Roger Jack Cox, Robert Lee Cooper, and Brandon Keith Chappell, were convicted by a jury of aggravated assault, OCGA § 16-5-21. Following the denial of their motions for new trial, each man filed a notice of appeal. Because they were tried together and raise related issues on appeal, we consolidated their appeals for review. For the reasons which follow, we affirm.
1. The victim was beaten by a group of teenagers in the parking lot of a skating rink. Cox and Cooper contend that there was insufficient evidence identifying them as participating in the assault.
On appeal the evidence must be viewed in the light most favorable to support the .verdict, and [the defendant] *335 no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
(Punctuation omitted.)
Kovacs v. State,
At trial, two eyewitnesses positively identified Cox, Cooper and Chappell as having kicked the victim repeatedly. Furthermore, both Cox and Cooper admitted their involvement. The night of the assault, after being advised of his rights to silence and to counsel and in the presence of his parents, Cooper made a statement to a uniformed officer in which he admitted being present at the altercation and admitted striking the victim. The day after the assault, after being advised of his rights and in the presence of his mother, Cox made a statement to the same officer in which he admitted being present at the altercation and admitted kicking the victim. The evidence, including the evidence of the assailants’ identity, was sufficient to support the verdicts.
Peek v. State,
2. Cooper contends that he was denied due process, particularly his right to counsel, in being required to appeal the juvenile court’s decision to transfer the case to the superior court within 30 days of the transfer order. See OCGA §§ 5-6-38; 15-11-39;
J. T. M. v. State of Ga.,
3. Chappell contends that his trial counsel rendered ineffective assistance by not calling him to testify at the pretrial hearing regarding the voluntariness of his inculpatory statement.
In order to establish ineffectiveness of trial counsel under Strickland v. Washington,466 U. S. 668 , 687 (104 SC 2052, 80 LE2d 674) (1984), [Chappell] must show both that counsel’s performance was deficient and that the deficient perfor *336 manee prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.
(Citations and punctuation omitted.)
Stephens v. State,
In this case, Chappell claims that if given the opportunity he would have testified that he was coerced into making two false statements: that he kicked the victim approximately thirty times and that a fourth person, Eric O’Conner, did not participate in the assault. Chappell concedes that absent the coercion he still would have admitted kicking the victim but could not have specified how many times. His trial counsel testified at the hearing on the admissibility of Chappell’s statement that he advised Chappell about the advantages and disadvantages of testifying and that Chappell alone made the decision not to testify. The trial court found no reasonable probability that the outcome of the proceedings would have been different absent the alleged deficiency of counsel’s performance. We agree. Even if Chappell had received ineffective assistance of counsel, to obtain a new trial he had the burden of showing that “the deficient performance prejudiced the defense by creating a reasonable probability of a different outcome but for counsel’s errors.”
Rucker v. State,
We further find that Chappell failed to show that he was prejudiced by his trial counsel’s performance with regard to sentencing. Chappell testified at his sentencing hearing that he did not know how many times he had kicked the victim and testified that the officer coerced him into stating that he kicked the victim 30 times.
*337
But the trial court specifically found that the number of times Chappell kicked the victim was irrelevant to the appropriate punishment. Because the trial court did not rest on the challenged evidence, no injustice has been shown.
Jackson v. State,
4. Cox contends that the trial court erred in refusing to sever his trial from that of co-defendants Cooper and Chappell. Before trial, Cox expected the evidence to show that he kicked the victim once in the leg and then “broke away” from the assault and that other assailants then kicked the victim another 30 times in the head. On appeal, Cox contends that the trial court abused its discretion in denying his motion to sever because the extensive medical evidence regarding the victim’s head injuries was likely to confuse the jury since Cox did not cause those injuries, citing
Crawford v. State,
To be entitled to a severance, the appellant must have made a clear showing of prejudice resulting from joinder of these trials amounting to denial of due process, rather than the mere possibility that a separate trial would improve appellant’s chance of acquittal.
Autry v. State,
Viewed in the light most favorable to support the verdict, the evidence shows that Cox participated in the group attack on the victim. Therefore, he is criminally responsible for the injuries inflicted by all parties to the crime even if he personally delivered only one blow.
Moore v. State,
5. Both Cox and Cooper contend that the trial court erred in denying their motion to sever their trials from that of co-defendant Chappell pursuant to the holding in
Bruton v. United States,
6. Chappell argues that his trial should have been severed from that of Cox and Cooper under a Bruton-type analysis. Chappell contends that he was harmed by the admission of Cox’s and Cooper’s statements which admitted minimal involvement in the beating thereby implying that Chappell, who had admitted kicking the victim 30 times, was responsible for the majority of the victim’s injuries. We find no prejudice in the joint trial where, despite Chappell’s greater degree of admitted culpability, the jury convicted him of the same crime as those with minimal admitted culpability — one count of aggravated assault.
Lewis v. State,
7. Cox, Cooper and Chappell contend that the trial court erred in not granting a new trial based on the State’s failure to produce exculpatory evidence as required by
Brady v. Maryland,
8. Cooper contends that the State violated its duties under the reciprocal discovery statute, OCGA § 17-6-1 et seq., by failing to provide him with the transcript of the juvenile proceedings which preceded the transfer to the superior court. Cooper did not raise the issue of whether the State had violated its discovery obligations at trial, nor did he raise the issue in his motion for new trial.
When the state fails to comply with any of the discovery provisions, OCGA § 17-16-6 provides remedies, which include *339 the grant of a continuance and the exclusion of evidence. The record reveals that [Cooper] did not raise the state’s noncompliance at trial. Therefore, [he] did not give the trial court the opportunity to exercise its discretion in formulating an appropriate remedy and cannot complain for the first time on appeal.
White v. State,
9. Cox and Cooper both contend that the admission of evidence that they had been using marijuana just before the assault improperly introduced the issue of their character. Evidence as to whether a defendant was under the influence of alcohol or drugs at the time a crime was committed is deemed part of the res gestae and is admissible as such even though it may incidentally place the defendant’s character in evidence.
Ramsey v. State,
10. Cooper complains that he was not allowed to cross-examine a witness. The witness, Harvey Welch, was sworn in and answered ten preliminary questions before indicating that he wanted to assert his constitutional right not to incriminate himself. The trial court suspended his appearance to allow him to consult with his lawyer before answering any other questions. The State opted not to call the witness to complete his testimony. Although Cooper never had the opportunity to cross-examine the witness, he never moved that the testimony be stricken. See
Robinson v. State,
11. Cox contends that he was entitled to a new trial because co-defendant Chappell’s counsel stated in his closing argument, “we all agree that these three boys did something stupid.” “The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed.” (Citation and punctuation omitted.)
Hayes v. State,
Judgments affirmed.