Nаncy McMahon appeals her conviction for making a false statement. Finding that the state did not impermissibly refer to plea negotiations and that there was sufficient evidence to establish that she made her statement to employees of an agency of state, county, city, or other government, we affirm the judgment of conviction. We remand the casе to the trial court for a hearing on McMahon’s claim of ineffective assistance of trial counsel.
Viewed in the light most favorable to the jury’s verdict,
Berry v. State,
Stephens asked McMahon if the police had made any prior calls to her house for similar incidents, and McMahon responded no. In fact, the police had been dispatched to the house for a domestic violence incident in 2005, and McMahon had spoken with Investigator Jennifer Wright about the incident. McMahon was charged with making a false statement about a matter within the jurisdiction of a government agency, telling Stephens that law enfоrcement had not responded to her house for a domestic complaint before February 28, 2008.
At trial, McMahon testified that she had had no recollection of the 2005 call or sрeaking with Wright about the incident. Therefore, she testified, she did not knowingly make a false statement at the April 7, 2008 meeting.
1. McMahon argues that the trial court should have granted a mistrial because the state improperly introduced evidence of plea negotiations. While Hart was questioning Stephens, she asked about a telephone conversation with McMahon. Stephens explained that the conversation occurred after the April 7, 2008 meeting, while Hart had McMahon on speaker phone. Stephens testified that he heard McMahon say that she did not recall the prior domestic violence incident. Hart then asked Stephens, “Did the defendant ask you not to or ask me not to prosecute her for these chаrges?” Stephens responded, “She did.”
(a) McMahon argues that this testimony violates OCGA § 24-3-50, which, she contends, makes inadmissible any statements made during the course of plea negotiations. But the statute provides, “[t]o make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” We have interprеted the statute to mean that “confessions made during plea negotiations with the prosecutor are not admissible, because they are made in the hope that the defendant will get a better deal than he would otherwise. [Cit.]”
Gray v. State,
Here, however, the record does not show that McMahon made her request in the context of plea negotiations. And McMahon’s request not to be prosecuted is not a confession.
A confession is a voluntary statement made by a person charged with the commission of a crime wherein he acknowledges himself to be guilty of the offense charged . . . *294 [and] implies an admission of every essential element necessary to establish the crime wherewith the defendant is charged
(Citation and punctuation omitted.)
Carter v. State,
McMahon cites
Wilson v. State,
(b) McMahon also contends that OCGA § 17-8-75 required the trial court to rebuke Hart for asking the question and failing that, to grant a mistrial. That statute provides:
Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.
As discussed above, Hart’s question was nоt an impermissible reference to a confession made during plea negotiations. And the trial court complied with the statute by instructing the jury that Hart’s question was not evidence. See
Gutierrez v. State,
2. McMahon argues that her conviction must be reversed because the state failed to prove an essential element of the offense, namely that the office of the district attorney is a government *295 agency. OCGA § 16-10-20 provides:
A person who knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state shall, upon conviction thereof, be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.
(Emphasis supplied.) McMahon concedes that she made the false statement to еmployees of the district attorney’s office while discussing her husband’s pending criminal charge. She contends, however, that no evidence showed that the district attorney’s office is an agency of state, county, city, or other government.
When a criminal defendant challenges the sufficiency of the evidence supporting his or her 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 rеasonable doubt. It is the function of the jury ... to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence.
(Citations and punctuation omitted; emphasis in original.)
Wilson v. State,
3. Finally, McMahon argues that she received ineffective assistance of counsel at trial because trial counsel failed to move to disqualify the assistant district attorney, who was a witness to the false statement, and because trial counsel failed to move for a mistrial when Stephens testified about plea negotiations.
Appellate counsel entered an appearance on McMahon’s behalf after the trial court denied McMahon’s motion for new trial and after trial counsel filed a notice of appeal from the judgment of conviction. This appeal, therefore, is McMahon’s first opportunity to raise an ineffective assistance оf trial counsel claim. “Generally, when the
*296
appeal presents the first opportunity to raise an ineffective assistance claim, we remand the case to the trial court for an evidentiary hearing on the issue.” (Citation and punctuation omitted.)
Pinkston v. State,
Wе hold, however, that McMahon’s claim that trial counsel was ineffective for failing to move for a mistrial because of the reference to plea negotiations is due to be decided as a matter of law on the existing record. Our holding in Division 1 — that the reference to McMahon’s request that she not be prosecuted did not entitle McMahon to a mistrial — means that trial counsel was not ineffective for failing to move for a mistrial on this ground. Consequently, McMahon is not entitled to raise this ground on remand. See
Gomillion v. State,
Judgment affirmed and case remanded with direction.