A Bibb County jury convicted Lebwana C. Martin of one count of terroristic threats (OCGA § 16-11-37 (a)). Martin filed a motion for a new trial, which the trial court denied. Martin now appeals, arguing that the evidence was insufficient to support his conviction; the trial сourt’s jury instructions violated his due process rights; and the trial court erred in allowing the prosecutor to repeat her opening statement when one of the jurors was tardy. Martin also claims he received ineffective assistance of counsel at trial. Finding sufficient *118 evidence to support the conviction, no violation of due process, and that Martin failed to establish his ineffective assistance claim, we affirm.
Viewed in the light most favorable to the jury’s verdict
(Drammeh v. State,
Bаrbara testified regarding “prior difficulties” with Martin. After a lawn mower was stolen from her shed, Barbara learned that Martin was trying to sell it in the neighborhood. Barbara confronted Martin, who admitted selling the lawn mower, and she then spoke with Martin’s mother. Thereafter, Martin came onto Barbara’s property and threatened her several times.
1. Martin contends that the evidence presented at trial was insufficient to support his conviction. We disagree.
Upon this Court’s review of a criminal defendant’s challenge to the sufficiency of the evidence supporting a conviction, 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.
(Punctuation omitted.)
Robinson v. State,
OCGA § 16-11-37 (a) provides, in relevant part: “A person commits the offense of a terroristic threat when he or she threatens to commit any crimе of violence . . . with the purpose of terrorizing another[,]” and that “[n]o person shall be convicted under this subsection on the uncorroborated testimony of the party to whom
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the threat is communicated.” The indictment accused Martin of threatening to commit “a crime of violence, to wit: murder upon the person of Barbara Hightower.” Accordingly, the State was required to prove two elements: (1) that Martin threatened to murder Barbara and (2) he did so with the purpose of terrorizing her.
Hall v. State,
With respect to the first element, Barbara testified that Martin threatened to kill her. Lucrеtia corroborated her mother’s testimony. As to the second element, whether Martin acted with intent to terrorize Barbara was an issue “peculiarly for the finder of fact.” (Punctuation and footnote omitted.)
Williams v. State,
Martin claims that the evidence does not support the verdict because Barbara did not call the police on the other occasions when Martin threatened her, thereby demonstrating that she was not actually frightened by his threats on the date in question. It was not incumbent on the State to prove that Martin “actually put fear in [Barbara’s] heart” because the crime of terroristic threats “focuses solely on the conduct of the accused. ...” (Citation and punctuation omitted.)
Hobby v. State,
2. Martin argues that the trial court erred in allowing the prosecutor to repeat her opening statement bеcause one of the selected jury members was tardy. This claim of error has been waived.
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After the jury was sworn and the prosecutor had almost completed her opening statement, one of the jurors walked into the courtroоm and sat in the jury box. At that point, the trial court realized that one of the individuals sitting in the jury box had not been selected as a juror or alternate and was apparently confused about where she was supposed to be. That individual was dismissed, and the trial court swore in the tardy juror and allowed the prosecutor to repeat her opening statement, after first confirming that neither the prosecutor nor Martin’s counsel objected. Having acquiesced in the trial cоurt’s decision on how to proceed, Martin cannot challenge it on appeal.
Brown v. State,
3. Martin argues that the trial court violated his due prоcess rights by instructing the jury that “[a] person commits terroristic threats when that person threatens to commit any crime of violence with the purpose of terrorizing another,” when the indictment specifically charged him with “ threaten [ing] to cоmmit a crime of violence: to wit: murder upon the person of Barbara Hightower.” Martin claims that the trial court’s charge created a reasonable possibility that the jury would convict him of a crime committed in a manner not chаrged in the indictment. We disagree. 1
A criminal defendant’s right to due process may be endangered when ... an indictment charges the defendant with committing a crime in a specific manner and the trial court’s jury instruction defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment. The giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unallegеd manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.
(Citations omitted.)
Harwell v. State,
Even if the record included evidence of other types of threats, Martin’s due process claim would fail nonetheless because “a reversal is not mandated where, as here, the charge as a whole limits the jury’s consideration to the specific manner of committing the crime alleged in the indictment.” (Punctuation and footnote omitted.)
Machado v. State,
4. Finally, Martin argues that his trial counsel was ineffective in failing to object (a) when the trial сourt allowed the prosecutor to repeat her opening statement and (b) to the trial court’s jury charge defining the offense of terroristic threats. We disagree.
To prеvail on a claim of ineffective assistance of trial counsel, [a criminal defendant] must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.
(Citation and punctuation omitted.)
Matthews v. State,
As no reasonable possibility exists that the trial court’s instruction on terroristic threats misled the jury (see Division 3, supra), Martin cannot establish that his trial counsel’s failure to object to that instruction resulted in prejudice.
Skaggs-Ferrell v. State,
Judgment affirmed.
Notes
Althоugh Martin’s counsel did not object to the complained-of instruction, we are authorized to review the trial court’s jury instructions for plain error, such as a due process violation of the type Martin alleges here. See
Milner v. State,
Milner, supra, in which we held that the jury charge on terroristic threats violated the defendant’s due process rights, is distinguishable. The indictment in Milner alleged that the defendant threatened to murder the victim, but the evidence showed that the defendant had threatenеd to hurt and kill the victim. Id. at 860. The trial court in Milner not only gave an instruction similar to the one here but also recharged the jury that “[a] person commits the offense of terroristic threat when he or she threatens to commit any crime of violence with the purpose of terrorizing another” when the jury asked to hear the definition of the offense again during deliberations. Id. The evidence at trial in this case did not show that Martin threatened a crime of violence besides murder, and the trial court did not recharge the jury in the face of potential juror confusion about the basis for convicting Martin.