                               FOURTH DIVISION
                                 DOYLE, P. J.,
                            MILLER and DILLARD, 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 5, 2015




In the Court of Appeals of Georgia
 A14A1508. WILLIAMS v. THE STATE.

      MILLER, Judge.

      Following a jury trial, Clinton Delray Williams was convicted of aggravated

assault (OCGA § 16-5-21 (b)), possession of a firearm during a crime (OCGA § 16-

11-106 (b)), and aggravated battery (OCGA § 16-5-24(a)).1 He appeals from the

denial of his motion for new trial , contending that the trial court erred by overruling

his objection to particular testimony and that he received ineffective assistance of

counsel . For the reasons that follow, we affirm.




      1
       Williams was also charged with another count of aggravated assault (OCGA
§ 16-5-21(b)) and with criminal trespass (OCGA § 16-7-21) . The trial court merged
the two aggravated assault counts and granted Williams a directed verdict on the
criminal trespass count.
             On appeal from a criminal conviction, a defendant no longer
      enjoys the presumption of innocence, and the evidence is viewed in the
      light most favorable to the guilty verdict. . . . [W]e neither weigh the
      evidence nor assess the credibility of witnesses, but merely ascertain that
      the evidence is sufficient to prove each element of the crime beyond a
      reasonable doubt. Moreover, conflicts in the testimony of the witnesses
      are a matter of credibility for the jury to resolve. As long as there is
      some competent evidence, even though contradicted, to support each
      fact necessary to make out the [S]tate’s case, the jury’s verdict will be
      upheld.


(Punctuation and footnotes omitted.) Goss v. State, 305 Ga. App. 497, 497-498 (1)

(699 SE2d 819) (2010).

      So viewed, the evidence shows that, at about 1:00 a.m. on the day in question,

the victim walked from his apartment in Clayton County to a nearby gas station to

buy cigarettes. After making his purchase, the victim approached Williams’s car, a

red Corvette parked near the gas pumps. . The victim asked Williams for a light.

Williams did not like the way the victim was looking at his car, so he rolled down his

window and told the victim to “get the ‘F’ away from [Williams’s] car.” The victim

backed away from Williams’s car, towards the front of the store, and borrowed a

lighter from someone else. Williams drove up to the front of the store, where he and

the victim engaged in a heated argument. While the men were arguing, Williams

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walked back to his car, retrieved a gun, and started shooting at the victim. The victim

began running as soon as he heard the first gunshot, but was shot in his legs and

buttocks. He ran to the apartment complex behind the gas station, knocked on the first

door he saw, and asked the woman who answered the door to call 911.

      Clayton County Police Department officers responded to a call that there was

an armed person at the gas station and when they arrived, Williams was standing

beside a red Corvette and holding a gun. At the officers’ direction, Williams put down

his gun and the officers detained him. The officers then received a second call from

the apartment complex behind the gas station, indicating that a person had been shot.

Police officers, as well as EMTs, responded to the apartment complex. The victim

gave the officers a quick statement, reporting that he had been shot at the gas station

by a black man who was driving a red Corvette. Then, an ambulance took the victim

to the hospital, where he was treated for gunshot wounds.

      Following his arrest, Williams waived his right to remain silent and agreed to

be interviewed by police officers. During his interview, Williams admitted that he

shot the victim because he was not comfortable with the way the victim had been

looking at his car and he wanted to protect his property.



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      1. Williams contends that the trial court erred by overruling his objection to a

certain portion of the arresting officer’s testimony, regarding whether the officer had

visited the victim at the hospital. In the relevant exchange, the arresting officer

testified that, although he went to the hospital to check on the victim, he did not speak

to the victim at that time. This testimony appeared to be inconsistent with the victim’s

testimony that a police officer interviewed him at the hospital.2 The State asked the

officer if he believed the victim would be “mistaken” to the extent he reported an in-

hospital conversation with the police. Defense counsel objected to this testimony as

speculative. The court overruled the defense’s objection. The arresting officer then

testified that the victim would be mistaken on this point, and reiterated his testimony

that the only time he spoke to the victim was in the apartment complex breezeway.

      On appeal, Williams argues that the trial court erred by allowing the arresting

officer to testify that the victim was mistaken about speaking to the officer at the

hospital. Williams contends, first, that this testimony was impermissible bolstering

because the officer was sharing his belief that the victim’s misstatements were

innocent mistakes rather than calculated lies. Before the trial court, however,


      2
       Later in the trial, another officer testified that he interviewed the victim at the
hospital.

                                            4
Williams did not object to the testimony on this ground. He has therefore waived this

argument. See Arnold v. State, 301 Ga. App. 714, 716 (2) (688 SE2d 656) (2009)

(where defendant objected to officer’s testimony on the grounds that it was improper

opinion and speculation, but not on the ground of improper bolstering, the bolstering

objection was waived on appeal).

      Williams also contends that this testimony was impermissible speculation,

because the arresting officer could not have known the reason for the victim’s

misstatement. Williams’s argument is not persuasive. Pretermitting whether the trial

court erred by overruling Williams’s speculation objection, any error was harmless

in light of the overwhelming evidence against Williams, including the surveillance

video from the gas station , the victim’s testimony , and Williams’s custodial

statements admitting to the offense . See Archer v. State, 291 Ga. App. 175, 177-178

(2) (661 SE2d 230) (2008) (any error in admitting hearsay evidence was harmless in

light of overwhelming evidence of guilt).

      2. Williams also contends that his trial counsel was ineffective for failing to

request a curative instruction or mistrial after the challenged testimony. We disagree.

             To prevail on a claim of ineffective assistance of counsel, a
      defendant must show that counsel’s performance was deficient and that


                                          5
      the deficient performance so prejudiced the defendant that there is a
      reasonable likelihood that, but for counsel’s errors, the outcome of the
      trial would have been different. See Strickland v. Washington, 466 U. S.
      668, 687 (104 SC 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. In reviewing
      the trial court’s decision, we accept the trial court’s factual findings and
      credibility determinations      unless    clearly   erroneous,    but   we
      independently apply the legal principles to the facts. Furthermore, there
      is a strong presumption that the performance of counsel was within the
      wide range of reasonable professional lawyering, and we cannot reach
      a contrary conclusion unless defendant successfully rebuts the
      presumption by clear and convincing evidence. Judicial scrutiny of
      counsel’s performance must be highly deferential.


(Citations and punctuation removed). Littlejohn v. State, 320 Ga. App. 197, 205-206

(5) (739 SE2d 682) (2013).

      At the motion for new trial hearing, trial counsel testified that one of his most

important goals during the trial was to discredit the victim and the arresting officer

by highlighting any inconsistencies between their testimony. Trial counsel believed

that the officer’s testimony that the victim was “mistaken” as to whether they spoke

at the hospital was “extremely favorable” to his trial strategy, because it highlighted

an inconsistency and because it could be construed as the officer making an excuse


                                           6
for the victim’s misstatement. Trial counsel explained that he did not request a

curative instruction because he saw no basis for one , and he did not request a mistrial

because he believed that, if the case was re-tried, the State would cure any

inconsistencies between the victim’s testimony and the officers’ accounts.

Accordingly, trial counsel believed that the defense would lose any ground it had

gained during the original cross-examinations.




      Here, counsel’s decisions on how to address the arresting officer’s testimony

were matters of trial strategy and, therefore, will not support a claim of ineffective

assistance. See Littlejohn, supra, 320 Ga. App. at 207 (5) (ii) (counsel’s strategic

decisions as to which defense theories to pursue are within the exclusive province of

the attorney and do not constitute ineffective assistance). Trial counsel’s failure to

request a curative instruction or mistrial also will not support a claim of ineffective

assistance because it affirmatively appears that the court would have denied such

requests, given that it overruled counsel’s objection to the same testimony . See

Owens v. State, 271 Ga. App. 365, 370 (5) (609 SE2d 670) (2005) (“Failure to make

a meritless or futile objection or motion cannot be evidence of ineffective



                                           7
assistance.”) (citations omitted). Moreover, as counsel explained at the motion for

new trial hearing, the challenged testimony actually supported the defense’s primary

trial strategy because it highlighted an inconsistency in the State’s case. Under these

circumstances, Williams cannot show that counsel’s failure to request a curative

instruction or mistrial caused him any prejudice.

      Judgment affirmed. Doyle, P. J., and Dillard, J., concur.




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