FIRST DIVISION
BARNES, P. J.,
GOBEIL and PIPKIN, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
October 28, 2020
In the Court of Appeals of Georgia
A20A1079. SPIRES v. THE STATE.
PIPKIN, Judge.
Appellant Steven Spires was convicted of aggravated child molestation, incest,
sexual exploitation of children, and three counts of child molestation. On appeal,
Spires contends that the evidence was insufficient to sustain his convictions, that the
courtroom was improperly closed during two portions of his trial, that the trial court
erred in permitting the State to adduce certain testimony, and that there are merger
errors. Finding no reversible error, we affirm.
The victim, B. S., is Spires’ biological daughter. B. S. moved in with Spires
and his wife when she was approximately eight years old. B. S. testified that her
father began having sexual intercourse with her when she was ten years old and that
it occurred approximately every day until she moved back in with her mother when
she was approximately twelve years old; she also testified that she performed oral sex
on Spires, though she did not know how many times. B. S. testified that, while she
was living with him, Spires bought her lingerie; she also testified that he bought her
a smart cellular telephone and that he used this device to record the pair engaging in
sexual acts. Although B. S. tried to delete the videos when she moved back in with
her mother, the videos were recovered from the device by a concerned family member
and then by law enforcement. The videos depict B. S. performing oral sex on and
engaging in vaginal intercourse with an adult male. While the man’s face cannot be
seen, B. S. identified the man in the video as her father. Further, various features in
the video match the master bedroom of Spires’ residence in Spalding County,
Georgia; a search of Spires’ bedroom revealed underwear and lingerie matching that
which is worn in the video by B. S. and the faceless man. Additionally, certain
markings on Spires’ hand match those seen on the male depicted in the video.
Following the discovery of their sexual relationship, Spires took B. S. from her
mother’s residence and “ran away” with her. An Amber Alert was issued for B. S.,
and Spires had B. S. call a local news station to report that she had run away on her
own and that her father had not hurt her. B. S. testified that, during this time, Spires
continued to have sex with her. The jury also heard from Spires’ former girlfriend
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who stayed with Spires and B. S. in a hotel room while they were on the run. She
testified that Spires advised her that he would be sharing a bed with B. S. and that B.
S. usually slept in only a bra and underwear; she further testified that Spires and B.
S. shared a bed in the hotel room. Spires and B. S. were eventually discovered in a
hotel room in Henry County, Georgia. Spires was taken into custody, but was released
on bond on the condition that he have no contact with B. S. Shortly after his release,
however, Spires took B. S. from a group home in metro Atlanta. Spires had B. S. alter
her appearance and change her name, but the pair were found approximately ten days
later.
The State also presented witnesses concerning Spires’ two prior convictions
for misdemeanor statutory rape. The jury first heard from K. C. who testified that she
encountered Spires in an AOL chat room in 2000 when she was 13 years old and he
was 16-17 years old; the pair eventually met in person. K. C. testified that, at Spires’
request, she made a video recording of herself masturbating and gave it to him; she
told the jury that, at some point, he also made a video recording of her masturbating.
According to K. C., her father discovered one of the recordings and forbade her from
seeing Spires; however, the two continued to communicate, and Spires convinced her
to “run away” with him. K. C. testified that Spires kept her secluded in a tent in the
3
woods near his family’s house where the pair engaged in sexual activity and that
Spires pressured her for oral sex. K. C. explained that she wanted to leave but was
afraid of Spires, who could become violent. Eventually, K. C. was returned home
after law enforcement became involved. Spires subsequently pled guilty to
misdemeanor statutory rape involving K. C., and the State tendered a certified copy
of that September 2008 conviction.
B. K. testified that she encountered Spires in a Walmart parking lot while out
with a friend in January 2003; she was 15 years old at the time, and Spires was 18
years old. On her second date with Spires, he persuaded her to have sexual
intercourse in the back of an SUV; at a later date, the pair engaged in sexual
intercourse in a camper. B. K. also testified that Spires tried to convince her to make
a video recording of their sexual activity, but she refused. Spires subsequently pled
guilty to misdemeanor statutory rape involving B. K., and the State tendered a
certified copy of that August 2008 conviction.
The jury also heard from an inmate with whom Spires shared a cell during his
pre-trial detention. According to the inmate, Spires discussed the charges against him
at length, and identified the victim as his biological daughter. The inmate testified
that Spires admitted to using his finger to penetrate B. S.’s vagina when he first
4
started abusing her and that Spires also described a beach vacation during which the
pair engaged in sexual activity. The State adduced photographs of Spires and B. S.
at the beach; the photographs depict, among other things, B. S. wearing a two-piece
bathing suit covered by a t-shirt, which Spires’ cellmate had described from his
conversations with Spires.
Finally, the jury heard from witnesses called by the defense. Spires’ ex-wife,
Julie, opined that the man in the video was not her former husband, but she
acknowledged that facets of the relationship between B. S. and Spires were unusual.
She testified that B. S. would call Spires by his first name and that, if there was any
display of physical affection between herself and Spires, B. S. would get aggressive
and jealous. Finally, Spires testified on his on behalf. He acknowledged having “run
off” with B. S. and having discussed the case with his cellmate, but he denied having
had any sexual contact with B. S.
1. Spires first argues that the evidence was insufficient to sustain his
convictions for aggravated child molestation and two counts of child molestation. We
disagree.
In addressing these claims, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
5
have found the essential elements of the crime beyond a reasonable doubt.” (Citation
and emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61
LE2d 560) (1979). This Court neither weighs the evidence nor resolves issues of
witness credibility. Shepherd v. State, 353 Ga. App. 228, 228 (836 SE2d 221) (2019).
With these principles in mind, we look to each of Spires’ claims.
(a) The first count of the indictment charges Spires with aggravated child
molestation, see OCGA § 16-6-4 (c), alleging that Spires “did commit an indecent act
to [B. S.], a child under the age of 16 years, involving the sexual organs of the
accused and the mouth of said child, with the intent to arouse the sexual desires of
himself by placing the child’s mouth on [] his penis.” (Emphasis supplied.) Spires
contends that the averment “placing the child’s mouth on his penis” was an essential
element of the charged offense but that there was no such corresponding evidence
presented at trial. Instead, Spires says that the evidence tended to show that B. S. “did
place her mouth on the penis of the accused,” and, thus, that the State’s evidence
failed to prove the offense as alleged in Count 1 of the indictment. To be clear, Spires
is not arguing that there was insufficient evidence of oral sodomy, but instead, he
contends that the oral sodomy was not established as it was alleged in the indictment;
Spires’ enumeration, then, is a fatal variance claim. See Brown v. State, 307 Ga. 24,
6
28 (1) (834 SE2d 40) (2019) (a fatal variance claim asserts that there is “a deviation
between the allegations in the indictment and the evidence adduced at trial”). Because
Spires did not raise a fatal variance claim before the trial court, this argument is
waived on appeal. See Thompson v. State, 324 Ga. App. 20, 21 (749 SE2d 27) (2013)
(“Thompson did not raise his fatal variance argument in the trial court and has
therefore waived the issue for consideration on appeal.”).
To the extent Spires challenges the sufficiency of the evidence, ample evidence
authorized Spires’ conviction. B. S. testified that Spires would “have [her] perform
. . . oral sex with him,” that she could not recall how many times she had performed
oral sex on him, and the video depicting B. S. performing oral sex on Spires shows
Spires touching his hand to B. S.’s head. Thus, the jury could have reasonably
concluded that Spires placed B. S.’s mouth on his penis as alleged in Count 1 of the
indictment.
(b) Spires next argues that the evidence was insufficient to sustain his
convictions for two counts of child molestation, specifically, Counts 7 and 11. Count
7 charged that Spires “did commit an indecent act to [B. S.], a child under the age of
16 years, with the intent to arouse the sexual desires of himself by touching, grabbing,
and squeezing [B. S.’s] buttocks during explicit conduct.” Count 11 charged that
7
Spires “did commit an indecent act to [B. S. ], a child under 16 years, with the intent
to arouse the sexual desire of himself by touching the vagina of [B. S.].” According
to Spires, B. S.’s testimony does not support either conviction and, he says, “the
record is devoid of other evidence that supports the convictions for the[se] acts.” This
argument focuses on B. S.’s testimony and ignores other evidence adduced at trial.
Specifically, the cell-phone recordings depicting B. S. and Spires engaged in sexual
activity show Spires grabbing B. S.’s buttocks and show him touching her vagina;
further, Spires admitted to his cellmate before trial that he had digitally penetrated B.
S.’s vagina when he first started abusing her. Accordingly, this argument is without
merit.
2. The trial court closed the courtroom when B. S. testified and then again
during deliberations when the jury asked to re-watch the videos depicting the sexual
abuse. Spires argues on appeal that the trial court erred in this regard. We address
each instance of courtroom closure in turn.
(a) During a pre-trial hearing, the State made a motion under OCGA § 17-8-54
to have the courtroom closed while B. S. testified. In response, Spires speculated that
the trial court had little discretion under the statute, but objected on the basis that his
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trial was a “public forum.”1 The trial court did not immediately rule on the motion
but, instead, took the matter under advisement. At the start of trial two weeks later,
the trial court announced its decision to close the courtroom during B. S.’s trial
testimony. Spires now argues that the trial court failed to properly weigh the
competing interests in closing the courtroom and that this failing violated his Sixth
Amendment right to a public trial. Spires’ claim is without merit.
The relevant statutory provision provides as follows:
In the trial of any criminal case, when any person under the age of 16 is
testifying concerning any sexual offense, the court shall clear the
courtroom of all persons except parties to the cause and their immediate
families or guardians, attorneys and their secretaries, officers of the
court, victim assistance coordinators, victims’ advocates, and such other
victim assistance personnel as provided for by Code Section 15-18-14.2,
jurors, newspaper reporters or broadcasters, and court reporters.
OCGA § 17-8-54. As we have said before, OCGA § 17-8-54 is “based upon a
legislative determination that there is a compelling state interest in protecting children
while they are testifying concerning a sex offense.” (Citation omitted.) Hunt v. State,
1
Spires objected to “the code section [as] written. If somebody’s testifying, this
is a public forum. And to bring charges, you have to face the accuser and everyone
else.”
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268 Ga. App. 568, 571 (1) (602 SE2d 312) (2004). In this case, the partial closure of
the courtroom – which allowed members of the press, among others, to remain in the
courtroom – was permitted under this code section and did not violate Spires’
constitutional right to a public trial. See Tolbert v. State, 321 Ga. App. 637, 637 (1)
(742 SE2d 152) (2013); see also Clark v. State, 309 Ga. App. 749, 751 (2) (711 SE2d
339) (2011); Goldstein v. State, 283 Ga. App. 1, 3-4 (2) (640 SE2d 599) (2006).
Compare Jackson v. State, 339 Ga. App. 313, 314 (793 SE2d 201) (2016) (reversal
required for complete courtroom closure during testimony of witness who was 16
years old at the time of trial).
(b) While OCGA § 17-8-54 may have justified the partial closure of the
courtroom during B. S.’s testimony, it is inapplicable to the trial court’s closure of the
courtroom while the jury re-watched the sexual-abuse videos during its deliberations.
However, the trial court twice announced its intention to close the courtroom while
the video was played for the jury, and Spires did not object in either instance. In fact,
Spires appears to have acquiesced to the trial court’s decision to bring the jury back
into the courtroom to re-watch the video with the courtroom closed. Accordingly, this
argument is waived. See Tolbert, 321 Ga. App. at 638.
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3. As referenced above, the State adduced testimony and evidence pursuant to
OCGA § 24-4-413 concerning Spires’ prior convictions for misdemeanor statutory
rape. On appeal, Spires argues that the prior-conviction evidence was “substantially
more prejudicial than probative and [was] employed improperly by the State as ‘bad
character’ evidence.” This argument is without merit.
OCGA § 24-4-413, provides that “[i]n 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.” The term “sexual
assault” as used in this provision includes statutory rape. See OCGA § 24-4-413 (d)
(1). OCGA § 24-4-413 is a “rule of inclusion” and provides a strong presumption in
favor of admissibility by expressly providing that such evidence “shall be admissible”
where it is relevant. McAllister v. State, 351 Ga. App. 76, 80 (1) (830 SE2d 443)
(2019). Thus, “the State can seek to admit evidence under this provision for any
relevant purpose.” Benning v. State, 344 Ga. App. 397, 401 (810 SE2d 310) (2018).
As our Evidence Code explains, “‘relevant evidence’ means evidence having any
tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence.”
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OCGA § 24-4-401. That being said, “[r]elevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.” OCGA § 24-4-403.
We will reverse a trial court’s ruling to admit evidence of prior sexual assaults only
where there is a clear abuse of discretion. See Steele v. State, 337 Ga. App. 562, 565-
566 (3) (788 SE2d 145) (2016).
Here, the State moved to admit the prior-conviction evidence on the basis that
it was relevant to show intent, motive, identity, and knowledge, and the trial court
agreed. The court reasoned that, although the prior convictions occurred years before
the abuse in this case and involved victims who were a few years older than B. S., the
prior convictions demonstrated Spires’ interest in and history of video recording his
sexual acts. This evidence was relevant to, among other things, determining the
identity of the man in the recordings with B. S. The trial court also concluded that any
probative value was not substantially outweighed by the prejudicial nature of the
evidence. This ruling is sound.
Spires denied being the man in the videos with B. S., and his identity as that
man was squarely at issue during trial. Accordingly, the testimony of B. K. and K. C.
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– which included references to Spires’ video recording sex acts – was relevant to the
issue of identity. Under these circumstances, we cannot say that the trial court abused
its discretion in concluding that the probative value of the evidence outweighed any
prejudicial effect. Although Spires contends that the evidence does not pass muster
under Rule 403, exclusion of evidence under that rule “is an extraordinary remedy
which should be used only sparingly.” (Citation and punctuation omitted.) Olds v.
State, 299 Ga. 65, 70 (2) (786 SE2d 633) (2016). Indeed, the rule is designed “to
exclude matter of scant or cumulative probative force, dragged in by the heels for the
sake of its prejudicial effect.” (Citation and punctuation omitted.) Carter v. State, 302
Ga. 200, 203 (2) (a) (805 SE2d 839) (2017). Here, the prior convictions were relevant
and had substantial probative value; they certainly were not introduced solely for their
unfair prejudicial impact. Id.
4. After Spires elected to testify in his own defense, the State impeached him
on cross-examination with a 2009 conviction for aggravated assault (family violence),
see OCGA § 16-5-21 (i). The State tendered the certified conviction and then
explored the factual basis of the conviction with Spires, eliciting testimony that the
offense involved him beating the victim in that case and attempting to shove a
flashlight in her vagina. Spires argues on appeal that the trial court erred in permitting
13
the State to use this conviction to impeach him, in permitting the State to question
him about the factual basis of the conviction, and in failing to provide a limiting
instruction concerning the impeachment evidence. There is no reversible error.
“For the purpose of attacking the character for truthfulness of a witness . . .
evidence that an accused has been convicted of [a felony] shall be admitted if the
court determines that the probative value of admitting the evidence outweighs its
prejudicial effect to the accused[.]” OCGA § 24-6-609 (a) (1). Evidence of a prior
felony conviction “is intended to afford the jury a basis to infer that the witness’s
character is such that he would be less likely than the average trustworthy citizen to
be truthful in his testimony.” (Citation and punctuation omitted.) Smith v. State, 331
Ga. App. 296, 299 (2) (771 SE2d 8) (2015). “The introduction of evidence of a prior
crime is thus a general attack on the credibility of the witness.” (Citation and
punctuation omitted.) Robinson v. State, 336 Ga. App. 627, 631 (3) (785 SE2d 304)
(2016).
Generally, we review a trial court’s decision for abuse of discretion, Robinson,
336 Ga. App. at 627, but, as Spires acknowledges in his brief, he did not offer a
timely objection to this evidence or the trial court’s failure to issue a limiting
14
instruction; accordingly, we review this enumeration for plain error only. See OCGA
§ 24-1-103 (d). That now-familiar standard provides as follows:
First, there must be an error or defect – some sort of deviation from a
legal rule – that has not been intentionally relinquished or abandoned,
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.
(Citation, punctuation, and emphasis omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a)
(718 SE2d 232) (2011). “Satisfying all four prongs of this standard is difficult, as it
should be.” (Citation and punctuation omitted). Id.
Spires argues that the trial court erred in admitting the prior felony conviction
without first determining “that the probative value of admitting the evidence
outweighs its prejudicial effect to the accused[.]” OCGA § 24-6-609 (a) (1). He
further argues that the trial court erred when it permitted the State to inquire as to the
factual basis of that conviction. However, Spires has affirmatively waived these
15
arguments. Before he opted to testify, the State announced on the record that it
intended to impeach Spires with the aggravated assault conviction, to have that
conviction admitted into evidence, and to cross-examine Spires on the factual basis
of that conviction. The trial court instructed trial counsel to advise Spires of this tactic
and to have him consider it when deciding whether to testify, to which counsel
replied, “Yes, sir.” During Spires subsequent cross-examination, trial counsel
responded that he had no objection to the admission of the prior conviction; the State
then explored the factual basis of the conviction, and trial counsel offered no
immediate objection.
Although twice presented with the opportunity to challenge the State’s tactics,
Spires did not; in fact, in both instances, Spires acknowledged the State’s intended
course. Accordingly, Spires is not entitled to plain-error review on these arguments.
See McAllister v. State, 351 Ga. App. 76, 88 (3) (830 SE2d 443) (2019) (defendant
affirmatively waived any objection to introduction of prior felony conviction where
he affirmatively stated during trial that he had “no objection” to its admission). Even
if Spires has not affirmatively waived this claim, he is not entitled to a reversal given
the strength of the evidence and the fact that the jury was properly instructed on the
evidentiary value of Spires’ prior convictions.
16
Here, the jury reviewed video depicting B. S. engaging in sexual acts; B. S.
identified her father as being in the video; the clothing worn by B. S. and the faceless
man were found in Spires’ bedroom; certain markings on the man’s hand match those
on Spires’ hand; the room depicted in the video matches Spires’ bedroom; Spires
twice “ran off” with B. S. and maintained contact with her despite being ordered not
to; Spires’ girlfriend testified that Spires and B. S. shared a bed in the hotel room; and
Spires’ pre-trial cellmate testified to various admissions made by Spires while he was
awaiting trial. Moreover, the jury had already learned that Spires had pleaded guilty
to two other sex crimes and had a history of being “violent” with other victims. Also,
Spires acknowledged during direct-examination that he had various criminal
convictions, and the trial court twice charged the jury that Spires was “on trial for the
offenses charged in [the] indictment only and not for any other acts.” Although
testimony of the aggravated assault conviction brought forth some concerning details
– namely, that Spires had been accused of attempting to shove a flashlight into the
vagina of the victim in that case – in light of the strength of the evidence against
Spires, he has not demonstrated that the admission of this evidence “probably did
affect the outcome below,” (citation and punctuation omitted) Gates v. State, 298 Ga.
324, 327 (3) (781 SE2d 772) (2016), which must be established with “some level of
17
certainty and particularity,” (citation and punctuation omitted) Davis v. State, 302 Ga.
576, 582 (3) (805 SE2d 859) (2017).2 Accordingly, Spires is not entitled to relief. See
Chitwood v. State, 352 Ga. App. 218, 226 (3) (b) (834 SE2d 334) (2019) (no plain
error arising out of testimony concerning prior bad act where evidence of assault and
sexual abuse were overwhelming).
5. Spires next argues that Counts 7 and Counts 11, which allege child
molestation arising out of Spires touching B. S. on her buttocks and vagina,
respectively, must merge into Counts 1 or 6, which allege aggravated child
molestation and child molestation arising out of oral sodomy and sexual intercourse,
respectively, because, he says, the evidence “shows that these acts were an intrinsic
part and parcel of the acts and conduct that supported the convictions for these other
alleged offenses.” This argument, however, is premised on a fundamental
2
Our conclusion that any error here does not raise to the level of plain error
also disposes of any claim that trial counsel was ineffective for failing to object to the
admission and treatment of the aggravated assault conviction. See Hampton v. State,
302 Ga. 166, 172 (4) (b) (805 SE2d 902) (2017) (“[F]or the same reasons that we
concluded that appellant could not carry his burden to show prejudice on plain error
review . . . we conclude that he cannot carry his burden to show prejudice on this
ineffectiveness claim.”); see also Williams v. State, 304 Ga. 455, 460 n.4 (818 SE2d
653) (2018) (“[T]he test for harm under plain error review is equivalent to the test in
ineffective assistance of counsel cases for whether an attorney’s deficient
performance has resulted in prejudice of constitutional proportions.”) (punctuation
and citation omitted).
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misrepresentation of the evidence, namely, that the two videos depict the sole
instances of sexual acts between B. S. and Spires. This is inaccurate; this is not a case
in which the sexual acts alleged in the different counts were part of a single course
of conduct occurring over a relatively short time frame. Instead, the indictment
alleged that the various sexual contact occurred over an extended period of time; B.
S. testified that the sexual abuse occurred daily, including the time that she and Spires
had “run away” together, and that she could not recall the number of times that she
had performed oral sex on Spires. Given the manner in which the offenses were
indicted and the extensive testimony showing that the charged offenses occurred on
numerous different occasions, this argument is without merit. See Watkins v. State,
336 Ga. App. 145, 151 (4) (784 SE2d 11) (2016) (“Because each count of the
indictment charged [Appellant] with a separate and distinct crime, his convictions for
those crimes did not merge for purposes of sentencing.”). Compare Scott v. State, 306
Ga. 507, 509-510 (2) (832 SE2d 426) (2019) (recognizing that the unit-of-prosecution
analysis is necessary where multiple convictions for sexual abuse stem from a single,
uninterrupted course of conduct).
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6. Finally, Spires argues that trial counsel was ineffective for failing to object
to three search warrant affidavits being introduced and shown to the jury.3 This claim
is without merit.
In order to succeed on his claim that trial counsel was ineffective, Spires must
demonstrate both that his trial counsel’s performance was deficient and that he
suffered prejudice as a result of counsel’s deficient performance. Strickland v.
Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). “To prove
deficient performance, [Spires] must show that his lawyer performed at trial in an
3
After Spires was convicted, trial counsel withdrew; Spires retained new
counsel, who filed an amended motion for new trial and represented Spires at the
subsequent hearing. After the hearing but before the trial court entered its written
order, new counsel was permitted to withdraw. The trial court then appointed
appellate counsel to represent Spires, and, two months later, the trial court issued a
written order denying Spires’ amended motion for new trial. Appellate counsel has
moved this court to remand this appeal to permit Spires to raise an additional claim
of ineffective assistance of trial counsel. However, because Spires retained new
counsel after his trial, he had ample opportunity to raise any claim pertaining to the
effectiveness of trial counsel in his amended motion for new trial; this is not the first
opportunity at which Spires could have raised a claim that trial counsel was
ineffective and, thus, he is not entitled to a remand. Cf. Reado-Seck v. State, 346 Ga.
App. 381 (816 SE2d 355) (2018) (“In general, when an appeal presents the earliest
practicable opportunity to raise an ineffective-assistance-of-counsel claim, we will
remand the case to the trial court for an evidentiary hearing on the issue[.]”). Further,
nothing in the record suggests that the trial court was asked to delay its ruling or to
re-open the motion for new trial proceedings as a result of the appointment of
appellate counsel. Accordingly, we deny Spires’ motion to remand.
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objectively unreasonable way considering all the circumstances and in the light of
prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637)
(2013). As to prejudice, Spires must establish that “the deficient performance
prejudiced the defense, which requires showing that counsel’s errors were so serious
that they likely affected the outcome of the trial.” Jones v. State, 305 Ga. 750, 755 (4)
(827 SE2d 879) (2019).
Although trial counsel testified at the hearing on Spires’ motion for new trial,
he did not testify concerning the admission of the warrant affidavits. “Absent
evidence to the contrary, the decision not to object to certain evidence is presumed
strategic and provides no basis for an ineffective assistance claim.” Glass v. State,
255 Ga. App. 390, 403-404 (10) (g) (565 SE2d 500) (2002). Trial counsel’s silence
aside, it appears that the substance of the affidavits was actually useful to the defense.
Two of the affidavits reinforce the fact that the deleted videos were not found
pursuant to a police investigation but, instead, were recovered by B. S.’s maternal
uncle – who resides in California and was mailed the phone – in the middle of a
custody dispute between Spires and B. S.’s mother. The third affidavit plainly
highlights that B. S. initially denied that she had engaged in any sexual activity with
anyone and that, when confronted with the video evidence, she said the video
21
depicted an unknown 13-year-old friend. The affidavits highlighted key points for the
defense – namely that the discovery of the videos was suspect and that B. S. was not
credible – which trial counsel touched on during closing argument. In light of this,
we cannot say that trial counsel’s failure to object to the admission of the affidavits
was so patently unreasonable that no competent attorney would have chosen the same
path. See Branscomb v. State, 272 Ga. App. 700, 701 (2) (613 SE2d 222) (2005) (trial
counsel not ineffective for failing to object to the jury being provided with search
warrant affidavits where the affidavits revealed a weakness in the State’s case).
Accordingly, Spires is not entitled to a new trial on this basis.
Judgment affirmed. Barnes, P. J., and Gobeil, J., concur.
22