Miсhael Lawson was convicted by a Fulton County jury of aggravated assault and aggravated battery based on evidence that he slicеd a woman’s throat from her ear to her chin. The trial court merged the aggravated battery conviction with the aggravated assault conviction for sentencing purposes and sentenced Lawson to a term of ten years, seven in prison and three on probation. Lawson enumerates two errors on appeal from the denial of his motion for new trial: ineffective assistance of counsel and an alleged fatal variance between the indictment and the proof. We affirm.
1. Lawson argues that his trial counsel was ineffective for failing to object to a juror who, Lawson contends, was not qualified to serve because he did not reside in Fulton County at the time оf trial. “An objection that one of the jurors who tried the case was a non-resident of the county at the time of the trial, being proptеr defectum, comes too late after verdict.” 1 Moreover, “[a] juror incompetent propter defectum is made speсially competent by the act of the parties in allowing him to serve without challenge, and a verdict will not be set aside for such cause.” 2
To establish a claim of ineffectiveness, it is the defendant’s burden to show that trial counsel’s performance was deficient and that the deficiency prejudiced his defense. Moreover, there is a strong presumption that trial counsel performed within the wide range of reasonable professional assistance, and a trial court’s finding that counsel’s performance was within that range will not be reversed on appeal unless it is clearly erroneous. 3
Thus, even if counsel’s failure to object to the juror can be deemed deficient, Lawson did not make the second showing required in order to establish a claim of ineffective assistance. 4 The trial court’s denial of Lawson’s motion for new trial on this ground was not cleаrly erroneous.
2. In his remaining enumerated error, Lawson alleges that his due process rights were violated because a fatal variаnce existed between the indictment and the evidence adduced at trial. In this regard, the aggravated assault count of the indictment сharged Lawson with unlawfully assaulting the victim “by slicing her neck with a knife, an object which when used offensively against a person is likely to result in serious bodily injury.” Similarly, the aggravated battery count charged Lawson with committing the crime by the use of a knife. At trial, the evidence showed that a box cutter was the weapon. The distinction between the weaponry in this case does not constitute a fatal variance between the allegata and the probata.
“Not all differences between an indictment and proof constitute fatal variances. An accused must be definitely informed of the charges against him so that he may present a defense, and he must be protected against а second prosecution for the same offense. If a variance does not present these dangers, it is not fatal.”
5
In
Mitchell v. State,
6
we found no fatal variance where the appellant was indicted for committing aggravated assault with a knife but there was evidence that the viсtim was cut with broken glass.
7
We reasoned that, because both weapons produce similar injuries, the appellant was sufficiently informеd of the charges against him so as to prepare an
adequate defense, and he faced no danger of further prosecution arising out of the incident leading to his conviction.
8
Mitchell
relied on
Battles v. State,
9
in which the Supreme Court found no fatal variance between the indictment, which charged the appellant with striking a fatal blow with a wrench, and the
We follow Battles and Mitchell and reach the same conclusion in the case at bar. A box cutter and a knife are both bladed weapons capable of producing the same type of “slashing” injury inflicted on the victim in this case. Indeed, we have рreviously noted that a box cutter is also known as a utility knife. 12 Therefore, we hold that the difference between the allegata and the probata was not a fatal variance, because Lawson was sufficiently informed of the charges against him so as to enable him to prepare an adequate defense, and he faces no danger of further prosecution arising out of the incident. 13
Finally, within this еnumeration, Lawson contends that the jury charge on aggravated assault allowed him to be convicted in a manner which was not included in the indictment. However, Lawson failed to object to this instruction or to reserve any exceptions to the jury charge when asked by the court. Therefore, he has waived the issue on appeal. 14
Judgment affirmed.
Notes
(Citations and punctuation omitted.)
Trammell v. State,
(Citation and punctuation omitted.)
Vaughn v. State,
(Citations and punctuation omitted; emphasis in original.)
Stevenson v. State,
Id. at 341 (3) (b).
(Citation omitted.)
London v. State,
Id. at 331-332.
Id. at 332.
Id. at 417 (5).
Id. at 417-418 (5). See also
Jackson v. State,
See
Rowland v. State,
See Battles, supra; Mitchell, supra.
Baskin v. State,