A jury found Reginald D. Thomas guilty of one count of malice murder and two counts of aggravated assault. The trial court entered judgments of conviction on the jury verdicts. For the murder, the court sentenced Thomas to life imprisonment and, for the aggravated assaults, it sentenced him to two consecutive terms of twenty years. Thomas appeals. 1
1. Construed most favorably for the State, the evidence is as follows: Thomas asked Delores Foster to rent a vehicle and, after co-defendant Damian Owens paid her, she rented a Mitsubishi for them. Subsequently, David Colbert and his companions exchanged words with some men in a Mitsubishi who threatened to shoot and made menacing gestures. However, someone in Colbert’s group shot at the Mitsubishi first and, shortly thereafter, Thomas sought medical attention at a hospital for a gunshot wound to his arm. At the hospital, Thomas gave a false name and told a police officer that he had been caught in a crossfire while riding in the rented vehicle. *136 Within an hour after Thomas left the hospital, someone fired about twelve rounds from a nine-millimeter pistol at a vehicle occupied by Colbert and his two companions. Colbert was killed and his two companions were injured. When Ms. Foster, who rented the Mitsubishi for Thomas and Owens, inquired about the bullet holes and other damage to the vehicle, Owens told her that “they” were caught in a crossfire. Just over a week later, Sir George Candy Franklin was driving a car with Thomas and Owens in the back seat and an older man in the front seat. When Franklin exited the car at a convenience store, he told East Point Police Officer Thomas Cherry that Thomas and Owens had kidnapped him at gunpoint. After asking Owens to exit the car, Officer Cherry removed a .357-caliber pistol from under Owens’ belt. A nine-millimeter pistol was found under the car seat, but near the rear. The nine-millimeter pistol was turned over to the firearms examiner who determined that the bullets which caused the death of Colbert and injured Colbert’s two companions were fired from that pistol. Owens admitted to police that he owned the gun which Officer Cherry took from him, but Owens denied possession of the nine-millimeter pistol.
Thomas contends that the nine-millimeter pistol did not connect him to the crimes because there were other persons in the car driven by Franklin. However, Owens was the only other person in the car who had any apparent motive to commit the crimes and Owens was armed with another gun. Taken as a whole, the evidence is sufficient to authorize a jury to find Thomas guilty as a party to the crimes beyond a reasonable doubt and to the exclusion of every reasonable hypothesis save that of guilt.
Jackson v. Virginia,
2. Thomas urges that the prosecutor engaged in misconduct because, before the trial started, he had reason to believe that two other people were actually the shooters. It is immaterial whether Thomas was the actual shooter if he was, in fact, a party to the shootings. As discussed in Division 1, the evidence of Thomas’ guilt as a party to the crimes was sufficient. There is no showing that any of the evidence used to establish Thomas’ guilt was perjured. See
Johnson v. State,
3. Thomas contends that the prosecutor also engaged in misconduct because, during his opening statement, he referred to the nine-millimeter pistol as stolen but subsequently presented no evidence in that regard. Thomas neither objected at trial nor sought a curative instruction.
Poteat v. State,
Thomas further urges that, although the prosecutor said that someone would testify as to whether the District Attorney’s office intended to charge Thomas with kidnapping, no one so testified. The record shows that the prosecutor did not state what he expected the testimony to prove and, furthermore, that the prosecutor did present evidence that Franklin claimed that he had been kidnapped. Thus, we find no error.
4. Thomas argues that the prosecutor made numerous unfair and improper remarks. The prosecutor’s references in opening statement and closing argument to Thomas and his co-defendant as “partners in crime,” and “gangsters,” who committed a cowardly, despicable act, were reasonable inferences from the evidence.
Simmons v. State,
5. Thomas enumerates as error the trial court’s admission of evidence that he had been shot earlier on the night in question. Thomas urges that this was evidence of a similar transaction or prior difficulty which the trial court should not have admitted without the requisite notice and hearing. Evidence that an accused is the victim, rather than the perpetrator, of a previous assault cannot raise an inference that he or she “is more likely to have committed the crime for which he is on trial.”
Barrett v. State,
6. Thomas contends that the denial of his motion for severance and the admission of Owens’ statement were erroneous under
Bruton v. United States,
7. Thomas contends that the trial court erred by failing to grant a mistrial or give curative instructions when the prosecutor called Franklin as a witness, knowing that Franklin would invoke the Fifth Amendment. The record shows that Franklin asserted his right to remain silent on one question only and later changed his mind. There is no showing that the prosecutor knew that Franklin would invoke the Fifth Amendment, and defense counsel argued only that the prosecutor should have known that Franklin would do so. Defense counsel undertook a thorough cross-examination. Under these circumstances, we find no reversible error.
Parrott v. State,
8. Thomas enumerates as error the trial court’s admission of the statement he made following his arrest for kidnapping. Thomas’ contention that his statement was inadmissible because of the State’s non-compliance with former OCGA § 17-7-210 was not raised in the trial court and will not, therefore, be considered on appeal.
Huguley v. State,
9. Franklin’s testimony concerning the circumstances of Thomas’ arrest for kidnapping was admissible, “ ‘even though it may incidentally show the commission of another crime. (Cits.)’ [Cits.]”
Moulder v. State,
10. Thomas enumerates as error the trial court’s admission of the nine-millimeter pistol into evidence, contending that the chain of custody of the weapon was not established and that the officer who found the pistol did not identify the pistol with certainty. A weapon may be “admissible if the identification is sufficient to allow the jury to decide, under the evidence relative to identification, whether it is the identical weapon used by the defendant. [Cits.]”
Dunn v. State,
11. The trial court stated to the jurors that they would be excused for the weekend prior to the defense presenting its case, if the defense desired to present a case. Although Thomas urges that the trial court erred in failing also to tell the jurors that the defense had no obligation to present a defense, the record shows that the trial court did indicate that the defendants were not required to present a defense and at no point did the court imply that they have any obligation to present a defense. Accordingly, Thomas’ contention is without merit. See
Earnest v. State,
12. Thomas further contends that his trial counsel provided ineffective assistance of counsel in numerous particulars. Although appellate counsel represented Thomas at the hearing on the motion for new trial and raised this issue, she did not call trial counsel or present any other evidence. In the absence of contrary evidence, defense counsel’s actions are presumed to be part of trial strategy.
Earnest v. State,
supra at 496-497 (5);
Scott v. State,
13. Thomas urges that the trial court erred in failing to give a curative instruction after an alibi witness admitted on cross-examination her prior conviction, but the prosecutor introduced no certified copy thereof. The failure to introduce a certified copy of an impeaching prior conviction is subject to a “best evidence” objection, not a request for curative instructions, and such objection may be waived.
McIntyre v. State,
14. Thomas complains of several portions of the prosecutor’s closing argument, including references to the message that a “not guilty” verdict would send, to the victim’s absence on Father’s Day, and to use of this case as a vehicle for establishing the principles of right and wrong. We do not find that these remarks either improperly influenced the jury’s passions and prejudices or diverted attention from the evidence.
McClain v. State,
Thomas contends that the prosecutor erroneously commented on the credibility of witnesses. While a prosecutor may not urge his
personal
belief as to the credibility of witnesses, he may ask the jury to deduce conclusions about credibility from proven facts.
Alexander v. State,
Thomas further contends that the prosecutor repeatedly misstated evidence regarding the nine-millimeter gun and what defense counsel said about it. Considered in context, the challenged remarks were reasonable inferences from the evidence.
15. The instruction regarding testimony of an accomplice did not
*141
state or imply the trial court’s belief that Thomas was a participant in the crimes charged.
See Ladson v. State,
16. Thomas contends that the trial court erred by failing to instruct the jury to distinguish between malice murder and felony murder. The verdict clearly established that the jury found Thomas guilty of both malice murder and felony murder. As the trial court properly entered its judgment of conviction and sentence only on the malice murder verdict, we find no error.
Malcolm v. State,
17. Although Thomas was indicted for aggravated assault by use of a handgun, the trial court recited the entire Code section on aggravated assault in its charge to the jury, thereby instructing that intent to murder, rape or rob are alternative methods by which a person commits aggravated assault. Thomas enumerates the giving of this charge as error.
There was no evidence of any intent to rape or rob. Therefore, the giving of the entire Code section on aggravated assault did not mislead the jury or violate Thomas’ due process rights.
Dukes v. State,
18. Thomas contends that the trial court erred by omitting one of the jurors from the poll conducted after the verdict. Because defense counsel was present during the polling of the jury and failed to object to the omission, there is no reversible error.
Hunter v. State,
19. Thomas’ contention that the trial court erred by failing to advise him regarding his right to appeal is moot, because the trial court granted this out-of-time appeal.
Judgments affirmed.
Notes
The crimes occurred on February 20, 1994 and the grand jury indicted Thomas on April 15,1994. On June 14,1995, the jury returned its guilty verdicts and, the following day, the trial court entered its judgments of conviction and sentences. On July 2, 1996, the trial court granted Thomas’ motion for out-of-time appeal. He filed a motion for new trial on July 31,1996, and amended his motion on October 17,1996. The trial court denied the motion for new trial on December 16,1996. Thomas filed his notice of appeal on December 31,1996 and the case was docketed in this Court on February 5, 1997. The parties presented oral argument on April 14,1997.