                             THIRD DIVISION
                               DILLARD, J.
                        MCFADDEN, AND MERCIER, 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


                                                                      March 3, 2016




In the Court of Appeals of Georgia
 A15A2137. JACKSON v. THE STATE.

      MCFADDEN, Judge.

      After a jury trial, Arreon Lashun Jackson was convicted of four counts of

armed robbery, one count of burglary, and one count of possession of a firearm during

the commission of a crime. He argues on appeal that the evidence was insufficient to

support his conviction on one of the armed robbery counts, that the trial court erred

in dismissing a juror during trial, and that he received ineffective assistance of trial

counsel. We find, however, that the evidence was sufficient, that the trial court did

not abuse his discretion in dismissing the juror, and that Jackson has not shown that

his trial counsel performed deficiently. Accordingly, we affirm.

      1. Sufficiency of the evidence.
      When a defendant challenges the sufficiency of the evidence supporting his

criminal conviction, “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.” Jackson v. Virginia,

443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted;

emphasis in original). “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.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001)

(citations and punctuation omitted).

      Viewed in this light, the evidence showed that early in the morning of March

6, 2012, Jackson and others entered the residence of several farm workers. The

intruders fired nine bullets through a closed door leading from the kitchen into the

workers’ bedroom, striking and injuring one man. Then Jackson and at least one other

man entered the bedroom, where one of them hit a worker in the face with a gun,

briefly knocking him unconscious. The intruders rifled among the workers’

belongings, taking money and other items, then fled in a vehicle.

      Jackson argues that the evidence was insufficient to support his conviction on

one of the counts of armed robbery, which alleged that he had committed armed

                                           2
robbery against farm worker Antolin Sanchez by using a firearm to take Sanchez’s

cell phone from him. He argues that the evidence did not authorize a finding that the

cell phone was taken from Sanchez’s immediate presence because Sanchez was not

in the room at the time of the taking. We disagree.

      “A person commits the offense of armed robbery when, with intent to commit

theft, he or she takes property of another from the person or the immediate presence

of another by use of an offensive weapon[.]” OCGA § 16-8-41 (a). “(O)ne’s

‘immediate presence’ in this context stretches fairly far[.]” Patterson v. State, 312 Ga.

App. 793, 797 (3) (720 SE2d 278) (2011) (citation omitted). “An armed robbery may

be committed even out of the physical presence of the victim if what was taken was

under the victim’s control or responsibility and if the victim was not too far distant.”

Matthews v. State, 268 Ga. 798, 804 (7) (a) (493 SE2d 136) (1997) (citation and

punctuation omitted).

      In this case, the evidence viewed in the light most favorable to the verdict

showed that the cell phone was under Sanchez’s control and responsibility; it

belonged to him and was taken off of his bed. The evidence also showed that,

although Sanchez was not in the room when the cell phone was taken, he was nearby

and “not too distant”: the evidence showed that Sanchez had been in the bedroom and

                                           3
was struck by splintered wood when the shots were fired; he then escaped the room

through another door and ran to an adjacent building to call for help; as he was

calling for help, and within five minutes of the shooting, the intruders fled in a

vehicle; and when Sanchez returned to the bedroom shortly thereafter his cell phone

was gone. We have held under similar circumstances – in which a victim faced with

an offensive weapon fled the scene, leaving behind property that the defendant then

took – that the evidence was sufficient to support an armed robbery conviction. See

Lester v. State, 267 Ga. App. 795, 796-798 (1) (600 SE2d 787) (2004) (after

defendant beat store clerk with bat, clerk fled store but remained in vicinity;

defendant then took items from store); Baldivia v. State, 267 Ga. App. 266, 267-269

(1) (599 SE2d 188) (2004) (defendant shot at victims who fled scene for ten to fifteen

minutes; defendant then took their car); Coburn v. State, 252 Ga. App. 315, 315-316

(1) (555 SE2d 750) (2001) (defendant pulled gun on victim, who dropped her

backpack and fled; defendant then took backpack); Kemper v. State, 251 Ga. App.

665, 665-666 (1) (555 SE2d 40) (2001) (defendant pointed gun at victim and told her

to get into trunk of vehicle; instead victim placed money in trunk and fled, and

defendant then drove away with money); Wilson v. State, 207 Ga. App. 528, 528-529

(1) (428 SE2d 433) (1993) (restaurant cashier left her register and went to her

                                          4
manager’s office after defendant displayed gun; when she returned, cash from register

was gone); Heard v. State, 204 Ga. App. 757, 757-758 (1) (420 SE2d 639) (1992)

(after defendant shot into victims’ car, striking one victim and forcing them from

road, victims left car and fled into woods; defendant then stole car); Morgan v. State,

195 Ga. App. 732, 732-734 (1) (394 SE2d 639) (1990) (store clerk fled store after

defendants threatened him with a knife; defendants then stole items from store);

Maddox v. State, 174 Ga. App. 728, 728-730 (1) (330 SE2d 911) (1985) (from

another room, store owner saw defendants enter store, one with a shotgun; after

owner fled to a nearby house to call the police, defendants stole items from store). See

also Matthews, supra, 268 Ga. at 804 (7) (a) (holding, in connection with a jury

charge ruling, that “[e]ven if the robbery victim succeeded in escaping from the store

before the money was taken from the cash register, the ‘immediate presence’

requirement of OCGA § 16-8-41 (a) was satisfied.”).

      2. Dismissal of juror.

      During trial, the trial court dismissed a juror over Jackson’s objection and

replaced the juror with an alternate. The trial court did so after learning that the juror

failed to reveal in response to voir dire questioning that he knew Jackson’s father and

after receiving evidence that, during a break in the trial proceedings, the juror had

                                            5
been seen speaking with Jackson’s father in a parking lot. Jackson argues that the trial

court abused his discretion in dismissing the juror. We find no abuse of discretion.

      Under OCGA § 15-12-172, “[i]f at any time . . . a juror dies, becomes ill, upon

good cause shown to the court is found to be unable to perform his duty, or is

discharged for other legal cause, the first alternate juror shall take the place of the

first juror becoming incapacitated.” (Emphasis supplied.) “It is well established that

OCGA § 15-12-172 provides a trial court with discretion to discharge a juror and

replace him or her with an alternate at any time, and we will not reverse as long as the

court’s exercise of discretion has a sound legal basis.” Worthy v. State, 223 Ga. App.

612, 613 (1) (478 SE2d 421) (1996) (citation and punctuation omitted).

      A sound basis may be one which serves the legally relevant purpose of
      preserving public respect for the integrity of the judicial process. Where
      the basis for the juror’s incapacity is not certain or obvious, some
      hearing or inquiry into the situation is appropriate to the proper exercise
      of judicial discretion. Dismissal of a juror without any factual support
      for or for a legally irrelevant reason is prejudicial.


State v. Arnold, 280 Ga. 487, 489 (629 SE2d 807) (2006) (citations and punctuation

omitted).




                                           6
      The record shows that after the state brought the issue regarding the juror to the

trial court’s attention, the trial court inquired into the situation, receiving testimony

from the juror and two witnesses to the juror’s conversation with Jackson’s father,

and obtaining representations from the prosecutor about the juror’s voir dire

responses. This provided sufficient grounds for the trial court, in his discretion, to

dismiss the juror for legal cause. See Smith v. State, __ Ga. App. __, __ (1) (__ SE2d

__) (Case No. A15A1664, decided Jan. 25, 2016) (trial court did not abuse discretion

in dismissing juror who appeared as a friend on defendant’s Facebook page but who

had not responded affirmatively when asked in voir dire if she knew defendant);

Wooten v. State, 250 Ga. App. 686, 687 (3) (552 SE2d 878) (2001) (trial court did not

abuse discretion in dismissing juror who failed to reveal in voir dire that he knew

defendant and who indicated to other jurors that he was familiar with defendant and

would not consider victim’s testimony); Gurr v. State, 238 Ga. App. 1, 4 (4) (516

SE2d 553) (1999) (trial court did not abuse discretion in dismissing juror who had

been contacted by persons interested in case, “for such [dismissal] preserves the

integrity of the judicial process”) (citations omitted); Worthy, 223 Ga. App. at 614 (1)

(trial court did not abuse discretion in dismissing juror who had been seen talking

with defendant during break in trial); Darden v. State, 212 Ga. App. 345, 347 (4) (441

                                           7
SE2d 816) (1994) (trial court did not abuse discretion in dismissing juror who knew

defendants and had been seen talking with them during trial; juror had attempted to

inform state that she knew defendants but prosecutor did not see juror’s raised hand

in response to voir dire question).

      We do not agree with Jackson’s assertion that “[n]o evidence was entered into

the record showing that [the juror] denied knowing Mr. Jackson’s family during voir

dire.” The prosecutor made representations to that effect to the trial court. “Attorneys

are officers of the court, and a[n attorney’s] statement to the court in his place is

prima facie true and needs no further verification unless the same is required by the

court or the opposite party.” Morris v. State, 228 Ga. 39, 49 (11) (184 SE2d 82)

(1971) (citation and punctuation omitted). At trial, the prosecutor stated to the trial

court that he “asked specifically about [Jackson’s father ], and there was no response

at all of any knowledge or friendship or anything by that juror,” and Jackson sought

no further verification. Moreover, without a transcript of the voir dire setting forth the

questions asked of the jurors and their responses thereto, we cannot say that the trial

court erred in finding that the juror at issue failed to respond affirmatively when

asked if he knew any members of Jackson’s family. See Nwakanma v. State, 296 Ga.

493, 500 (5) (768 SE2d 503) (2015) (“If counsel raise issues on appeal relating to

                                            8
voir dire, they also must transcribe the voir dire in order for there to be an appellate

review, as an appellant carries the burden of showing error by the record.”) (citation

and punctuation omitted).

      3. Ineffective assistance.

      Jackson argues that he received ineffective assistance of trial counsel because

his counsel “improperly commented on Mr. Jackson’s invocation of his right to

counsel and his right to remain silent.” But as detailed below, the record shows that

Jackson’s trial counsel did not comment on his invocation of his right to remain

silent, and Jackson has not shown that his counsel was deficient in commenting on

his invocation of his right to counsel.

      To prevail on his claim of ineffective assistance, Jackson 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. 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.



                                           9
Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012) (citations and

punctuation omitted).

      Jackson asserts that his trial counsel improperly commented on his invocation

of his rights to silence and to counsel at two points during trial. The first instance

occurred as his trial counsel cross-examined a law enforcement officer about his

investigation of the armed robberies. Trial counsel asked a series of questions

establishing that Jackson had turned himself in to the authorities and then asked:

“Now when he turned hisself [sic] in obviously you all were going to see if he was

going to talk.” The officer responded: “We took him into an interview, advised him

of all of his rights, which he requested for his lawyer, that he wanted an attorney.”

Jackson’s counsel then moved on to other topics but revisited the issue in closing

argument, while discussing evidence that Jackson’s father had taken him to an

attorney before Jackson turned himself in to law enforcement. His counsel argued:

      My client never attempted to run. As soon as he found out, I guess he
      did what any good dad would have done, he took him to an attorney in
      Vidalia, Georgia, a fellow named [name of previous counsel], and it
      appears that he was turned in from there. He chose to exercise his rights
      and hire an attorney. There was an attorney involved prior to my
      involvement.



                                         10
(The record does not reflect that the state asked any questions about or made any

argument referring to Jackson’s invocation of his rights.)

      Jackson characterizes these instances as improper comments on his invocation

of his right to remain silent. See generally Gordon v. State, 250 Ga. App. 80, 82 (550

SE2d 131) (2001) (“It has been held to be fundamentally unfair to simultaneously

afford a suspect a constitutional right to silence following arrest and yet allow the

implications of that silence to be used against him for either substantive or

impeachment purposes.”) (citations and punctuation omitted). The comments,

however, concerned Jackson’s invocation of his right to counsel, a right distinct from

his right to silence. See Sears v. State, 292 Ga. 64, 67 (3) (734 SE2d 345) (2012)

(distinguishing trial objection to comment upon defendant’s invocation of his right

to counsel from appellate objection to comment upon defendant’s invocation of his

right to silence). “[E]vidence of a defendant’s invocation of the right to counsel is not

automatically inadmissible as an improper comment on a defendant’s right to remain

silent,” Martin v. State, 290 Ga. 901, 902 (1) (a) (725 SE2d 313) (2012), and we do

not view the references to Jackson invoking his right to counsel in this case as

comments on his right to remain silent. See Rowe v. State, 276 Ga. 800, 805 (4) (582

SE2d 119) (2003) (rejecting defendant’s argument that portion of interview recording

                                           11
in which he invoked his right to counsel was inadmissible as an improper comment

on his right to remain silent); Cornelius v. State, 273 Ga. App. 806, 809-810 (2) (a)

(616 SE2d 148) (2005) (rejecting defendant’s argument that investigator’s testimony

that she attempted to speak with defendant at jail was an improper comment on his

right to remain silent since investigator never stated whether defendant had answered

her questions), disapproved in part on other ground at Schofield v. Holsey, 281 Ga.

809, 811-812 (II) n. 1 (642 SE2d 56) (2007). “It is a comment upon a defendant’s

silence by a witness which is impermissible under our law, not mere speculation or

conjecture by a defendant that a jury could have inferred such a comment from the

witness’ testimony.” Cornelius, 273 Ga. App. at 809 (2) (a) (citation omitted;

emphasis in original).

      Moreover, Jackson has not shown that his counsel performed deficiently in

making or soliciting comments about his invocation of his right to counsel. To meet

the deficiency requirement, Jackson “must overcome the strong presumption that

counsel’s performance fell within a wide range of reasonable professional conduct,

and that counsel’s decisions were made in the exercise of reasonable professional

judgment.” Goodman v. State, 293 Ga. 80, 86 (9) (742 SE2d 719) (2013) (citation and

punctuation omitted). At the hearing on Jackson’s motion for new trial, counsel

                                         12
testified that the purpose of his cross-examination question to the law enforcement

officer was to emphasize that Jackson had turned himself in to the authorities, and he

explained that he made the comments in closing argument to rehabilitate and enhance

the credibility of Jackson’s father, who had testified as a defense witness and

described Jackson’s movements and demeanor the night before and the morning after

the crime. On cross-examination, the state had challenged the father’s actions after

Jackson was accused of the crime, implying that the father’s actions were inconsistent

with Jackson’s claim that he was not involved in the armed robberies. As counsel

explained at the motion for new trial hearing: “[T]here were some problems with his

dad’s testimony and what his dad may have done or may not have and that sort of

thing, and so I was just saying that I guess he did what any good father would have

done. He went and hired a lawyer for his son.”

      In light of the evidence which counsel had to meet, we cannot say that
      counsel’s effort to [highlight Jackson’s act of turning himself in to
      authorities and to rehabilitate his father as a defense witness were]
      unreasonable. As a general rule, matters of reasonable trial tactics and
      strategy, whether wise or unwise, do not amount to ineffective
      assistance of counsel.


Goodman, supra, 293 Ga. at 88 (9) (e) (citation and punctuation omitted).


                                         13
Judgment affirmed. Dillard and Mercier, JJ., concur.




                                 14
