                               THIRD DIVISION
                                  GOBEIL,
                           COOMER and HODGES, 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 19, 2019




In the Court of Appeals of Georgia
 A18A1858. SMITH v. THE STATE.

      GOBEIL, Judge.

      Following a jury trial, Wilbert Leon Smith was convicted of criminal attempt

to commit rape, false imprisonment, and simple battery, and was sentenced to 40

years, 10 of which are to be served on probation. He was acquitted of two counts of

aggravated assault. Smith appeals from the denial of his motion for new trial, arguing

that (1) his acquittal on the aggravated assault counts and conviction on the criminal

attempt to commit rape count resulted in a repugnant verdict; and (2) his trial counsel

was ineffective for failing to challenge the guilty verdict on the criminal attempt

charge as repugnant. For the reasons set forth below, we affirm.

      “On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, with the defendant no longer enjoying a presumption of
innocence. We neither weigh the evidence nor judge the credibility of witnesses, but

determine only whether the evidence was sufficient for a rational trier of fact to find

the defendant guilty of the charged offense beyond a reasonable doubt.” Reese v.

State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citations omitted); see also

Jackson v. Virginia, 443 US 307, 319 (II) (B) (99 SCt 2781, 61 LEd2d 560) (1979).

      So viewed, the evidence at trial established that the victim met Smith a few

weeks before the incident, and Smith gave her his phone number. In a subsequent

conversation, Smith asked the victim several times “to be more than friends,” but the

victim told him that she was not interested. On January 21, 2016, Smith drove the

victim to a store and a job interview. On the way back from the interview, Smith

showed her a handgun. Later that day, Smith agreed to rent the victim a hotel room

at the Atlanta Airport Inn using his I.D. (because the victim did not have any I.D.)

and the victim’s money. After getting settled in the room, the victim told Smith she

was going to sleep and was not comfortable with him staying there, so Smith left.

      However, in the early morning hours of January 22, 2016, the victim awoke to

find Smith standing next to the bed with a gun against her head. When the victim

tried to reach for her phone, Smith began choking her with one hand and held a knife

to her neck. The victim testified that when Smith opened the knife, it sounded like a

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boxcutter. She tried to fight Smith off, but he threw her to the floor, and started

choking her again. After Smith overpowered the victim, he made her get up and take

off her clothes. She testified that she did not want to take off her clothes, and only did

so because she “thought it was a life or death situation” and believed Smith was going

to “snap [her] neck.” The victim laid down on the bed, and Smith put his fingers

inside her vagina. Smith then took off his pants, but was interrupted when a Forest

Park police officer knocked at the hotel room door. The officer observed that Smith’s

pants were undone and a naked woman was behind Smith and mouthed the words

“help me.” Upon a search of the room, police discovered a cloth holster for a smaller

caliber firearm on the floor, “a box cutter-style knife” under the mattress, condoms,

lubrication, and male enhancement pills (the victim testified that the condoms,

lubrication, and pills were not in the room when she went to sleep). However, no

firearm was found in the hotel room or in a search of Smith’s vehicle.

      A grand jury indicted Smith on two counts of aggravated assault, one count of

criminal attempt to commit rape, one count of false imprisonment, and one count of

simple battery. The aggravated assault charges alleged that he assaulted the victim

with a gun (Count 1) and a boxcutter (Count 2) , while the criminal attempt to commit

rape charge alleged that Smith threatened the victim “with a gun and a boxcutter,

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forced her to take her pants off, and took his own pants off, acts which constitute a

substantial step toward the commission of said crime.” At the conclusion of the trial,

a jury acquitted Smith of both counts of aggravated assault and convicted him of the

remaining charges.

      1. Smith argues that his conviction for criminal attempt to commit rape

“constituted a repugnant verdict, lacking in reasonable intendment.” He maintains

that his acquittal on the aggravated assault charges and his conviction on the criminal

attempt to commit rape charge cannot be legally or logically reconciled because all

three counts were based on the same alleged facts (that he used a gun and box cutter

to assault/threaten the victim), and, therefore, his acquittal on the aggravated assault

counts precluded a guilty verdict as to the criminal attempt to commit rape count.

      Although Smith uses the term “repugnant” to describe the verdict, his argument

shows that he actually is challenging the verdict as inconsistent, as he relies on the

definition of an inconsistent verdict. “[A]n inconsistent verdict involves an alleged

inconsistency between guilty and not guilty verdicts against a defendant [on entirely

separate offenses]. . . that cannot be logically reconciled.” Carter v. State, 298 Ga.

867, 868-69 (785 SE2d 274) (2016). The inconsistent verdict rule was abolished by

our Supreme Court in Milam v. State, 255 Ga. 560 (2) (341 SE2d 216) (1986). Id. at

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868. Thus, “a defendant cannot attack as inconsistent a jury verdict of guilty on one

count and not guilty on a different count as a legitimate means of having his . . .

conviction reversed.” Id. (citation and punctuation omitted). As our Supreme Court

emphasized in Carter,

      [t]his is the case because it is not generally within the court’s power to
      make inquiries into the jury’s deliberations, or to speculate about the
      reasons for any inconsistency between guilty and not guilty verdicts.
      Appellate courts cannot know and should not speculate why a jury
      acquitted on one offense and convicted on another offense. The reason
      could be an error by the jury in its consideration or it could be mistake,
      compromise, or lenity. Stated another way, it is imprudent and
      unworkable to allow criminal defendants to challenge inconsistent
      verdicts on the ground that in their case the verdict was not the product
      of lenity, but of some error that worked against them. Such an
      individualized assessment of the reason for the inconsistency would be
      based either on pure speculation, or would require inquiries into the
      jury’s deliberations that the courts generally will not undertake.


Id. (citations, punctuation, and footnotes omitted); see also Sanders v. State, 245 Ga.

App. 561, 564 (2) (538 SE2d 470) (2000) (“In Georgia, consistency in the verdict is

not necessary, and every count of an indictment is regarded as if it is a separate

indictment. Thus even if the verdicts are inconsistent, reversal is not required.”)



                                          5
(footnote omitted). Accordingly, Smith’s inconsistent verdict challenge is without

merit.

         Alternatively, to the extent that Smith asserts that the verdict is repugnant

because it involves a finding of guilt and an acquittal on the same offense based on

the same set of facts, that argument also fails. In Wiley v. State, 124 Ga. App. 654,

655-66 (185 SE2d 582) (1971), we identified a repugnant verdict as one that involved

a finding of guilt and an acquittal on the same offense based on the same set of facts.1

However, we have since overruled Wiley and its progeny in an en banc decision.

Blevins v. State, 343 Ga. App. 539, 550 (4) (808 SE2d 740) (2017). In doing so, we

noted that Wiley was an “outlier” and determined that the reasoning set forth in Milam

for abolishing the inconsistent verdict rule in criminal cases also applied to repugnant

verdicts as defined in Wiley. Blevins, 343 Ga. App. at 550 (4). Thus, Smith’s

repugnant verdict claim is foreclosed by our decision in Blevins.




         1
        We have also defined “[a] repugnant or mutually exclusive verdict [as] one in
which the jury, in order to find the defendant guilty on both counts, necessarily
reached two positive findings of fact that cannot logically mutually exist.” Carter v.
State, 331 Ga. App. 212, 217 (3) (770 SE2d 295) (2015) (emphasis supplied) (citation
and punctuation omitted). However, because there were not two findings of guilt in
this case, we conclude Smith is not relying on this definition.

                                           6
      Notwithstanding the above, we note that Smith was not acquitted and convicted

of the same offense. Although Smith was charged with using a gun and a box cutter

to commit both the aggravated assaults and the criminal attempt to commit rape,

aggravated assault and criminal attempt to commit rape are separate, distinct offenses

that consist of different elements. Specifically, “[a]ggravated assault has two essential

elements: (1) an attempt to commit a violent injury, or an act that places another in

reasonable apprehension thereof, and (2) that the assault was aggravated by either (a)

an intention to murder, rape, or rob, or (b) the use of a deadly weapon.” State v.

Daniels, 281 Ga. App. 224, 225-26 (1) (635 SE2d 835) (2006) (emphasis and

footnote omitted). On the other hand, “[a] criminal attempt consists of three elements:

(1) an intent to commit the specific crime; (2) performance of a substantial act toward

committing the crime; and (3) failure to consummate the crime.” Brewster v. State,

261 Ga. App. 795, 798 (1) (d) (584 SE2d 66) (2003) (footnote omitted). “A person

commits the offense of rape when he has carnal knowledge of (1) a female forcibly

against her will; or (2) a female who is less than ten years of age.” OCGA § 16-6-1.

Thus, there were two different offenses upon which the jury was free to find Smith

guilty or not guilty based on the facts of the case as interpreted by the jury. The jury

was entitled to resolve conflicts in the testimony and to draw all reasonable inferences

                                           7
from the evidence. Murphy v. State, 333 Ga. App. 722, 724 (776 SE2d 657) (2015)

(“It is the duty of the jury, not this Court, to resolve conflicts in the testimony, weigh

the evidence, and draw reasonable inferences from the evidence.”) (citation and

punctuation omitted). Based on the evidence presented, the jury could have

reasonably inferred that Smith used the weapons in an effort to rape the victim, but

that Smith did not use the weapons to commit aggravated assault against the victim.

Regardless, we “cannot know and should not speculate why a jury acquitted on one

offense and convicted on another offense.” Turner v. State, 283 Ga. at 20 (2) (655 SE

2d 589) (2008) (citations and punctuation omitted).

      Moreover, the evidence was legally sufficient to uphold the guilty verdict of

criminal attempt to commit rape. The State indicted Smith for criminal attempt to

commit rape, charging that Smith “did threaten [the victim] with a gun and boxcutter,

forced her to take her pants off, and took his own pants off, acts which constitute a

substantial step toward the commission of said crime.” The victim testified that Smith

broke into her hotel room and was armed with both a box cutter and a gun. He forced

her to remove her clothes against her will, placed his fingers inside her vagina, and

removed his pants before being interrupted by a knock at the door. Additionally, the

officer who interrupted the crime testified that he observed Smith’s pants were

                                            8
undone when Smith came to the door and that the victim was naked behind Smith,

and mouthed the words “help me.” A search of the room revealed a box cutter-style

knife, a holster for a gun, condoms, lubrication, and male enhancement pills.

Accordingly, the evidence was sufficient for the jury to conclude that Smith broke

into the hotel room intending to rape the victim and that he took one or more

substantial steps towards committing that crime. See Taylor v. State, 327 Ga. App.

288, 288 (1) (758 SE2d 629) (2014) (“As long as there is some competent evidence,

even though contradicted, to support each fact necessary to make out the state’s case,

the jury’s verdict will be upheld.”) (citation and punctuation omitted).

      2. Smith argues that his trial counsel rendered constitutionally ineffective

assistance when he failed to move to set aside Smith’s criminal attempt to commit

rape conviction on the grounds that the verdict was repugnant in light of Smith’s

acquittal on the aggravated assault counts. We disagree.

      To make a successful claim of ineffective assistance of counsel, a defendant

must show both that his counsel’s performance was deficient, and there is a

reasonable probability that, but for the deficiency, the outcome of the proceeding

would have been different. Strickland v. Washington, 466 U. S. 668, 687 (104 SCt

2052, 80 LEd2d 674) (1984); Thomas v. State, 318 Ga. App. 849, 857 (5) (734 SE2d

                                          9
823) (2012). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Thomas, 318 Ga. App. at 857 (5) (citation and

punctuation omitted). We accept the trial court’s findings of fact and credibility

determinations unless clearly erroneous, but we review its legal conclusions de novo.

Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

      In light of our determination in Division 1, Smith cannot show that his trial

counsel’s performance was deficient or that he was prejudiced by his counsel’s failure

to move to set aside Smith’s conviction for criminal attempt to commit rape on the

ground that the verdict was repugnant. Strickland, 466 U.S. at 687; see also Murray

v. State, 306 Ga. App. 106, 109 (701 SE2d 579) (2010) (“Failure to pursue a meritless

motion does not amount to ineffective assistance.”) (footnote omitted).

      Accordingly, for the reasons set forth above, we affirm.

      Judgment affirmed. Coomer and Hodges, JJ., concur.




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