Following a jury trial, Howard Holloman, Jr., appeals his conviction for malice murder, felony murder, aggravated battery, aggravated assault, and cruelty to children, contending that the trial court gave the jury an incomplete instruction on aggravated assault, certain text messages were improperly admitted into evidence, trial counsel rendered ineffective assistance, and improper impeachment evidence was admitted during the hearing on his motion for new trial.
1. In the light most favorable to the verdict, the record shows that, on the evening of August 24, 2009, Eva Rodney left her six-month-old son, Nathaniel, with Holloman. Holloman was alone with Nathaniel until the next morning, when Rodney arrived in response to a message from Holloman that
This evidence was sufficient to enable the jury to find Holloman guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia,
2. Holloman contends that the trial court gave the jury an incomplete charge on the crime of aggravated assault because the charge omitted a definition of simple assault. The trial court charged: “[A] person commits the offense of aggravated assault when the person assaults another person with any object, device, or instrument that when used offensively against a person is likely to or actually does result in serious bodily injury.” Because Holloman did not object to the trial court’s charge before the jury retired to deliberate, we must review his contention on appeal for “plain error.” The plain error test adopted in State v. Kelly,
We considered a similar argument in Cantera v. State,
[Tjhere is a distinction between aggravated assault cases with injuries that have been intentionally inflicted based upon the evidence and those where, although there may be injuries, intent may be in question. In cases where intent is in question, a charge on simple assault must be given so the jury can see that, although no physical harm may have been done, the defendant could still be found guilty of aggravated assault if the jury finds that the defendant attempted to commit a violent injury or if the defendant performed an act which placed the victim in reasonable apprehension of immediately receiving a violent injury. See, e.g., Chase[ v. State,277 Ga. 636 , 640 (2) (592 SE2d 656 ) (2004)] (simple assault charge describing “violent” nature of injury that would support assault conviction was necessary where defendant killed his wife by shooting through the floor of the room above her, although he could not see her while he was shooting).
Cantera, supra,
Where, as here, however, the jury has already been properly instructed on general intent and there is no question regarding the [nature of the injuries as being deliberately inflicted and the cause of death being a homicide due to abuse], there is no need for the trial court to instruct the jury on simple assault in connection with its charge on aggravated assault. See Sutton[ v. State,245 Ga. 192 , 193 (2) (264 SE2d 184 ) (1980)].
Id. This enumeration therefore lacks merit, especially in consideration of the plain error doctrine.
3. Holloman contends that the trial court erred by admitting certain text messages he sent to Rodney, arguing that the text messages were not properly authenticated. The record shows that, during trial, the State introduced text messages Holloman
4. Holloman contends that he received ineffective assistance because trial counsel failed to (a) object to the admission of the text messages sent to Rodney’s cell phone and (b) obtain an expert witness to rebut the testimony of the State’s medical examiner regarding Nathaniel’s cause of death.
In order to succeed on his claim of ineffective assistance, [Holloman] 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. Strickland v. Washington,466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV); Fuller v. State,277 Ga. 505 (3) (591 SE2d 782 ) (2004). In reviewing the trial court’s decision, “ ‘[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.]” Robinson v. State,277 Ga. 75 , 76 (586 SE2d 313 ) (2003).
Wright v. State,
(a) Holloman first contends that trial counsel rendered ineffective assistance by failing to make an authentication objection to Holloman’s text messages to Rodney. Holloman, however, has shown no harm. There were three messages in issue, and all three merely contained requests for Rodney to call Holloman as soon as possible. Holloman has made no showing on appeal as to how these requests harmed his case, other than contending that the texts touched upon his character as being impatient. Even if this were so, however, other evidence was admitted that Holloman was “tired of the baby” on the morning in question. Holloman has not proven ineffective assistance in this regard.
(b) Holloman maintains that trial counsel’s failure to call an expert witness to rebut the medical examiner’s testimony constitutes inadequate preparation for trial. The record shows, however, that Holloman’s attorney discussed with Holloman the possibility of a defense based on the argument that CPR performed on Nathaniel inadvertently caused the child’s injuries. Trial counsel investigated the viability of this defense by contacting a pediatrician, who reviewed the information trial counsel provided and informed him that she did not believe that Nathaniel’s
5. Holloman argues that, during the motion for new trial hearing, the trial court erred by allowing the State to impeach his newly-hired medical expert with evidence that had not been properly disclosed to Hollomaninadvance.HollomanbasesthisargumentonOCGA § 17-16-4 (c), regarding notice prior to or during trial to the other party about certain discoverable evidence. Pretermitting the question of whether this Code section applies to motion for new trial proceedings, Holloman did not object to the State’s evidence when it was presented. As a result, he has waived this argument for purposes of appeal. See Rogers v. State,
Judgment affirmed.
Notes
On September 10,2010, Holloman was indicted for malice murder, three counts of felony murder, four counts of aggravated battery, six counts of aggravated assault, and four counts of cruelty to children. Following a jury trial ending on May 12, 2011, Holloman was found guilty on all counts. Subsequently, the trial court sentenced Holloman to life imprisonment for malice murder, twenty concurrent years for one count of aggravated assault, and ten concurrent years for cruelty to children. The conviction for felony murder was vacated by operation of law, Malcolm v. State,
We note that, although Holloman raised this ground in his motion for new trial, it was not ruled upon by the trial court. Because it is plain from the record that Holloman has failed to prove harm, we need not remand this issue to the trial court because it is clear from the record that the Strickland test cannot be met. See Wilson v. State, 286 Ga. 141, 145 (4) (