                               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/


                                                                    August 25, 2014




In the Court of Appeals of Georgia
 A14A1011. SMITH v. THE STATE.

      MCFADDEN, Judge.

      After a jury trial, Keith Antonio Smith was convicted of aggravated assault

(OCGA § 16-5-21), aggravated battery (OCGA § 16-5-24), and cruelty to children in

the third degree (OCGA § 16-5-70 (d)). He challenges the sufficiency of the evidence

supporting the aggravated battery conviction, but the evidence authorized the jury to

find he had committed that offense. He also challenges the effectiveness of his trial

counsel in connection with his decision not to testify at trial, but he has not met his

burden of showing that he received ineffective assistance. Accordingly, we affirm.

      1. Sufficiency of the evidence.

      Smith argues that the evidence was insufficient to support his conviction for

aggravated battery, an offense committed when a person “maliciously causes bodily
harm to another by depriving him or her of a member of his or her body, by rendering

a member of his or her body useless, or by seriously disfiguring his or her body or a

member thereof.” OCGA § 16-5-24 (a). 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).

      So viewed, the evidence showed that on June 13, 2011, Smith was living in an

apartment with, among others, his girlfriend, their four-year-old daughter, and his

girlfriend’s mother, Carla Hunter. That night, Smith and Hunter began arguing about

whether Hunter should iron clothes in a bedroom where the child was sleeping. At

some point during the argument, Smith took the child into another room. As the

argument continued, Smith retreated to his bedroom and retrieved and loaded a gun.

His girlfriend screamed for Hunter to leave the house and tried to restrain Smith.

Smith broke away, walked quickly to the room in which Hunter was ironing, and fired

the gun several times into the room, striking Hunter in the arm and shoulder. Hunter’s

injuries made it difficult for her to write and for several months she required

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assistance with personal care tasks such as cooking and bathing. She underwent

physical therapy to regain feeling in her arm.

      The state charged Smith with committing aggravated battery by rendering her

arm useless. Smith argues that the evidence showed only that Hunter’s use of her arm

was temporarily impaired, not that the arm was rendered useless. But “even the

temporary reduced use of a bodily member may be sufficient to render it useless

under the aggravated battery statute.” Biggins v. State, 299 Ga. App. 554, 555 (1)

(683 SE2d 96) (2009) (citations and punctuation omitted). The evidence that, for

several months after the shooting, Hunter struggled to write and to care for herself,

had to rely on another person for help in tasks such as cooking and bathing, and had

to undergo physical therapy, authorized Smith’s conviction for aggravated battery.

See Wall v. State, 283 Ga. App. 560, 561 (1) (642 SE2d 195) (2007) (finding

evidence that victim had suffered loss of use of elbow, supporting defendant’s

conviction for aggravated battery, where victim’s elbow had been broken, victim had

undergone physical therapy to regain strength in her arm, and victim had spent three

months in safe house because she could not care for herself).

      2. Ineffective assistance of counsel.



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      Smith did not testify at trial, and he argues that his trial counsel was ineffective

in advising him on this decision. To prevail, he must show

      that counsel’s performance was deficient and that 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. If an appellant fails to meet his or her burden of
      proving either prong of [this] 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.


Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010) (citations and

punctuation omitted).

      The record shows that, after the state’s case-in-chief, the trial court engaged in

a colloquy with Smith about his decision not to testify and found that Smith had

“discussed his Constitutional rights with his lawyer and that it is a free and voluntary

decision on his part to not take the stand and offer testimony.” Smith does not

challenge the effectiveness of his trial counsel up to that point. Instead, he argues that

his trial counsel should have revisited the issue with him at a later point – when the

trial court decided not to give Smith’s requested jury charge on the affirmative


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defense of accident. Although trial counsel had elicited some evidence during the

state’s case-in-chief that the gun had discharged accidentally, the trial court held that

there was not enough evidence to support the accident charge, and Smith has not

challenged this ruling on appeal.

      Smith argues that accident was his sole defense and that his testimony would

have supported the giving of the charge. Accordingly, he argues that his trial counsel

was deficient in two respects: by failing to revisit the issue of testifying with him after

the jury charge ruling and by failing to advise him to testify. As detailed below, Smith

has not shown that he was prejudiced by trial counsel’s failure to revisit the issue, and

he has not shown that trial counsel was deficient in concluding, despite the jury

charge ruling, that it would not be in Smith’s best interest to testify.

      (a) Failure to revisit the issue of testifying.

      “Defense counsel bears the primary responsibility for advising the defendant

of his right to testify or not to testify, the strategic implications of each choice, and

that it is ultimately for the defendant himself to decide.” Thornton v. State, 292 Ga.

796, 798 (2) (a) (741 SE2d 641) (2013) (citation omitted). Through the colloquy with

Smith, the trial court determined that he had made an informed and voluntary decision

not to testify. See generally Jones v. State, 290 Ga. 576, 579 (3) (722 SE2d 853)

                                            5
(2012) (rejecting claim of ineffective assistance based on allegedly deficient advice

about defendant’s testimony, where trial court had informed defendant of his right to

testify and his right to decide whether he would testify). Assuming without deciding

that trial counsel should have revisited this issue with Smith to discuss the

implications of the trial court’s subsequent jury charge ruling, Smith has not shown

that this alleged deficiency prejudiced him. Nothing in the record suggests that trial

counsel would have advised Smith differently had she revisited the issue. To the

contrary, trial counsel testified on direct examination at the hearing on the motion for

new trial that, even after the jury charge ruling, she did not think it was in Smith’s

best interest to testify; and Smith’s new trial counsel did not follow up. And when

asked at the hearing on the motion for new trial whether he would have made a

different decision about testifying had he known the implications of the trial court’s

ruling on the jury charge, Smith indicated that he would have continued to follow his

attorney’s advice:

      Q. Had you known that the jury, that because you didn’t testify, the jury
      wouldn’t even be able to consider accident, had you known that, what
      would – what would have been your decision about testifying or not
      testifying?




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      A. No, I was unaware of how it all works because my lawyer told me not
      to testify because there’s no need for it.


      Q. Okay. You were following her advice?


      A. Right. And me, not being a lawyer, never studied any law book or
      anything, I listened.


      Accordingly, Smith has not shown that he would have chosen to testify,

contrary to his trial counsel’s advice, if trial counsel had revisited the issue.

Consequently, he has not met his burden of showing a reasonable likelihood that, but

for trial counsel’s failure to revisit the issue, the outcome of the trial would have been

different. See Bridges, 286 Ga. at 537 (1).

      (b) Determination that testifying was not in Smith’s best interest.

      Smith argues that trial counsel was deficient in believing that it would not be

in Smith’s best interest to testify. He argues that trial counsel’s opinion rested on a

misapprehension of law regarding the potential negative impact of Smith’s testimony

on his case. We disagree.

      At the hearing on the motion for new trial, trial counsel testified that, despite

the trial court’s jury charge ruling, she did not believe Smith should testify based on

information he had previously given trial counsel, which was that his “initial firing

                                            7
of the weapon was not an accident.” Smith had told trial counsel that he first fired two

or three “warning” shots into the room occupied by Hunter but did not intend to strike

her, that his girlfriend began struggling with him for the gun, and that the gun then

accidentally discharged several more shots. Although at the hearing Smith stated that

he would have testified to a different version of events, in which all of the shots fired

were accidental, he conceded that he did not share that version of events with his trial

counsel. From the version of events known by trial counsel, she believed that Smith’s

actions demonstrated aggravated assault, one of the offenses with which he was

charged.

      Smith argues that trial counsel was wrong in believing that his act of firing

“warning” shots constituted aggravated assault under the method of aggravated

assault upon which the trial court charged the jury (aggravated assault by attempting

to violently injure another under OCGA § 16-5-20 (a) (1)). Nevertheless, it was

reasonable for trial counsel to believe that Smith’s testimony would put him at risk

of conviction for aggravated assault. Smith told trial counsel that he fired a gun

several times into the room occupied by Hunter. The jury could have inferred from

Smith’s actions that he intended to commit a violent injury to Hunter, despite his

protest to the contrary. See Jordan v. State, 322 Ga. App. 252, 254 (2) (744 SE2d

                                           8
447) (2013) (jury could infer defendant intended to shoot victim from evidence that

defendant fired shots in victim’s direction). “A jury may infer criminal intent from the

circumstances, [cit.] and there is a rebuttable presumption that ‘(a) person of sound

mind and discretion . . . intend(s) the natural and probable consequences of his acts.’”

Id. (quoting OCGA § 16-2-5).

      Consequently, when the trial court declined to give Smith’s requested jury

charge on accident, trial counsel was faced with the dilemma of whether to present

potentially damaging evidence in order to get the accident charge. Instead, trial

counsel chose to highlight in closing argument the evidence that suggested the gun

had discharged accidentally. We cannot say that this decision fell outside the wide

range of reasonable professional lawyering such that no reasonable lawyer at the trial

could have acted, in the circumstances, as Smith’s trial counsel acted. See Bridges,

286 Ga. at 537 (1). Accordingly, Smith has not shown that his trial counsel was

deficient in failing to change her advice that he not testify.

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




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