                               SECOND DIVISION
                                ANDREWS, P. J.,
                             MCFADDEN and RAY, 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 24, 2015




In the Court of Appeals of Georgia
 A14A1893. DORSEY v. THE STATE.

      MCFADDEN, Judge.

      Markell Dorsey and four co-defendants were tried jointly before a jury for

murder and other offenses related to the shooting death of Ron Strozier. After the

trial, Dorsey was convicted of voluntary manslaughter, conspiracy to commit

aggravated assault, conspiracy to commit criminal damage to property, possession of

a firearm by a convicted felon, and possession of a firearm during the commission of

a felony and theft by receiving stolen property. Dorsey appeals, challenging the

sufficiency of the evidence, the sentencing on both conspiracy counts, the denial of

a motion to sever, the denial of a mistrial after impermissible character testimony, and

the effectiveness of his trial counsel. However, there was sufficient evidence to

support the verdict; any error in sentencing on the conspiracy counts was harmless;
there was no abuse of discretion in the denial of a severance; the trial court properly

struck the improper character testimony and gave a curative jury instruction, rather

than granting a mistrial; and there has been no showing that trial counsel’s

performance was both deficient and prejudicial. Accordingly, we affirm.

      1. Sufficiency of the evidence.

      Dorsey argues that there was insufficient evidence to support his voluntary

manslaughter conviction because the state did not prove that any of the co-defendants

shot Strozier. However, in a separate appeal, the Georgia Supreme Court found

sufficient evidence to affirm the convictions of co-defendant Michael Grissom, noting

that “[t]he relevant events arose out of a feud between Grissom’s friend and

co-defendant Markell Dorsey, and Dorsey’s associates, on the one side, and an

individual known only as ‘D-Bone,’ and D-Bone’s associates, on the other.” Grissom

v. State, ___ Ga. ___ (Case No. S14A1431, decided January 20, 2015). Pursuant to

Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the Court

determined that the evidence, viewed in the light most favorable to the verdicts,

showed the following facts.

            [T]he feud commenced with a physical altercation on July 31,
      2005, between Dorsey and D-Bone[, identified at trial by the name
      Darian Jackson, ] over comments D-Bone made about a man referred to

                                          2
as “Tay-Tay.” Evidence was presented that Tay-Tay’s real name was
Dontavious Pettway. In the initial altercation, Dorsey was roundly
beaten and, in order to exact revenge, Dorsey and co-defendant Rico
Sims traveled from the Chastain West apartment complex where they
were staying to an apartment complex located next door, known as
Buckingham Court, where D-Bone lived. Dorsey challenged D-Bone
and his associates to another fight. Sims was wearing a bullet-proof vest
and wielding an assault rifle. During this exchange, D-Bone and others,
including Ron Strozier, disarmed Sims and took his weapon and vest.
Later that day, D-Bone was overheard talking on the phone to someone
who told D-Bone “y’all better tool up.”
       The following day, August 1, Grissom, Dorsey, and Sims were at
the Chastain West home of a friend where Grissom told William
Edwards he planned on shooting up D-Bone’s car. A wooded vacant
parcel of land separated the Chastain West complex from the
Buckingham Court complex, and testimony established that trails ran
through the woods and that the woods were known to be a place where
drugs were sold and used. Later that evening, Grissom was seen leaving
the woods moments after a loud shot rang out that sounded like a
shotgun blast. In statements to police, Grissom and several of his
co-defendants[, including Dorsey,] admitted they were in the woods
around the time of the shotgun blast, but denied they were involved.
Strozier’s body was located in the woods the morning of August 2. An
autopsy determined he had died from wounds to his neck and torso
caused by buckshot from a shotgun blast, and the testimony established
that the window of time for Strozier’s death encompassed the time at
which the shot was heard. A shotgun was recovered during the
investigation of these events, and Grissom admitted to police that he had
been in possession of the shotgun and stated he obtained it from his
cousin Dontavious Pettway, but Grissom denied he had used it.
Edwards, who had known Grissom for several years at the time of the
shooting and was familiar with his voice, overheard Grissom on the
phone with Sims the day after Strozier was shot to death, telling Sims he
had “shot someone in the head.”


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             About an hour after the shotgun blast was heard, Grissom, armed
      with a .357 magnum handgun, traveled to Buckingham Court with
      Dorsey, Sims, and others in two separate cars, both of which had been
      stolen. A shootout between the two rival groups ensued, and Grissom
      admitted in his statement to police that he fired at least two shots from
      his handgun during this exchange. Grissom also admitted that after the
      car in which he was riding crashed into a fire hydrant he dropped his
      handgun and fled the scene. Law enforcement later recovered the gun
      inside the crashed car. Christina Green, an eyewitness to the shootout,
      heard multiple gunshots and saw three or four individuals fleeing
      through the woods. Green ran across the street to avoid the gunfire.

Grissom, supra at ___ .

      In addition to the foregoing, the evidence showed that Dorsey was present

when the plan to retaliate against D-Bone was made, that he was present when there

were discussions about seeking out Strozier, that he admitted entering the woods on

the night in question for the purpose of shooting at D-Bone and his truck, that he was

in the woods with Grissom and others when Strozier was shot, that he fled from the

scene of the shooting, and that he later abandoned the stolen car with the suspected

murder weapon in it.

      In arguing that the state failed to prove that any of the co-defendants shot

Strozier, Dorsey points to inconsistencies in the evidence. But as the Supreme Court

explained, “[r]esolving evidentiary conflicts and inconsistencies and assessing

witness credibility are the province of the fact finder, not the appellate court.”

                                          4
Grissom, supra at ___ (1) (citation and punctuation omitted). In this case, “the

evidence presented at trial, as summarized above, was sufficient to support the

verdict.” Id.

      2. Sentences on conspiracy counts.

      Citing Braverman v. United States, 317 U. S. 49 (63 SCt 99, 87 LE 23) (1942),

Dorsey contends that the trial court erred in sentencing him separately on the two

conspiracy counts because the evidence only showed a single conspiracy. Indeed,

“[u]nder principles enunciated in Braverman[, supra at 53], whether the object of a

single agreement is to commit one or many crimes, it is in either case the agreement

that constitutes the conspiracy, and if there is only one agreement there can be only

one conspiracy. [Cit.]” Price v. State, 247 Ga. 58, 60 (273 SE2d 854) (1981). The

state counters that the evidence showed that there were two separate agreements, not

just one, and thus Braverman is inapplicable. However, we need not resolve that issue

because even if we assume error in the sentencing of Dorsey on both conspiracy

counts, the error was harmless.

      Our Supreme Court has adopted the rule of “cases exemplified by Stephens v.

United States, 347 F2d 722 (5th Cir. 1965) (4) [which] hold that an improper

conviction on multiple counts of a conspiracy indictment is harmless error where the

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defendant’s sentence is within legal limits for conviction of a single conspiracy.”

Price, supra at 61, n. 5. Here, the trial court imposed a total sentence of ten years for

the two conspiracy offenses, sentencing Dorsey to serve five years for conspiracy to

commit aggravated assault with a deadly weapon and another five years for

conspiracy to commit criminal damage to property in the first degree.

      That sentence was within the legal limits for conviction of a single conspiracy.

“A person convicted of the offense of criminal conspiracy to commit a felony shall

be punished by imprisonment for not less than one year nor more than one-half the

maximum period of time for which he could have been sentenced if he had been

convicted of the crime conspired to have been committed.” OCGA § 16-4-8. The

maximum period of time for which Dorsey could have been sentenced if he had been

convicted of the aggravated assault that was the underlying subject of one of the

conspiracy counts is 20 years. See former OCGA § 16-5-21 (b)1 (person convicted of

aggravated assault shall be punished by imprisonment for not less than one nor more

than 20 years). Thus, the maximum sentence for conspiracy to commit aggravated

assault is one-half of that 20 years, or ten years. Because the total sentence imposed


      1
       This provision, in effect when Dorsey was tried, is now codified at OCGA §
16-5-21 (c).

                                           6
for both conspiracy offenses was ten years, the sentence was within the legal limits

for a person convicted of a single conspiracy to commit aggravated assault, and

therefore any error in sentencing Dorsey for both conspiracy charges was harmless.

Price, supra.

      3. Motion to sever.

      Dorsey claims that the trial court erred in failing to sever his trial from that of

Grissom because they presented antagonistic defenses and he was unable to fully

present his statement to police which implicated Grissom as the shooter. The claim

is without merit.

      “In a capital case in which the death penalty is not sought, a trial court’s

decision not to sever the trials of co-indictees is reviewed for abuse of discretion, and

the movant must make a clear showing that the joint trial was prejudicial and resulted

in a denial of due process. The existence of antagonistic defenses alone is insufficient

to require the severance of a joint trial.” Barge v. State, 294 Ga. 567, 570 (3) (755

SE2d 166) (2014) (citations and punctuation omitted).

      While Dorsey claims he and Grissom presented antagonistic defenses, the trial

court ruled otherwise. The trial judge noted that she had reviewed all of the co-

defendants’ statements thoroughly and found no showing of antagonistic defenses.

                                           7
Indeed, at trial, Dorsey did not present a defense implicating Grissom or any of the

other co-defendants, and instead asserted a defense that Strozier was a drug dealer

and that several other individuals, including known drug users, could have committed

the shooting.

      Although Dorsey asserts in his brief that the redacted parts of his statement

implicated Grissom as the shooter, he has not cited any portion of the record showing

the exact statements that were redacted or any proffer of such evidence. Nevertheless,

even if we assume that the redacted statements did implicate Grissom, such evidence

would have merely been cumulative of other evidence in the record showing that

Grissom was the shooter. Had Dorsey wanted to pursue a defense antagonistic to

Grissom, we fail to see how he was precluded from doing so based on the evidence

in the record. Moreover, the evidence against Dorsey implicated him as a party to the

shooting committed by Grissom, so we fail to see how a defense by Dorsey

implicating Grissom as the shooter would have benefitted him. Indeed, Dorsey’s trial

counsel argued to the jury that the state was required, but had failed, to prove that one

of the co-defendants intentionally killed Strozier and that Dorsey was a party to that

crime. Under these circumstances, Dorsey has failed to carry his burden of making

a clear showing that the joint trial was prejudicial and a denial of due process. Barge,

                                           8
supra. Consequently, we conclude that “the trial court did not abuse its discretion in

denying [Dorsey’s] motion to sever.” Jones v. State, 277 Ga. App. 185, 188 (626

SE2d 185) (2006) (citation omitted).

      4. Motion for a mistrial.

      Dorsey complains that the trial court erred in denying his motion for a mistrial

after a state’s witness gave impermissible character testimony by mentioning

Dorsey’s involvement with drugs. We disagree.

      While being questioned by attorneys for two of the co-defendants, the witness

testified that Dorsey was good friends with an individual named Keyontae Mitchell,

that Dorsey would do whatever Mitchell told him to do, and that she believed this

about Dorsey because of things she had seen and heard. The prosecuting attorney

followed up on this line of questioning by asking the witness what things she had

seen and heard to make her believe this about Dorsey, and the witness responded:

“We in the house one day. I guess whatever happened, whatever, whatever, I ain’t

fixing to get into it. They got some drugs somewhere. He told them to go sell it.”

Dorsey’s attorney immediately objected and moved for a mistrial. The trial court

denied a mistrial, but sustained the objection, struck the testimony and instructed the

jury not to consider it.

                                          9
      “Whether to declare a mistrial is a question committed to the discretion of the

trial judge, and the denial of a mistrial is reversible error only if it appears that a

mistrial was essential to preserve the defendant’s right to a fair trial.” McKibbins v.

State, 293 Ga. 843, 848 (3) (750 SE2d 314) (2013) (citation and punctuation omitted).

Here, Dorsey has made no showing that a mistrial was essential to preserve his right

to a fair trial. On the contrary, the trial court preserved that right by taking immediate

corrective action to strike the testimony and give a curative instruction to the jury.

“Because the trial court acted immediately, ruled out the offensive testimony, and

properly instructed the jury to disregard the statement, . . . we find no abuse of

discretion in denying the motion for mistrial. [Cit.]” McGee v. State, 267 Ga. 560, 565

(3) (480 SE2d 577) (1997) (holding that improper character testimony did not

necessitate a mistrial).

      5. Ineffective assistance of counsel.

      Dorsey claims his trial counsel was ineffective in failing to object to the state’s

alleged comment on his right not to testify and in requesting a jury instruction on

prior consistent statements. To prevail on such claims, Dorsey must “show both that

his counsel’s performance was professionally deficient and that but for counsel’s

unprofessional conduct, there is a reasonable probability the outcome of the

                                           10
proceedings would have been different.” Hill v. State, 291 Ga. 160, 164 (4) (728

SE2d 225) (2012) (citations and punctuation omitted). However, he has failed to

make both showings.

      a. Failure to object to alleged comment on right to remain silent.

      During his closing argument, the prosecutor cited the testimony of a witness

who had seen the incident when D-Bone and others confronted Dorsey and Sims and

took a bulletproof vest and gun from them. The prosecutor then stated, “You don’t

hear Markell Dorsey or Rico Sims say that never happened. You don’t hear Rico Sims

and Markell Dorsey say that [witness] is a liar, I was never near Washington Road on

that day. Although that’s what they initially said to the police when they were

interviewed.” Trial counsel did not object to this argument.

      At the motion for new trial hearing, trial counsel testified that the reason she

did not object to the argument was because she did not view it as a comment on the

fact that Dorsey had not testified at trial, but instead believed it was proper argument

based on the videotaped statement that Dorsey had given to police and which was in

evidence, having been played for the jury. Dorsey has pointed to nothing that

contradicts trial counsel’s view of the argument, and in fact the prosecutor

specifically referenced the statement given to police during that argument.

                                          11
       Given that Dorsey’s statement was in evidence and that the state’s argument

expressly referred to it, we find that trial counsel’s strategic decision not to raise what

she viewed as a meritless objection was not deficient.

       A decision by trial counsel not to object to statements in closing
       argument may fall within the ambit of trial strategy, and in the absence
       of evidence to the contrary, trial counsel’s actions are presumed to be
       strategic. Moreover, even assuming that trial counsel should have
       objected to the comment, [Dorsey] has not shown that but for counsel’s
       failure to object [to this isolated comment], there was a reasonable
       probability that he would not have been convicted.

Sweet v. State, 278 Ga. 320, 325-326 (8) (602 SE2d 603 (2004) (citations omitted).

Thus, this claim of ineffectiveness of trial counsel fails. Compare Cheeks v. State, 325

Ga. App. 367 (750 SE2d 753) (2013) (trial counsel ineffective in failing to object to

state’s egregious and repeated questions and comments on defendant’s silence as

evidence of guilt).

       b. Request to charge on prior consistent statements.

       Citing Stephens v. State, 289 Ga. 758, 759 (1) (a) (716 SE2d 154) (2011), in

which the Georgia Supreme Court held that “an instruction on prior consistent

statements should no longer be given except where the circumstances of an unusual

case suggest that the jury may have the mistaken impression that it cannot consider

a prior consistent statement as substantive evidence,” Dorsey argues that trial counsel

                                            12
was ineffective in requesting such a charge. However, the trial in this case was held

in 2006, long before the Stephens decision and at a time when the pattern jury

instructions included a charge on prior consistent statements. Id. at 758-759 (1) (a).

Thus, the holding in Stephens is inapposite.

      Nevertheless, the actual charge requested in this case did not follow the pattern

charge of the time, which referred to a witness having given a statement before trial

consistent with that witness’ own trial testimony. Id. The requested charge in this case

did not refer to such a single witness, but instead referred to the trial testimony of one

witness being consistent with that of another witness. However, even assuming that

trial counsel’s request of such a charge was deficient, Dorsey has not shown a

reasonable probability that the outcome of the trial would have been different but for

that deficiency. “Based upon the strength of the evidence presented against [Dorsey,]

we conclude that [he] cannot meet his burden of demonstrating prejudice from

counsel’s request for an erroneous charge.” Bellamy v. State, 312 Ga. App. 899, 903

(3) (a) (720 SE2d 323) (2011) (finding no ineffective assistance where counsel

requested jury charge on prior consistent statements).

      Judgment affirmed. Andrews, P. J., and Ray, J., concur.



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