Rainey v. the State

WHOLE COURT

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

July 13, 2016

In the Court of Appeals of Georgia
A16A0675. RAINEY v. THE STATE.

RICKMAN, Judge.

Henry Rainey appeals his conviction for criminal attempt to commit armed

robbery. Rainey contends, among other things, that the evidence was insufficient to

support his conviction. We agree and reverse.

On appeal, “[w]e view the evidence . . . in the light most favorable to the

verdict and no longer presume the defendant is innocent. We do not weigh the

evidence or decide the witnesses’ credibility but only determine if the evidence is

sufficient to sustain the convictions.” (Citation omitted.) Hill v. State, 243 Ga. App.

614 (533 SE2d 779) (2000); see Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61

LE2d 560) (1979).
So viewed, the evidence showed that an employee of an auto care store noticed

a vehicle with an obscured license plate parked in an unusual location in the parking

lot. The employee observed Rainey inside the vehicle talking on his cell phone and

wearing a surgical mask. The employee watched Rainey exit his vehicle wearing the

mask, a hooded sweatshirt with the hood pulled up, and a hat. He then observed

Rainey walking a short distance towards a CVS Pharmacy, which was also near two

banks. A manager of the auto care store1 called 911 and reported his concern that

Rainey may rob the store.2

A CVS employee saw Rainey come into the store. He testified that Rainey

walked around the store for four to five minutes and then inquired about the price of

cigarettes, which the employee felt was “strange” because the prices were listed, but

also testified that he was never in any fear or danger. The employee testified that

Rainey entered the CVS store twice.

A sergeant with the Cherokee County Sheriff’s Office responded to the 911 call

and went to the location of Rainey’s vehicle. The sergeant saw Rainey walking

1
Neither the auto care store nor any employee thereof are named victims in the
indictment.
2
One employee purportedly retrieved his weapon because the situation made
him feel “uncomfortable.”

2
towards his vehicle but did not observe him wearing a mask. The sergeant testified

that Rainey appeared to throw something inside his vehicle, although he admittedly

could not see exactly what Rainey was doing.

Upon questioning from the sergeant, Rainey stated that he was waiting for his

daughter. The sergeant observed that Rainey’s license plate was obscured by an

insurance bill secured by medical tape, which Rainey speculated may have been taped

onto his car by his daughter to remind him to pay his bill. Rainey’s daughter testified

that she did not tape the insurance bill on the license plate of the vehicle and that she

was not planning on meeting her father.

As the sergeant was questioning him, Rainey offered for the sergeant to “look

inside if you want,” to which the sergeant followed up with, “[y]ou don’t mind if I

look throughout the vehicle?” and Rainey responded, “No.” The sergeant found a

surgical mask, medical tape, and a police scanner in the vehicle. He also located a

checkbook on the floor of the vehicle, leaning against the driver’s seat. After

searching inside the checkbook, the officer found a note reading, “I have a gun and

there is one outside listening to a police scanner so no alarm put $2000.00 in the

check book and be fast.” A second note was found written on the plastic sleeve of the

checkbook, which was essentially the same as the first except that it omitted the

3
language referencing the police scanner. A deputy on the scene thereafter conducted

a patdown search of Rainey, but no weapons were located on him or in his vehicle.

The grand jury returned an indictment charging Rainey with criminal attempt

to commit armed robbery and criminal attempt to commit robbery. After a jury trial,

Rainey was found guilty of criminal attempt to commit armed robbery. It is from this

conviction that Rainey now appeals.

1. Rainey contends that the evidence was insufficient to support his conviction.

Specifically, Rainey argues that the evidence showed mere preparation and not a

substantial step towards the commission of an armed robbery.

Pursuant to OCGA § 16-4-1, “A person commits the offense of criminal

attempt when, with intent to commit a specific crime, he performs any act which

constitutes a substantial step toward the commission of that crime.” And OCGA § 16-

8-41 (a) provides,

A person commits the offense of armed robbery when, with intent to
commit theft, he or she takes property of another from the person or the
immediate presence of another by use of an offensive weapon, or any
replica, article, or device having the appearance of such weapon. The
offense of robbery by intimidation shall be a lesser included offense in
the offense of armed robbery.

4
Under Georgia law, “[i]n order to constitute the offense of attempt to commit

a crime, the accused must do some act toward its commission.” (Punctuation omitted.)

Groves v. State, 116 Ga. 516 (42 SE 755) (1902); see OCGA § 16-4-1.

‘Commission’ means the act of committing, doing, or performing the act
of perpetrating . . . Mere acts of preparation, not proximately leading to
the consummation of the intended crime, will not suffice to establish an
attempt to commit it. . . . Between the preparation for the attempt, and
the attempt itself, there is a wide difference. The preparation consists in
devising or arranging the means or measures necessary for the
commission of the offense. The attempt is the direct movement towards
the commission after the preparations are made. . . . Procuring or loading
a gun, or buying poison, or walking to a particular place, with intent to
kill another, is not enough to make one guilty of an attempt to commit
murder. The same is true of a purchase of coal oil and matches with
intent to commit arson, or the procuring of metal and dies with intent to
commit the offense of counterfeiting money. These acts are mere
preparations, indifferent in their character, and do not advance the
conduct of the party far enough to constitute an attempt.

(Citations and punctuation omitted.) Groves, 116 Ga. at 516-517.

In this case, the evidence presented supports a finding that Rainey performed

certain acts in preparation for an armed robbery. Arguably, it may even support a

5
conviction of criminal attempt to commit robbery.3 That is not the same, however, as

supporting a finding that Rainey took a substantial step towards the commission of

an armed robbery. See id.

Rainey’s actions in obscuring his license plate and being in possession of the

notes, surgical mask, and police scanner –in the absence of any evidence that he was

in possession of a weapon or device having the appearance of a weapon, and in the

absence of evidence that he showed anyone the notes –were merely preparatory acts

and do not amount to an attempt to commit the crime of armed robbery. See Groves,

116 Ga. at 518 (“We think it manifest that the hiring of the hack, the ascertaining of

the fact that the intended victim had no weapons, and the procuring of the false faces

for disguise, were merely preparatory acts, and not proximately leading to the

consummation of the crime of robbery[.]”); see also Thurman v. State, 295 Ga. App.

616, 619 (1) (673 SE2d 1) (2008) (physical precedent only) (defendants’ possession

of materials used in the manufacture of methamphetamine constituted mere

preparation to commit the crime); Smith v. State, 156 Ga. App. 695, 696 (275 SE2d

689) (1980) (evidence that the defendant’s girlfriend passed hacksaw blades to him

3
See OCGA § 16-8-40 (a); see also Heard v. State, 299 Ga. App. 44, 48 (1)
(681 SE2d 701) (2009).

6
while he was in jail was insufficient to sustain his conviction for attempted escape

because while the defendant most likely had an intent to use the blades to escape he

had not yet attempted to do so). Compare New v. State, 270 Ga. App. 341, 343-344

(1) (606 SE2d 865) (2004) (evidence was sufficient to support defendant’s conviction

for criminal attempt to commit armed robbery where defendant went to a restaurant

armed with a BB handgun which resembled a semiautomatic pistol, parked his car in

several different locations in the parking lot, watched a group of people standing

outside of the restaurant, wore a mask covering his face, and drew his gun when

confronted by a police officer).

We find the following cases relied upon by the dissent to be inapposite to the

facts before us: Heard v. State, 299 Ga. App. 44, 48 (1) (681 SE2d 701) (2009)

(affirming a conviction for criminal attempt to commit robbery–not attempt to commit

armed robbery–based upon the defendant suspiciously walking around a bank,

moving to enter the bank but abandoning his actions after making eye contact with

a police officer, fleeing from the police officer, and possessing in his vehicle a note

indicating that he was going to commit a robbery); Evans v. State, 216 Ga. App. 21

(1) (453 SE2d 100) (1995) (affirming a conviction for criminal attempt to enter an

automobile where the defendants discussed the theft of a car stereo, possessed the

7
tools to commit the theft, and drove to a parking lot to commit the theft); Adams v.

State, 178 Ga. App. 261, 262-264 (2) (a) and (b) (342 SE2d 747) (1986) (affirming

a criminal attempt to commit armed robbery conviction where the defendants

previously discussed committing the armed robbery, drove to a hotel to commit the

armed robbery, agreed to rob someone when they arrived at the hotel, and were armed

with handguns); New, 270 Ga. App. at 343-344 (1) (discussed supra).

While we agree with the dissent, citing Prins v. State, 246 Ga. App. 585 (1)

(539 SE2d 236) (2000),4 that the presence of a weapon is not required in order to

sustain a conviction of armed robbery, we disagree that, in this case, the presence of

a weapon could be inferred. In Prins, the defendant handed a bank teller a note

demanding that she put money in a bag or he would kill her, all while concealing one

of his hands. Id. at 586-587 (1). In affirming Prins’ conviction, this Court held that,

“threatening to shoot a victim while keeping a hand concealed shows the weapon

element of armed robbery.” Id. at 587 (1). In this case, on the other hand, there is no

evidence that Rainey gave the notes to anyone or concealed his hands in any way as

if to hide a weapon. Furthermore, although certain auto care store employees were

4
Overruled in part on other grounds by Miller v. State, 285 Ga. 285, 287 n.1
(676 SE2d 173) (2009).

8
alarmed by Rainey’s conduct, the CVS employee testified that he was never in fear

of Rainey or otherwise felt as though he was in danger. And as noted above, neither

the auto care shop nor any of its employees were named victims in the indictment.5

Accordingly, we conclude there was insufficient evidence to support the jury’s

verdict of guilty on the charge of criminal attempt to commit armed robbery.6 See

Groves, 116 Ga. at 518; see also Thurman, 295 Ga. App. at 619 (1) (physical

precedent only); Smith, 156 Ga. App. at 696.

2. Because of our ruling in Division 1, we need not address Rainey’s remaining

arguments.7

5
CVS is a named victim in the indictment.
6
For reasons unexplained by the record, Rainey filed a motion for new trial on
September 27, 2012 but the hearing on his motion was not held until August 11,
2015.
7
Specifically, we need not address Rainey’s argument that his trial counsel
rendered ineffective assistance by failing to move to suppress the physical evidence
found in Rainey’s vehicle. We note, however, that the sergeant’s search of the interior
of Rainey’s checkbook likely exceeded the scope of Rainey’s consent to “look” inside
and/or throughout the vehicle. See State v. Corley, 201 Ga. App. 320, 323 (411 SE2d
324) (1991) (officer exceeded the scope of consent to “look inside” the suspect’s
truck when he opened a drawstring bag in the front seat); State v. Diaz, 191 Ga. App.
830, 831 (2) (383 SE2d 195) (1989) (officer exceeded defendant’s consent to “look
inside” his vehicle when he searched vehicle and opened a shaving kit); see also State
v. Neese, 302 Ga. App. 829, 830-831 (691 SE2d 883) (2010) (physical precedent
only) (officer expanded the scope of consent to “check” a backpack when the officer

9
Judgment reversed. Barnes, P. J., Miller, P. J., Ellington, P. J., McFadden and

Mercier, JJ., concur. McMillian, J., concurs fully and in the judgment only as to FN

7. Boggs and Branch, JJ., dissent.

unscrewed a flashlight located inside); Amato v. State, 193 Ga. App. 459, 460 (1)
(388 SE2d 54) (1989) (consent to look inside vehicle did not extend to removal of
vent cover on the door frame). And because the evidence was insufficient to sustain
Rainey’s conviction on criminal attempt to commit armed robbery, Rainey could not
be retried on the lesser included offense of criminal attempt to commit robbery. See
Levin v. State, 334 Ga. App. 71, 75 (2) (778 SE2d 238) (2015) (“[W]here a defendant
is tried and convicted of a crime, and that conviction is reversed due to insufficient
evidence, procedural double jeopardy bars re-prosecution for that same crime and any
lesser included crime.”) (citation and punctuation omitted.)

10
A16A0675. RAINEY v. THE STATE.

BOGGS, Judge, dissenting.

Because the evidence was sufficient to permit the jury to conclude that Rainey

took substantial steps towards the commission of an armed robbery, and because no

other enumeration of error warrants reversal, I respectfully dissent.

1. Rainey first attracted the attention of a mechanic at the auto shop and his

foreman because he parked in a remote area of the business’ parking lot, near the

adjacent drug store. After moving to a vantage point behind tinted glass windows,

they were able to see that Rainey’s license plate was covered up with a piece of paper,

that he appeared to be wearing a mask, and that he was behaving in a “suspicious”

manner, talking on his cell phone and constantly “looking around, looking over his

shoulder seeing if there was anybody there.” When Rainey got out of his car, they saw

that he was indeed wearing a mask, as well as a hooded sweatshirt with the hood up

and a hat. Rainey began pacing and “walking aimlessly,” “acting erratically,” walking

through bushes up a slope and around the back of the drug store.1 Both the mechanic

1
Rainey entered the drug store several times and asked odd questions of the
cashier. The manager testified that the store had no record of Rainey as a pharmacy
customer.
and foreman testified that they believed Rainey might be trying to rob the shop; one

of the employees called the police and the foreman armed himself, believing that a

robbery was imminent.

The first sheriff’s deputy to arrive entered the auto shop and spoke with the

manager. He and the second deputy, who arrived a few minutes later, entered the

drug store and found no person wearing a mask, but saw Rainey standing outside the

front door. Rainey began to walk “in a faster way than a normal person would walk,”

through shrubbery and down an embankment towards the auto shop. When Rainey

reached his car, the first deputy approached him and observed him “throw or toss

something inside of the vehicle” through the open window.

The deputies engaged Rainey in conversation and he told them that he was

waiting for his daughter; she, however, testified and denied this. When his attention

was called to the insurance bill taped over his license plate, Rainey stated that his

daughter must have done it to remind him to pay the bill; she denied this as well.

Rainey then invited the deputies to “look inside if you want,” and the first deputy

responded, “You don’t mind if I look throughout the vehicle?” and Rainey answered,

“No.” In addition to a working police scanner concealed by a towel on Rainey’s car

seat, a roll of tape which matched that used to cover the license plate, and a mask

2
“kind of between the passenger seat and the center console,” the deputy discovered

a checkbook lying on the floor, leaning up against the driver’s seat. It contained not

one but two robbery notes, one written on the outside cover of the checkbook register

and one on the clear plastic sleeve of the checkbook. Both notes stated that Rainey

had a gun, and one further stated, “there is one outside listening to a police scanner.”

This evidence authorized the jury to conclude that Rainey’s conduct went

beyond mere preparation and constituted a substantial step towards committing an

armed robbery.

To constitute an attempt there must be an act done in pursuance of the
intent, and more or less directly tending to the commission of the crime.
In general, the act must be inexplicable as a lawful act, and must be
more than mere preparation. Yet it can not accurately be said that no
preparations can amount to an attempt. It is a question of degree, and
depends upon the circumstances of each case. The fact that further steps
must be taken before the crime can be completed does not preclude such
a finding that the steps already undertaken are substantial.

(Citations, punctuation, and footnote omitted.) Heard v. State, 299 Ga. App. 44, 48

(1) (681 SE2d 701) (2009). In Heard, we affirmed a conviction for attempted robbery

after a sheriff’s deputy noticed Heard and another man standing outside a bank and

observed that both were wearing hats although it was a warm day, and Heard had his

3
hat pulled down “abnormally low,” id. at 48 (1), and that both avoided eye contact.

Id. at 45. When the officer attempted to speak with Heard and his companion, they

avoided him and then fled in an vehicle but were quickly apprehended. Id. at 45-46

(1). A search of the vehicle revealed a hat, a ski mask, gloves, a bandanna, sunglasses,

and a robbery note. Id. at 46-47 (1). We rejected Heard’s argument that his conduct

constituted mere preparation, observing:

Here, the evidence supports the jury’s conclusion that Heard took
substantial steps toward the commission of robbery. He wore a hat
pulled abnormally low over his head, he scouted the bank, he moved to
enter the bank but diverted his steps at the last minute, and a note
indicating a bank robbery was going to occur was found in the car Heard
drove. The fact that further steps needed to be taken before the crime
could be completed does not preclude a finding that Heard took a
substantial step toward committing a robbery. It was within the jury’s
province to conclude that but for the presence of the officer, Heard
would have committed a bank robbery.

Id. at 48 (1). Similarly, in Evans v. State, 216 Ga. App. 21 (1) (453 SE2d 100) (1995),

the appellants drove slowly around several parking lots looking for a car to enter, and

had burglary tools in their possession, but left the scene without breaking into a car

because they noticed that they were being followed. Id. at 21-22 (1). The appellants

contended that there was insufficient evidence that they took a substantial step to

enter an automobile, but we rejected that argument, noting:

4
[Appellants’] discussion regarding the theft of a car stereo and their
possession of tools to aid in the commission of such a theft, without
more, would not have amounted to an attempt to enter an automobile,
but merely would have been preparatory acts not proximately leading to
the consummation of the crime of entering an automobile. [Appellants],
however, went beyond these remote acts of preparation when they drove
to the shopping center parking lots in search of a specific car to enter.

Id. at 22 (1). See also Adams v. State, 178 Ga. App. 261 (342 SE2d 747) (1986), in

which we observed:

The “substantial step” language of OCGA § 16-4-1 shifts the emphasis
from what remains to be done to what the actor has already done. The
fact that further steps must be taken before the crime can be completed
does not preclude such a finding that the steps already undertaken are
substantial. In addition to assuring firmness of criminal purpose, the
requirement of a substantial step will remove very remote preparatory
acts from the ambit of attempt liability and the relatively stringent
sanctions imposed for attempts.

(Emphasis in original.) Id. at 263 (2) (b). In Adams, the appellant and his co-

defendants drove a considerable distance to the hotel where they planned to commit

a robbery. Id. However, they were stopped by police while they were driving around

the hotel parking lot. Id. The appellant fled and was apprehended; police discovered

that he was armed with a handgun and had two stocking caps on his head, one with

holes cut in it for his eyes, nose, and mouth. Id. We concluded that the appellant’s

5
actions were “inexplicable under the circumstances as a lawful act and are more than

mere preparation,” and that the jury was authorized to find that substantial steps had

been taken towards the commission of armed robbery. Id. at 263-264 (2) (b).

In New v. State, 270 Ga. App. 341-342 (1) (606 SE2d 865) (2004),

distinguished by the majority, the facts are generally similar to those shown here.

New was observed in a business parking lot moving his car around in an unusual

fashion, surreptitiously watching bystanders, and wearing a mask. Id. at 341 (1). The

only distinguishing factor is that New was found in possession of a BB gun, while no

weapon was found in Rainey’s possession. Id. at 342 (1). But the absence of a

weapon is not dispositive. In Prins v. State, 246 Ga. App. 585, 585 (1) (539 SE2d

236) (2000), overruled in part on other grounds, Miller v. State, 285 Ga. 285, 287 n.1

(676 SE2d 173) (2009), we affirmed Prins’ conviction for armed robbery even though

no weapon was seen or found. Prins walked to a bank window and handed the teller

a note reading, “I have a gun Put 100 50 20 in bag I will kill you I have nothing to

lose.” Prins, supra, 246 Ga. App. at 585 (1). While he did not take any action to

indicate that he was holding a weapon, one of his hands was not visible to the teller.

Id. at 586 (1). We noted that for an armed robbery conviction, only “some evidence

from which the presence of a weapon may be inferred” is required. (Citations

6
omitted.) Id. “Furthermore, the question is whether the defendant’s acts created a

reasonable apprehension on the part of the victim that an offensive weapon was being

used, regardless of whether the victim actually saw the weapon.” (Citations and

punctuation omitted.) Id.

Since the commission of armed robbery does not require the presence of an

actual weapon, but only evidence from which a weapon’s presence may be inferred,

the notes discovered in Rainey’s checkbook, taken in combination with the other

behavior observed, could be considered by the jury as a substantial step towards the

commission of an armed robbery.2

All our decisions on this issue reiterate that it is not our province to decide

when or whether “mere preparation” becomes a “substantial step” constituting

criminal attempt; that decision is for the jury. Here, the jury was authorized to

conclude that Rainey’s conduct, which was alarming enough to cause the foreman at

the auto repair shop to arm himself and have an employee call the police, taken in

2
The trial court and counsel discussed at some length the lack of proof of a
weapon. Ultimately, the jury was presented with a choice between criminal attempt
to commit armed robbery and criminal attempt to commit robbery, and decided in
favor of armed robbery. Defense counsel briefly argued the absence of a weapon in
closing. The jury was correctly charged on armed robbery and robbery, attempt, and
abandonment. But Rainey does not argue these issues on appeal.

7
combination with the notes, was sufficient to constitute a substantial step towards

commission of an armed robbery. The jury could have concluded that Rainey had the

checkbook with the robbery notes on his person when he entered the CVS to scout

or to rob it, but that he noticed the arrival of law enforcement at the auto repair shop,

whereupon he left the CVS, took a circuitous route back to his vehicle, and tossed the

checkbook into his car. In other words, “but for the presence of the officer[s],

[Rainey] would have committed a[n armed] robbery.” Heard, supra, 299 Ga. App. at

48 (1). The evidence was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SCt

2781, 61 LE2d 560) (1979), and we should affirm.

2. Additionally, for the reasons stated below, I do not believe that either of

Rainey’s remaining enumerations of error warrants reversal. Rainey asserts two

instances of ineffective assistance of trial counsel: (a) failure to file a motion to

suppress the evidence obtained in the search of his car; and (b) failure to object to

testimony by a sheriff’s investigator that he contends went to the ultimate issue of the

case.3

3
To the extent that Rainey asserts that the search of his vehicle was unlawful,
he has waived that claim by failing to file a written motion to suppress or to object
to the admission of that evidence at trial. Ferrell v. State, 312 Ga. App. 122, 125 (2)
(717 SE2d 705) (2011).

8
In reviewing a claim of ineffective assistance,

[u]nder the two-part test established in Strickland v. Washington, 466
U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), [Rainey] must prove
both that his trial counsel’s performance was deficient and that there is
a reasonable probability that the trial result would have been different
if not for the deficient performance. If an appellant fails to meet his
burden of proving either prong of the Strickland test, the reviewing
court does not have to examine the other prong.

(Citations and punctuation omitted.) Harrison v. State, 313 Ga. App. 861, 865 (3)

(722 SE2d 774) (2012).

As a general rule, reasonable trial tactics and strategies do not amount
to ineffective assistance of counsel. The decisions on which witnesses
to call and all other strategies and tactical decisions are the exclusive
province of the lawyer after consultation with his or her client. Whether
an attorney’s trial tactics were reasonable is a question of law, not fact.
When assessing the reasonableness of counsel’s actions, a court must
evaluate counsel’s performance from his or her perspective at the time
of trial. This Court reviews a trial court’s ruling on an ineffective
assistance claim on appeal by accepting the trial court’s factual findings
and credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts. [Cits.]

Hughley v. State, 330 Ga. App. 786, 791 (4) (769 SE2d 537) (2015).

9
(a) Rainey first complains that trial counsel was ineffective in failing to file a

motion to suppress the items found in the search of his vehicle.

Ordinarily, on the appeal of a trial court’s ruling on a motion to suppress, the

burden is on the State to show that the scope of an appellant’s consent to search was

not exceeded. State v. Long, 232 Ga. App. 445, 445-446 (502 SE2d 298) (1998). But

when counsel is alleged to be ineffective due to failure to file a motion to suppress,

appellant must make a “strong showing” that the motion would have been granted.

Millsap v. State, 275 Ga. App. 732, 736 (3) (c) (621 SE2d 837) (2005). And “we defer

to the trial court’s findings of facts in reviewing its ruling on an ineffective assistance

of counsel claim unless they are clearly erroneous, and the ‘clearly erroneous’ test is

the same as the ‘any evidence rule.’ [Cits.]” Gravitt v. State, 301 Ga. App. 131, 133

(1) (687 SE2d 150) (2009).

One of the deputies testified to his conversation with Rainey as follows:

Q. What, if anything, did he say?

A. He offered to let me look inside the vehicle.

Q. And how did he do that? . . . . what did he say?

A. I believe his exact words were, “You can look inside if you want.”
And I replied to him, “You don’t mind if I look throughout the vehicle?”
Which he replied, “No.”

10
We have held that, without more, consent to “look inside” a vehicle may not

be arbitrarily expanded in scope to include a full-scale search of the interior and the

contents of any containers. See, e. g., State v. Diaz, 191 Ga. App. 830, 832 (2) (383

SE2d 195) (1989). But here, the first deputy specifically followed up Rainey’s offer

with a request to “look throughout the vehicle,” and Rainey agreed. Moreover, the

second deputy specifically testified that Rainey gave consent to a search:

Q. “Did you hear Mr. Rainey give [the first deputy] permission to search
his vehicle?”

A. “Yes, he did.”

No testimony or evidence at the hearing on the motion for new trial

contradicted the deputies’ testimony, and the trial court found that Rainey “consented

to a search of the car.”4 We cannot say that the trial court’s ruling is clearly erroneous

because it is supported by some evidence. See Benike v. State, 240 Ga. App. 400, 401

(523 SE2d 622) (1999). And “[i]t is not ineffective assistance of counsel to refrain

from making a futile motion or filing a meritless motion to suppress.” (Citations and

4
The motion was heard and ruled upon by a successor judge rather than the
judge who presided over Rainey’s trial.

11
punctuation omitted.) King v. State, 287 Ga. App. 375, 377 (2) (a) (651 SE2d 496)

(2007).

(b) Rainey’s second claim of ineffective assistance is that trial counsel was

ineffective for failing to object to the testimony of a sheriff’s investigator going to the

ultimate issue in the case. “Ordinarily, a witness may not express his opinion as to an

ultimate fact, because to do so would invade the province of the jury.” (Citation and

punctuation omitted.) Batten v. State, 295 Ga. 442, 445 (3) (a) (761 SE2d 700 (2014).

Here, the investigator testified on direct examination:

Q. What did you arrest Mr. Rainey for?

A. Criminal Attempt of Armed Robbery.

Q. And why was it that you arrested him for Criminal Attempt to
Commit Armed Robbery?

A. Based on the evidence that I could see at the scene it appeared to
me that Mr. Rainey had taken steps towards carrying out an Armed
Robbery that day.

The contention that this testimony went to the ultimate issue is without merit. In

Oliphant v. State, 295 Ga. 597, 600 (2) (a) (759 SE2d 821) (2014), the appellant

claimed that his counsel should have objected to playing for the jury a portion of his

12
videotaped police interview, in which a police officer explained to him why he could

be charged as a party to the crime. He contended that

the officer’s statements constituted an improper opinion on the ultimate
issue of [his] guilt as an accomplice. We disagree, because here the
officer was clearly not offering opinion testimony on the ultimate issue
but was merely informing [appellant] as to the probable cause for his
arrest. Counsel’s failure to object to this [testimony] does not constitute
deficient performance. [Cit.]

Id. Similarly, in Batten, supra, a detective testified “identifying appellant as the

person who [he] arrested for committing this murder.” 295 Ga. at 444 (2). Our

Supreme Court held that appellant did not meet his heavy burden to show

ineffectiveness on the basis of counsel’s failure to object to this testimony,

concluding that the testimony was “without consequence” because “[t]he jury could

reasonably infer appellant, who was on trial for killing the victim, was arrested for

that crime.” Id. at 445 (3). Similarly, the jury could infer that Rainey was arrested for

the crime for which he was on trial, and the witness was not testifying to the ultimate

issue of Rainey’s guilt but to why he arrested him; in other words, the “probable

cause for his arrest.” Oliphant, supra, 295 Ga. at 600 (2) (a).

13
Moreover, at the hearing on the motion for new trial, trial counsel testified that

the witness “said [Rainey] had taken steps. He didn’t say substantial steps. If he had

said substantial, I guess I would have jumped up.”5 “[T]rial counsel was not

ineffective where he articulated a valid strategic reason for not objecting to . . .

evidence.” (Citation omitted.) Adams v. State, 276 Ga. App. 319, 324 (6) (a) (623

SE2d 525) (2005). Here, even assuming that the testimony was objectionable, the

“strategic decision not to object to this testimony was not so patently unreasonable

that it amounted to deficient performance.” Silvey v. State, 335 Ga. App. 383, 397 (3)

(b) (iii) (780 SE2d 708) (2015). And while trial counsel agreed with Rainey’s

appellate counsel at the hearing on the motion for new trial that he “should have

objected sooner, perhaps sooner,” it is well established “that hindsight has no place

in an assessment of the performance of trial counsel, and a lawyer second-guessing

his own performance with the benefit of hindsight has no significance for an

ineffective assistance of counsel claim.” (Citation and punctuation omitted.) Shaw v.

State, 292 Ga. 871, 876 (3) (a) (742 SE2d 707) (2013).

For these reasons, I respectfully dissent.

5
Trial counsel did object shortly afterwards, when the witness began to testify
in detail to the legal reasons for bringing the charges: “Your Honor, I’m going to
object if he’s going to start stating matters of law.”

14
I am authorized to state that Judge Branch joins in this dissent.