upon
which conviction of felony murder may be grounded, given adequate proof and
correct jury instructions.” (Citation, punctuation, and emphasis omitted.) 259 Ga.
App. at 443 (1).

                                          9
      [u]nder the two-part test established in Strickland v.Washington, 466 U.
      S. 668 (104 SC 2052, 80 LE2d 674) (1984), [Hughley] 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. If an appellant fails to meet his burden
      of proving either prong of the Strickland test, the reviewing court does
      not have to examine the other prong.


(Citations and punctuation omitted.) Harrison v. State, 313 Ga. App. 861, 865 (3)

(722 SE2d 774) (2012).

      As a general rule, reasonable trial tactics and strategies do not amount
      to ineffective assistance of counsel. The decisions on which witnesses
      to call and all other strategies and tactical decisions are the exclusive
      province of the lawyer after consultation with his or her client. Whether
      an attorney’s trial tactics were reasonable is a question of law, not fact.
      When assessing the reasonableness of counsel’s actions, a court must
      evaluate counsel’s performance from his or her perspective at the time
      of trial. This Court reviews a trial court’s ruling on an ineffective
      assistance claim on appeal by accepting the trial court’s factual findings
      and credibility determinations unless clearly erroneous, but we
      independently apply the legal principles to the facts.


(Citations and punctuation omitted.) McNair v. State, ___ Ga. App. ___ (3) (2014 Ga.

App. LEXIS 845). Moreover, as our Supreme Court has observed,



                                          10
      we are not limited in our assessment of the objective reasonableness of
      lawyer performance to the subjective reasons offered by trial counsel for
      his conduct. If a reasonable lawyer might have done what the actual
      lawyer did – whether for the same reasons given by the actual lawyer or
      different reasons entirely – the actual lawyer cannot be said to have
      performed in an objectively unreasonable way. [Cit.]


Shaw v. State, 292 Ga 871, 875 n.7 (3) (a) (742 SE2d 707) (2013).

      (a) Hughley first asserts that his counsel was ineffective in failing to object to

what amounted to testimony of the victim’s good character from his girlfriend, that

he was “laid back,” “stayed to himself” and was “lovable” and “goofy” and that he

“don’t play with nothing like that.”5 But at the hearing on Hughley’s motion for new

trial, his trial counsel explained that he based his argument that the victim was armed

upon the girlfriend’s testimony that she saw a black male “messing with [the victim’s]

body” before he got into Hughley’s car and they “took off,” and that when she

approached the victim she saw “his pants pockets inside out.” Trial counsel testified

that he had “other information” that this individual had taken a firearm off the

victim’s body. This testimony was the basis of his argument to the jury that a witness


      5
       Trial counsel testified at the hearing on the motion for new trial that he
interpreted the “don’t play” remark not to mean that the victim “didn’t play with
guns” but that “he would have been the first one in the house” if he heard gunshots.

                                          11
lied at trial about never leaving Hughley’s vehicle because he took the victim’s

firearm before anyone else came on the scene.

      Trial counsel further testified that, because he relied heavily upon this witness’

credibility to support his theory of the case, he argued to the jury that she was a

credible witness, speaking from emotion, who had no reason to lie. Additionally, he

“gave her a lot of leeway in the things that she testified to” because she was “crying,

was very distraught and upset.” He believed on balance, considering the way that the

testimony was delivered and the jury’s acquittal of Hughley on the murder charge,

that this witness’ statements did not hurt his case. Given trial counsel’s stated reasons

for not attacking this witness – that he did not want to attack her credibility because

he needed the jury to believe her testimony to bolster his theory that the victim was

armed, and because he did not wish to attack the witness while she was upset – the

trial court was authorized to find that counsel applied a valid trial strategy and was

not ineffective in his tactical decision not to object. See Kilpatrick v. State, 276 Ga.

151, 152-153 (2) (575 SE2d 478) (2003) (trial counsel not ineffective in choosing not




                                           12
to object to testimony from victim’s mother to avoid appearing insensitive before

jury).6

          (b) (i) Next, Hughley contends that his counsel was ineffective in failing to

impeach two of the State’s witnesses – the two female occupants of Hughley’s

vehicle – with a prior inconsistent statement conflicting with their trial testimony that

they did not see the victim with a firearm. The two witnesses were videotaped while

they were alone together in a police interview room. Hughley asserts that the

witnesses “agreed that [the victim] had a gun, and concluded that it must have been

removed from his body before the police arrived,” and that trial counsel should have

cross-examined these witnesses on this statement. But this is by no means as clear as

Hughley contends.

          The audio of the recording is noisy and only intermittently audible. There is no

discernible context, other than that the witnesses, unaware that they are being

recorded, are discussing in hushed voices “get[ting] your s--t straight” and “mak[ing]

it beneficial to him,” presumably Hughley. Shortly before the exchange pointed out

          6
        Hughley failed to question trial counsel regarding his contention that counsel
was ineffective in not asking for a continuing objection to the testimony. “Absent
testimony to the contrary, counsel’s actions are presumed strategic. [Cit.]” Hendrix
v. State, 328 Ga. App. 819, 821-822 (2) (b) (762 SE2d 820) (2014); see also Shaw,
supra, 292 Ga. at 876 (3) (b).

                                             13
by Hughley, there are audible remarks referring to what an unnamed individual “did -

and I did too - even though we were both unarmed - I didn’t see him,” and a reference

to someone being “beat up” and “somebody did it after we broke.” Both witnesses

then exclaim, “I don’t know” and throw their hands out in a gesture of uncertainty or

confusion. Immediately afterwards, talking over each other, they say, “They took it

– they took it from him.”

      Even assuming that this cryptic reference to “they”, “it”, and “him” refers to

persons unknown taking a firearm from the victim, it appears to be nothing more than

speculation in the midst of the witnesses’ attempt “to get [their stories] straight” for

the police, particularly in light of the other statements made at the time. Moreover,

as counsel pointed out at the hearing, Hughley’s contention that his own testimony

was the only evidence the victim had a gun was incorrect. Trial counsel already had

adduced testimony from the victim’s girlfriend that she saw an individual leaning

over the victim and “messing with him,” and that she found his pockets turned out.

Finally, trial counsel testified at the hearing on the motion for new trial that he

believed “that we were able to tie all of the issues up together” and that “the jury did




                                          14
believe our theory of the case in general.”7 He could not remember specific quotes or

how he used them, but he testified that he argued from the police videotapes during

closing, which was not recorded except for counsels’ objections.

      “An ambiguous or silent record is not sufficient to disprove the strong and

continuing presumption of competent performance. Therefore, where the record is

incomplete or unclear about counsel’s actions, we will presume that he did what he

should have done.” (Citations and punctuation omitted.) Shaw, supra, 292 Ga. at 874

n.5 (3) (a). Under these circumstances, Hughley cannot demonstrate either that

counsel’s performance was deficient in this regard or that, if so, it affected the

outcome of the trial.

      (ii) Hughley also contends in this enumeration of error that trial counsel was

ineffective in failing to request a charge on prior inconsistent statements, but the jury

was charged on prior inconsistent statements. This contention is therefore without

merit. Jarrett v. State, 299 Ga. App. 525, 531 (7) (a) (683 SE2d 116) (2009).

      7
        Hughley’s conviction on a lesser included offense on the count of malice
murder and acquittal on counts of felony murder and aggravated assault with intent
to murder “strongly supports the conclusion that the assistance actually rendered by
defendant’s trial counsel fell within that broad range of reasonably effective
assistance which members of the bar in good standing are presumed to render.”
(Citations omitted.) Green v. State, 218 Ga. App. 648, 651 (3) (a) (463 SE2d 133)
(1995).

                                           15
      (c) Finally, Hughley contends that his counsel was ineffective in presenting a

defense of voluntary manslaughter and then failing to seek an appropriate charge on

justification as to the lesser included offense. Hughley having failed to show plain

error in the charge on justification, see Division 2, supra, he cannot show prejudice

sufficient to satisfy the second prong of the Strickland standard in the circumstances

of this case. Shaw v. State, supra, 292 Ga. at 877 (3) (c) n.11.

      Reviewing the record as a whole in light of the applicable standard, the

evidence is sufficient to support the trial court’s determination that Hughley’s trial

counsel did not provide ineffective assistance.

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




                                          16
