Stеphaan Brown appeals from the denial of his motion for new trial following a conviction by a jury for a violation of the Georgia Racketeer Influenced and Corrupt Organizations (“RICO”) Act.
Construed in favor of the verdict,
A temporary employee, Kevin Black, wаs also paid unearned overtime pay based on Brown’s falsification of records sent to Black’s
After Knighton complained and later resigned, Julie Buffington, KMM’s general counsel, conducted an investigation into the false overtime reports made by Brown. Based on the investigation, including interviews with Brown and other current аnd former KMM employees, Brown was terminated. A police investigation ensued, and Brown was charged with the RICO violation.
Brown was tried by a jury and convicted of one RICO violation based on the falsified overtime reports. He filed a motion for new trial, which was denied, giving rise to this appeal.
1. Brown contends that the trial court erred by overruling his objection to testimony by Buffington that Brown was terminated as a result of KMM’s investigation. Brown argues that this testimony was irrelevant and invaded the province of the jury. We review a trial court’s evidentiary rulings for an abuse of discretion,
(a) Relevance. The challenged testimоny essentially explained that KMM’s investigation led to Brown’s termination. The investigation arose from allegations by former employees who revealed the overtime fraud scheme. The indictment contained a narrative overview of the alleged conspiracy, which recountеd Brown’s role in recruiting employees to falsify overtime hours in exchange for payment. Thus, KMM’s investigation into billing allegations and the ultimate termination of Brown for his involvement in these activities were circumstances that elucidated the factual allegations in the complaint.
Any evidence is relevant which logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. [Because] Georgia law favors the admission of any relevant evidence no matter how slight its probative value, even evidence of questionable*200 or doubtful relevancy or competency should be admitted and its weight left to the jurors.4
Accordingly, the trial court did not abuse its discretion by finding the testimony relevant.
(b) Invading the province of the jury. “Georgia law generally preсludes a witness from testifying as to his or her opinion regarding an ultimate issue in the case because to do so would invade the province of the jury.”
2. Brown contends that the trial court committed plain error
3. Brown also argues that trial counsel was ineffective for the following reasons: (a) failing to object to a reference by Buffington to an e-mail sent by a deceased ex-employee, Willie Johnson, that was consistent with the e-mail sent by Knighton alerting Buffington to Brown’s improper acts; (b) failing to request a jury instruction on corroboration of accomplice testimony; (c) failing to object to the admission of voluminous time sheets; and (d) failing to analyze the time sheets.
Under Strickland v. Washington,
(a) Failure to object to Johnson e-mail. At trial, Buffington testified about the events leading up to KMM’s internal investigation. She explained that based on Knighton’s e-mail accusing Brown оf sexual harassment and mismanagement of resources, she convened a conference call to speak to Brown, his supervisor, and KMM’s
[W]e wanted to get to the bottom.... We needfed] to go back and get as much information as we can about this. So that’s what we did. We investigated and then before it even — before we even had done our investigation[,] we got the email with the complaint from Willie Johnson [who was deceased by the time of trial] . . . alleging very much the same stuff. Nothing about sexual harassment.
At that point, Brown argues that his trial counsel should have objected because Johnson was deceased and not available for cross-examination. Brown points out that his trial counsel had successfully moved in limine to exclude Johnson’s e-mail on that ground. But the actual e-mail itself remained еxcluded, and there were other earlier references to the existence of Johnson’s e-mail at trial that are not challenged on appeal. KMM’s controller had already testified, without objection at trial or challenge on appeal, that Johnson’s e-mail hаd led to KMM’s investigation. Brown’s trial counsel used Johnson’s e-mail to cross-examine the controller and later Knighton about the timing of Knighton’s e-mail relative to Johnson’s termination, suggesting a relationship or collusion between Knighton and Johnson. Therefore, the brief reference by Buffington was cumulаtive of other evidence, and Brown cannot meet his burden to show prejudice under Strickland.
(b) Failure to request jury instruction on the requirement for corroboration of accomplice testimony. As explained in Division 2, the evidence did not require an instruction on accomplice testimony, so failing to request one does not support Brown’s ineffective assistance claim.
(c) Failure to object to the admission of time sheets. At trial, the State introduced several hundred pages of time sheets from employees. Brown now contends that his trial counsel should have objected because they were unorganized аnd indecipherable, and therefore irrelevant. Pretermitting whether this argument shows any harm from their admission, Brown’s counsel testified at the motion for new trial hearing that he did not make a substantive objection because he
My recollection is that we actually wanted the records to сome in, that having reviewed the records [,] we were convinced that there were enough inconsistencies in them, and that there were enough contradictions in the records themselves with the testimony of the other witnesses that would work to our benefit. ... I remember thinking that it wasn’t a bad thing if they came in because there was a way they could be beneficial to us.
[L]et me be clear. They were hundreds of pages of records and there were hundreds of pages of time records, but there were only a few of them that were actually referenced at trial[,] and those werе tabbed that were referenced and were referred to in closing arguments. They were relevant to the testimony that had come forth, and I certainly thought that the jury would have been sophisticated enough to look at those that we pointed out and that would have worked to our benefit.
In light of this testimony, Brown’s argument fails because trial counsel’s conduct was in pursuit of a reasonable, informed trial strategy. The inquiry in an ineffective assistance claim “focuses on the reasonableness of counsel’s conduct from counsel’s perspective at the time of trial. Thus, the [appellate] courts will not second-guess counsel’s decisions concerning matters of trial strategy and tactics.”
(d) Failure to adequately analyze the time sheets. Brown further contends that his trial counsel performed deficiently by inadequately analyzing the time sheets and summarizing them for the jury. Nevertheless, as explained by the testimony above, the evidence supports a finding that Brown’s trial counsel did analyze the time sheets and found the tabbed references adequate to make his case to the jury.
Although [Brown’s] current counsel may not agrеe with that strategy[,] and even his trial attorney may have rethought [his] earlier decision, this Court does not evaluate effectiveness of trial counsel by hindsight or by what present counsel*204 would have done. [Brown] failed to show that his counsel’s performance was deficient under the criteria set out in Strickland v. Washington. A defendant is entitled not to perfect representation but to reasonably effective assistance.18
4. Last, Brown contends that the evidence failed to support the guilty verdict. When reviewing the sufficiency of the evidence,
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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through а legal conclusion that upon judicial review all of the evidence is to'be considered in the light most favorable to the prosecution.19
Under this standard, the evidence sufficed to support a finding that Brown conspired with other employees to falsify their overtime records in exchange for payment by thеm. There was direct evidence of Brown’s unlawful acts, corroborated by nonaccomplice witnesses, as well as a recording of Brown’s own incriminating statement. Any inconsistencies in the evidence were for the jury to resolve.
Judgment affirmed.
Notes
See OCGA § 16-14-4 (a).
See Short v. State,
See Smith v. State,
(Punctuation omitted.) Black v. State,
(Punctuation omitted.) Windhom v. State,
See OCGA § 17-8-58 (b) (“Failure to [specifically] object [to a jury charge pursuant to subsection (a)] shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge сonstitutes plain error which affects substantial rights of the parties.”).
See OCGA § 24-4-8 (2010).
(Punctuation omitted.) Laing v. State,
Our courts have "defined ‘plain error’ as ‘that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice’ or which ‘seriously affects the fairness, integrity!,] or public reputation of a judicial proceeding.’ ” (Punctuation omitted.) State v. Kelly,
See id. at 687-688, 694 (III) (A)-(B).
(Citation and punctuation omitted.) Williams v. State,
See Strickland, supra,
(Punctuation omitted.) Robinson v. State,
See Allen v. State,
See Porter v. State,
(Punctuation omitted.) Smith v. State,
(Citation and punctuation omitted.) Smith v. State,
(Citation omitted; emphasis in original.) Jackson v. Virginia,
See Vega v. State,