                               FIFTH DIVISION
                                PHIPPS, P. J.,
                         DILLARD and PETERSON, 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


                                                                     August 8, 2016




In the Court of Appeals of Georgia
 A16A1105. COOK v. THE STATE.

      PHIPPS, Presiding Judge.

      A jury found Timothy Cook guilty of rape.1 The trial court denied Cook’s

motion for new trial, and he appeals. Cook argues that (i) the evidence was

insufficient to support his rape conviction, (ii) the trial court erred in instructing the

jury, and (iii) he was denied effective assistance of trial counsel. Cook also claims

that he was improperly sentenced as a recidivist. For the reasons that follow, we hold

that the evidence was sufficient, the trial court did not err in instructing the jury, and

Cook was not denied effective assistance. However, the court erred in sentencing

Cook as a recidivist. Thus, we affirm the conviction, vacate Cook’s sentence, and

remand for resentencing.



      1
          OCGA § 16-6-1.
      1. Cook argues that he was entitled to a new trial because the evidence was

insufficient to support his conviction for rape.

      When reviewing a defendant’s challenge to the sufficiency of the
      evidence, we view the evidence in the light most favorable to the jury’s
      verdict, and the defendant no longer enjoys the presumption of
      innocence. We do not weigh the evidence or determine witness
      credibility, but only determine if the evidence was sufficient for a
      rational trier of fact to find the defendant guilty of the charged offense
      beyond a reasonable doubt.2


      The evidence, viewed in the light most favorable to the verdict, showed the

following. On May 6, 2012, C. M. attended a family party with her sister and Cook,

the boyfriend of C. M.’s sister. After the party, Cook and C. M.’s sister went to

C. M.’s home in Grovetown. The three began drinking, and Cook poured C. M. some

shots of alcohol. Suddenly, C. M. became nauseated and short of breath.

      C. M. went to the bathroom and vomited uncontrollably before passing out on

the floor. When she woke up, she was unable to move until her husband came into the

bathroom and helped her get up and into their bed. Later, C. M. awoke briefly when

she heard Cook enter her bedroom, then she lost consciousness again. Cook pulled


      2
       Pye v. State, 322 Ga. App. 125, 126 (1) (742 SE2d 770) (2013) (footnote
omitted). See also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61
LEd2d 560) (1979).

                                          2
the covers off C. M.’s bed and took her pants off. C. M. was in and out of

consciousness and dizzy, and she could not talk. Cook had sexual intercourse with

C. M., then he pulled the covers back over her and left the room.

      After Cook left the room, C. M. was very dizzy and could not keep her balance,

but she was able to get up and get dressed. She was hysterical, screaming and crying,

and she told her husband to get Cook out of their house because he had raped her.

C. M.’s husband ordered Cook out of the house, and Cook and C. M.’s sister left.

      The police were called, and C. M. was taken to the emergency room, where a

doctor performed a sexual assault examination, including taking cervical swabs.

Cook’s DNA was found in cervical swabs taken from C. M.’s vagina.

      The following day, C. M. noticed white residue on the shot glass from which

she had been drinking. After Cook was arrested, C. M.’s sister called the police to

report that she had found a pill, Clonazepam, on the floor of Cook’s apartment along

with a pill crusher. She also told police that the effects of Clonazepam, when mixed

with alcohol, were similar to the symptoms C. M. had experienced. Police then

obtained a search warrant for Cook’s residence and found several bottles of drugs

prescribed to Cook, including Clonazepam.




                                         3
      At least 13 hours after the police first responded, C. M. gave a blood sample.

The subsequent test of C. M.’s blood did not reveal the presence of any

benzodiazepine drugs, which would include Clonazepam, but did find an anti-

depressant, Paxil, which can cause dizziness and drowsiness. No other drugs were

found in C. M.’s blood.

      The State also presented evidence from two other women. J. D. testified that

in August 2010, Cook, who was her husband’s friend, grabbed her breasts and tried

to kiss her. I. M. testified that in November 2010, she and her boyfriend joined Cook

at a bar for drinks. After sharing drinks with her boyfriend and Cook, I. M. felt sick

and vomited in the bathroom of the bar. Cook was waiting for her outside the

bathroom, and the next thing she remembered was waking up in Cook’s truck. When

she awoke, Cook was digitally penetrating her vagina. At trial, Cook testified that he

and C. M. had consensual sex.

      On appeal, Cook argues that the evidence was insufficient to support his

conviction because C. M. consented and, if she had been drugged, there would have

been evidence of such. However, C. M. testified that she was in and out of

consciousness and could not talk. “It was for the jury to determine the credibility of




                                          4
the witnesses and to resolve any conflicts or inconsistencies in the evidence.”3

Despite the lack of physical evidence that C. M. had been drugged and Cook’s claim

that the sexual intercourse was consensual, the evidence was sufficient for the jury

to find lack of consent based on C. M.’s testimony that Cook had sexual intercourse

with her while she was incapacitated.4

      Cook also asserts that there was insufficient evidence of force.

      When the victim is physically or mentally unable to give consent to the
      act, as when she is intoxicated, drugged, or mentally incompetent, the
      requirement of force is found in the constructive force, that is, in the use
      of such force as is necessary to effect the penetration made by the
      defendant.5




      3
          Pye, supra at 127 (1) (footnote omitted).
      4
        See id. (victim’s testimony that the defendant forced her to submit to sexual
intercourse against her will was sufficient to establish lack of consent, despite the
lack of physical trauma and the defendant’s claim that sex was consensual).
      5
         Demetrios v. State, 246 Ga. App. 506, 507 (1) (a) (541 SE2d 83) (2000)
(footnote omitted). See also Baise v. State, 232 Ga. App. 556, 558 (1) (502 SE2d 492)
(1998) (where a victim is incapable of consent due to an intellectual disability, “the
lack of actual force necessary to overcome a resistant victim in other cases is supplied
constructively by the rule that no more force need be used than that necessary to
effect the penetration”).

                                           5
Under these circumstances, C. M.’s testimony that she was in and out of

consciousness when Cook had sexual intercourse with her was sufficient to establish

constructive force.6

       2. Cook contends that the trial court’s instructions to the jury were erroneous

because the charge did not require the jury to find that he had the criminal intent to

commit the offense against C. M.’s will and did not require the jury to find lack of

consent beyond a reasonable doubt. Cook has failed to show error.

       Although he objected at the charge conference, Cook made no objections to the

charge as given. Because an objection at the charge conference does not preserve an

objection to the charge as subsequently given, the failure to object to the charge as

given precludes appellate review unless “the jury charge constitutes plain error which

affects substantial rights of the parties.”7 In order to constitute plain error, four prongs

must be satisfied.

       First, there must be an error or defect—some sort of deviation from a
       legal rule—that has not been intentionally relinquished or abandoned,


       6
        See Demetrios, supra (victim’s testimony that she could not move due to
drugs and hypnosis when defendant had sexual intercourse with her was sufficient to
establish constructive force).
       7
       White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012) (punctuation omitted)
(quoting OCGA § 17-8-58 (b)).

                                             6
        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.8


        Cook contends that the constructive force instruction allowed the jury to

convict him without finding that he intended to commit rape. The court instructed the

jury:

        [W]hen the State has proven beyond a reasonable doubt that the victim
        is physically or mentally unable to give consent to the act as when she
        is intoxicated, drugged, or mentally incompetent the requirement of
        force is found in constructive force. That is, in the use of such force as
        is necessary to effect the penetration made by the defendant.




        8
            Pye, supra at 128 (2) (footnote omitted).

                                             7
The trial court’s charge on constructive force sets forth a correct statement of law.9

Therefore, Cook cannot establish that a plain or obvious legal error occurred, as

required by the first two prongs of the plain-error test.10

      Cook also takes exception to the following instruction:

      [A]gainst her will is synonymous with without her consent. Sexual
      intercourse with a woman whose will is temporarily lost from
      intoxication or unconsciousness arising from the use of drugs or other
      cause or sleep is rape.


This instruction, however, also sets forth a correct statement of law.11 The trial court

also instructed the jury that the State had to prove each element of rape, including

lack of consent, beyond a reasonable doubt. Accordingly, the jury charge did not

constitute error, much less any plain error pursuant to OCGA § 17-8-58 (b).

      3. Cook also asserts that he received ineffective assistance of counsel. To

prevail on this claim, Cook must show that trial counsel’s performance was deficient

      9
        Demetrios, supra; Baise, supra. See also Melton v. State, 282 Ga. App. 685,
691 (2) (c) (639 SE2d 411) (2006) (“Evidence of a victim’s inability to give consent
can be used to impute the element of force in certain sexual abuse cases involving a
victim who is intoxicated, drugged, or mentally incompetent.”).
      10
           See Pye, supra.
      11
         See Johnson v. State, 186 Ga. App. 891, 892 (3) (369 SE2d 48) (1988)
(sexual intercourse with a woman who cannot consent is rape). See also Paul v. State,
144 Ga. App. 106 (2) (240 SE2d 600) (1977) (same).

                                           8
and that, but for the deficiency, “there is a reasonable probability that the outcome of

the trial would have been more favorable to him.”12 Cook must overcome the strong

presumption that counsel’s performance fell within the wide range of reasonable

professional conduct.13 He has failed to do so here.

      (a) Cook argues that his trial counsel rendered ineffective assistance when he

failed to request a contemporaneous limiting instruction prior to I. M.’s testimony.

At trial, prior to J. D.’s testimony, the court instructed the jury that other acts

evidence could only be considered for the limited purpose of showing knowledge and

intent, identity of the perpetrator, or motive and opportunity, and that the evidence

could not be considered for any other purpose. After J. D. testified, another witness

testified. Then, the State called “another similar transaction witness,” I. M., and the

trial court instructed the jury that the same limiting instruction given previously

applied. At the close of trial, the court also re-instructed the jury that evidence

admitted for the limited purpose of showing, if it does, course of conduct, motive,

scheme or lustful disposition could not be considered for any other purpose.




      12
         Benson v. State, 294 Ga. 618, 622 (3) (754 SE2d 23) (2014) (citation
omitted).
      13
           See Leon v. State, 237 Ga. App. 99, 105 (4) (513 SE2d 227) (1999).

                                           9
       As an initial matter, pursuant to OCGA § 24-4-413 (a), “In a criminal

proceeding in which the accused is accused of an offense of sexual assault, evidence

of the accused’s commission of another offense of sexual assault shall be admissible

and may be considered for its bearing on any matter to which it is relevant.”

Accordingly, I. M.’s testimony that Cook sexually assaulted her was admissible, not

just as similar transaction evidence, but also for its bearing on any matter to which it

was relevant.14

       Because the evidence was admissible for its bearing on any matter to which it

was relevant, an objection requesting a limiting instruction would have been

meritless. Counsel’s failure to make a meritless objection cannot constitute deficient

performance.15 Moreover, Cook cannot show that there is a reasonable probability

that, but for this alleged failure on the part of counsel, the trial result would have been

different where the jury was instructed to consider the evidence for a limited

purpose.16


       14
        See Marlow v. State, __ Ga. App. __ (1) (b) (Case No. A16A0573, decided
April 22, 2016).
       15
            Wesley v. State, 286 Ga. 355, 356 (3) (a) (689 SE2d 280) (2010).
       16
         See Sims v. State, 317 Ga. App. 420, 422 (1) (731 SE2d 105) (2012) (even
if failure to request a contemporaneous limiting instruction was deficient
performance, defendant could not show prejudice because trial court gave a limiting

                                            10
       (b) Cook contends that his trial counsel was also ineffective in failing to object

to the introduction of the forensic toxicologist’s testimony as to the half-life of certain

drugs and in failing to obtain and present the testimony of a defense expert at trial.

Specifically, Cook argues that his trial counsel rendered deficient performance when

he failed to object to the testimony of the forensic toxicologist because the testimony

was irrelevant and prejudicial, the State failed to provide any relevant discovery, and

the toxicologist was not an expert in pharmacology.

       The State called a forensic toxicologist from the GBI crime lab; Cook

stipulated that she was an expert. The toxicologist testified that GHB (gamma-

hydroxybutyric acid) and Rohypnol can cause dizziness, drowsiness, nausea and

confusion and that Clonazepam can also cause these symptoms when mixed with

alcohol. The toxicologist also testified that a small dose of Clonazepam could be out

of a person’s system within nine hours, and that neither GHB nor Rohypnol would

still be in a person’s bloodstream thirteen hours after dosage. On cross-examination,

trial counsel elicited from the toxicologist that every tested sample from the victim

was negative for these drugs and that testing the samples was “about all” the

toxicologist could do.



instruction at the close of evidence).

                                            11
      At the hearing on Cook’s motion for new trial, an expert in pharmacology and

toxicology testified that Clonazepam remains in the bloodstream for two to five days

and would be revealed, if present, in a test of blood drawn thirteen hours after dosage,

as would Rohypnol, although GHB would not be. At the hearing, trial counsel also

testified that his strategy had been to attack C. M.’s credibility and show that she had

consented to the sexual encounter. Trial counsel had not believed that he needed an

expert witness in order to attack C. M.’s credibility.

      “Not objecting to testimony but instead subjecting it to cross-examination may

be part of a reasonable trial strategy,” and here, on cross-examination, trial counsel

reinforced that C. M.’s blood samples were negative for any drugs (other than Paxil)

and cast doubt as to the toxicologist’s ability to reach any further conclusions.17

Furthermore, Cook has failed to show prejudice. C. M. testified that she became ill

and passed out and that Cook raped her while she was incapacitated, and her claims

were supported by an immediate outcry, as well as physical evidence. I. M. also

testified that Cook sexually assaulted her while she was unconscious. In light of this

strong evidence of guilt, there is no reasonable probability that the outcome of the



      17
         Al-Attawy v. State, 289 Ga. App. 570, 573 (1) (657 SE2d 552) (2008)
(footnote omitted).

                                          12
trial would have been more favorable to Cook if trial counsel had objected to or

further countered the toxicologist’s testimony.18

      (c) Cook contends that trial counsel was ineffective in failing to request the

removal of a juror after the juror revealed that he knew one of the witnesses. During

deliberations, a juror sent the court a note stating that he knew C. M.’s husband from

his business as a mechanic and had “seen him to be a respectable person and citizen.”

In response, the trial court asked the juror if he could be fair and impartial, and the

juror indicated that he could do so. Trial counsel did not ask that the juror be excused.

At the hearing on the motion for new trial, trial counsel testified that he had conferred

with Cook and they decided to leave the juror on the panel because, choosing

between this juror and the first alternate juror, this juror was a man and they preferred

a male-dominated jury.

      Decisions regarding which jurors to accept “are the exclusive province of the

lawyer after consultation with the client.”19 Trial counsel testified that his failure to



      18
          See Kirkland v. State, 334 Ga. App. 26, 36 (5) (c) (778 SE2d 42) (2015)
(defendant could not show prejudice from counsel’s failure to call an expert witness
to testify to flaws in a forensic interview where there was an outcry before the
interview occurred and similar transaction evidence, as well as incriminating
statements by the defendant).
      19
           Martin v. State, 267 Ga. App. 28, 30 (1) (598 SE2d 828) (2004).

                                           13
request the removal of this juror was strategic, and Cook has not overcome the strong

presumption that trial counsel’s actions constituted reasonable professional

assistance.20

      4. Finally, Cook argues, and the State concedes, that the trial court erred by

sentencing Cook as a recidivist under OCGA § 17-10-7 (a) (2012) because he had not

been convicted of a felony prior to the commission of the instant offense. We agree,

and therefore vacate Cook’s sentence and remand for resentencing.

      “The interpretation of a statute is a question of law, which this court reviews

de novo.”21

      On April 9, 2012, approximately one month prior to C. M.’s rape, Cook entered

an Alford plea to one count of false imprisonment of I. M. Cook was sentenced as a

first offender. The rape of C. M. occurred on May 6, 2012. Several days later, on May

10, 2012, Cook’s first offender status was revoked based on a misdemeanor traffic



      20
          See Higginbotham v. State, 287 Ga. 187, 191 (5) (a) (695 SE2d 210) (2010)
(trial counsel did not render ineffective assistance when he failed to request removal
of juror who was “pretty sure” he knew the father of murder victim where juror did
not meet the qualification for dismissal for cause); Stephens v. State, 224 Ga. App.
184, 186 (3) (480 SE2d 235) (1997) (counsel did not render ineffective assistance
where, as a matter of strategy, counsel declined to strike juror who knew defendant).
      21
        Hobbs v. State, 334 Ga. App. 241, 245 (3) (779 SE2d 15) (2015) (footnote
omitted).

                                         14
offense, and Cook was sentenced to ten years’ imprisonment for the false

imprisonment of I. M. On June 5, 2013, the trial court sentenced Cook as a recidivist

to life in prison for the rape of C. M., consecutive to the ten-year term for false

imprisonment.

      “A crime must be construed and punished according to the provisions of the

law existing at the time of its commission.”22 On May 6, 2012, at the time of the

commission of the offense against C. M., OCGA § 17-10-7 (a) (2012) provided that

“any person convicted of a felony offense in this state . . . who shall afterwards

commit a felony” shall be sentenced to the maximum possible punishment for the

subsequent offense.23

      “A first offender’s guilty plea does not constitute a ‘conviction’ as that term is

defined in the Criminal Code of Georgia.”24 Rather, under the first offender statute,




      22
         Riley v. State, 243 Ga. App. 697, 698 (534 SE2d 437) (2000) (citation
omitted).
      23
         Effective July 1, 2012, OCGA § 17-10-7 (a) was amended to provide “any
person who, after having been convicted of a felony offense in this state . . . commits
a felony” shall be sentenced to the maximum possible sentence. Ga. L. 2012, pp. 926,
949, §§ 4-4, 9-1 (a).
      24
         Davis v. State, 273 Ga. 14, 15 (537 SE2d 663) (2000) (citations and
punctuation omitted).

                                          15
“until an adjudication of guilt is entered, there is no conviction.”25 “[T]he case has,

in effect, been suspended during the period of probation” until “eventually the

probation is either revoked or it is discharged; unless it is revoked, there is no

conviction.”26

      Cook’s first offender status was revoked and an adjudication of guilt was

entered — and he was thus convicted of a felony — on May 10, 2012, after the rape

of C. M.27 Because Cook’s first offender status had not yet been revoked, Cook was

not a convicted felon at the time he raped C. M. and he could not be sentenced as a

recidivist for that crime.28

      Although Cook was a convicted felon at the time he was convicted of the rape

of C. M., the recidivist sentencing statute is clear that the commission of the




      25
           Id.
      26
           Id. (citations and punctuation omitted). See also OCGA § 42-8-60 (a), (b).
      27
        See Davis, supra (where offender’s 1991 first offender probation had not
been revoked, it had not become a conviction). See also Robbins v. State, 326 Ga.
App. 812, 813 (757 SE2d 452) (2014) (“[U]nder the first offender statute, until an
adjudication of guilt is entered, there is no conviction.”) (citation omitted).
      28
         See Davis, supra (where offender’s 1991 first offender probation had not
been revoked prior to his 1997 felony conviction, he could not be sentenced as a
recidivist under OCGA § 17-10-7 (b) (2)).

                                          16
subsequent felony must occur after the prior conviction.29 Moreover, even if there was

some ambiguity in either the first offender statute or the recidivist sentencing statute,

it must be construed in favor of Cook.

      [P]enal statutes are always construed strictly against the State and
      liberally in favor of human liberty. Thus, even if the statute increasing
      a penalty were capable of two constructions, it should be construed so
      as to operate in favor of life and liberty.30


We therefore vacate Cook’s sentence as to his rape conviction and remand this case

to the trial court for resentencing.

      Judgment of conviction affirmed; sentence vacated and case remanded for

resentencing. Dillard and Peterson, JJ., concur.




      29
           OCGA § 17-10-7 (a) (2012).
      30
           Hobbs, supra at 246 (3) (a) (punctuation and footnotes omitted).

                                           17
