Following a jury trial, Gloria Ann Tyner was convicted of one count of felony theft by shoplifting. Tyner appeals her conviction and the denial of her motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred in allowing a witness to testify as to an ultimate issue of fact; admitting cumulative evidence; denying her request for a continuance to obtain new counsel; sentencing her as a recidivist, pursuant to OCGA § 17-10-7, based on her past shoplifting convictions; improperly expressing its opinion as to the evidence and her guilt; and denying her ineffective-assistance-of-counsel claims. For the reasons set forth infra, we affirm.
Viewed in the light most favorable to the jury’s guilty verdict,
On June 12, 2010, only one week after the first incident, the same loss-prevention officer was monitoring the store’s video-surveillance cameras when he once again saw Tyner—whom he recognized because she was wearing the identical clothing she had worn a week earlier—approach the same display of designer handbags. After Tyner examined the display, the officer observed her concealing a handbag under one of the department store’s shopping bags, which she was carrying. This time, a security guard was on duty, and the officer told the guard to stand near the exit to prevent Tyner from leaving. Tyner apparently noticed the security guard, and thus, instead of immediately exiting, she walked around the store’s lingerie section for several minutes before attempting to conceal the handbag under a rack of clothes. She then proceeded toward the store’s exit but was stopped by the security guard, searched, and escorted to the store’s office to await the arrival of police. Thereafter, at the loss-prevention officer’s direction, one of the store’s assistant managers retrieved the bag that Tyner had concealed under the clothing rack, which contained a designer
Tyner was thereafter indicted on two counts of felony theft by shoplifting, with Count 1 alleging that she stole a purse from the store on June 5, 2010, and Count 2 alleging that she stole a purse and wallets from the store on June 12, 2010. During trial, the loss-prevention officer testified regarding his observation of Tyner’s actions on the subject dates, as well as the value of the stolen merchandise, and the police officer, who was dispatched to the store, testified regarding Tyner’s arrest. At the trial’s conclusion, the jury found Tyner not guilty on Count 1 but guilty on Count 2, and the trial court imposed a sentence of ten years to serve.
Thereafter, Tyner obtained new counsel and filed a motion for a new trial, alleging, inter alia, that her trial counsel provided ineffective assistance. And after conducting a hearing on the matter, during which Tyner and her trial counsel testified, the trial court denied Tyner’s motion. This appeal follows.
1. Tyner challenges the sufficiency of the evidence supporting her felony shoplifting conviction, arguing that the State failed to prove that any merchandise was actually taken or concealed, given that no merchandise was found on her person, in her bag, or in her car. This contention is without merit.
At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.
Additionally, OCGA § 16-8-14 (a) (1) provides, in relevant part, that
[a] person commits the offense of theft by shoplifting when he ... , with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole*559 or in part,. . . [clonceáis or takes possession of the goods or merchandise of any store or retail establishment.5
And shoplifting is punished “as a misdemeanor if the value of merchandise taken is $300 or less[, but] [t]he offense is a felony if the value of merchandise taken is greater than $300.”
Here, the evidence showed that Tyner took a purse and four wallets from the department store’s display and concealed the merchandise under a clothing rack after realizing that she was under surveillance and could not exit the store without being stopped and searched by the security guard. Tyner, nevertheless, contends that this evidence is insufficient because no merchandise was found on her person. However, “[wjhether the requisite intent is manifested by the circumstances is a question for the trier of fact, and, on review, this court will not disturb the factual determination unless it is contrary to the evidence and clearly erroneous.”
2. In the same enumeration of error challenging the sufficiency of the evidence, Tyner contends that the trial court erred in (1) allowing the department store’s loss-prevention officer to improperly narrate while the surveillance video was played for the jury and (2) admitting into evidence still photographs taken from the surveillance footage. We note that Tyner did not specifically enumerate either of these claims of error but instead has improperly used her brief to expand her enumerations of error.
Tyner also argues that still photographs taken from the surveillance video footage and shown to the jury during trial were cumulative and thus prejudicial. Again, we disagree. Generally, “[t]he admission of cumulative evidence is harmless.”
3. Tyner also contends that the trial court erred in denying her request for a continuance to hire new counsel, which she did not make until the day of her trial. We disagree.
It is well settled that
[a] motion for continuance, even to employ new counsel, is addressed to the sound discretion of the trial court, and this Court will not interfere unless it is clearly shown that the court abused its discretion. The trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require. Broad discretion must be granted trial courts on matters of continuances.14
And here, Tyner requested a continuance to obtain new counsel
even where a defendant expressed lack of confidence in trial counsel’s ability and disagreement with his advice and strategy, we have affirmed a trial court’s denial of a last-minute request for a continuance to retain new counsel if it appears that the defendant negligently failed to employ new counsel promptly or if it appears he is using the tactic for delay.15
Given the foregoing, we simply cannot say that the trial court abused its discretion in denying Tyner’s last-minute request for a continuance to hire new counsel.
4. Tyner also contends that the trial court erred in sentencing her as a recidivist pursuant to OCGA § 17-10-7. This contention is likewise without merit.
Immediately after the jury found Tyner guilty of felony shoplifting, the trial court held a sentencing hearing, during which the State’s prosecutor noted that Tyner had previous convictions of both felony and misdemeanor shoplifting and argued for the court to impose the maximum sentence. The State did not, however, argue that Tyner should be sentenced as a recidivist pursuant to OCGA § 17-10-7.
Thereafter, the trial court imposed a sentence of ten years to serve in confinement, which is, in fact, the maximum sentence for felony theft by shoplifting.
5. Tyner further contends that the trial court committed reversible error by expressing its opinion as to the evidence and her guilt,
OCGA § 17-8-57 provides:
It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held ... to be error and the decision in the case reversed, and a new trial granted in the court below ....
However, to constitute an improper comment under OCGA § 17-8-57, “the trial court’s statement must express an opinion about whether the evidence has proven a material issue in the case, whether a witness was credible, or whether the defendant was guilty.”
In the case sub judice, the loss-prevention officer stated during his testimony regarding the surveillance video footage that his store averaged one shoplifter per week. Tyner objected on relevancy grounds, but the trial court responded: “I think what he’s trying to do, he’s not saying that she is the person committing all these shopliftings, I think what he’s trying to do is show that he has some expertise in why he focused on this particular person.” Shortly thereafter, the loss-prevention officer, while still narrating the video, testified that Tyner was heading toward the store’s exit until she saw the security guard. Tyner again objected, arguing that the testimony was speculative, to which the trial court responded: “The jurors can see what she did. That’s his interpretation of it. They can reach their own conclusions.”
Tyner now argues that the trial court’s statements showed a bias in favor of the State and improperly opined that she was, in fact, the woman depicted in the video footage. But contrary to Tyner’s assertion, the trial court’s comments and use of the word “she” to describe the female depicted in the video footage did not amount to bias or to issuing an opinion as to identity. Indeed, the trial court’s comments were merely explanations as to why it did not agree with Tyner’s objections to the loss-prevention officer’s testimony. Importantly, “[a] ruling by the court on a point of law is not an expression of opinion; neither are remarks by the court explaining the court’s rulings.”
Tyner also argues that the trial court violated OCGA § 17-8-57 when it questioned the loss-prevention officer as to what kind of
6. Finally, Tyner contends that her trial counsel rendered ineffective assistance in a number of ways, namely in failing to (a) call the store security guard as an exculpatory witness, (b) have parts of the trial transcribed and file jury charges, (c) object to improper testimony, (d) assert a diminished-capacity defense, and (e) zealously represent her during sentencing. But based on our review of the record, we find that Tyner has not demonstrated that her conviction should be reversed due to ineffective assistance of counsel.
In order to prevail on her claims of ineffective assistance of counsel, Tyner “must show that counsel’s performance was deficient and that the deficient performance so prejudiced [her] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.”
(a) Failure to call an exculpatory witness. Tyner argues that her trial counsel provided ineffective assistance by failing to call the department store security guard as a witness. Specifically, she argues that the guard would have aided her defense by testifying that she did nothing wrong on the day she was arrested for shoplifting.
In considering this argument, we initially note that “[t]he decision on which defense witnesses will be called is a matter of trial strategy and tactics and does not usually constitute ineffective assistance of counsel.”
Here, in support of her claim that trial counsel’s failure to call the department store security guard as a witness constituted deficient performance, Tyner testified during her motion-for-new-trial hearing that on the day she was arrested, the department store security guard searched her person and car and, after finding nothing, apologized to her and told her that she had done nothing wrong. Tyner further testified that she informed her counsel about the security guard’s statement, but that her counsel made no effort to interview the guard or call him as a witness.
The security guard also testified at the motion-for-new-trial hearing, and although he confirmed that he was never contacted by Tyner’s trial counsel, Tyner’s appellate counsel did not ask the guard what his testimony would have been had he been called as a witness. Regardless, even if we were to assume that the security guard would have testified at trial as Tyner alleges, such testimony was not truly exculpatory. Neither the loss-prevention officer nor the State alleged that Tyner was apprehended with the stolen merchandise on her person or in her car. Rather, Tyner was accused of taking the designer handbag and wallets and then concealing them under a clothing rack when she realized she was under surveillance. Thus, the security guard’s alleged comments to Tyner in no way contradicted the State’s theory of the case. Accordingly, we find no error in the trial court’s conclusion that trial counsel’s failure to call the
(b) Failure to request transcription and to file jury charges. Tyner also claims that her trial counsel rendered ineffective assistance by failing to request that jury selection, opening statements, and closing arguments be transcribed and in failing to file specific jury charges. However, Tyner has not shown—or even argued—how this alleged failure prejudiced her or affected the outcome of her trial, and thus, she cannot demonstrate ineffective assistance on this ground.
(c) Failure to make objections. Tyner argues that her counsel rendered ineffective assistance by failing to object to improper testimony and other evidence. Specifically, she claims that her trial counsel performed deficiently by failing to object to opinion testimony offered by the loss-prevention officer, several instances of hearsay testimony, leading questions by the State, and cumulative evidence. However, as previously noted, “[i]n evaluating an attorney’s performance, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”
And here, during the motion-for-new-trial hearing, Tyner failed to question her trial counsel as to why he did not object to any of the testimony or evidence that she claims was improper. Given these circumstances, “any decision not to object is presumed to be a strategic one which will not support a claim of ineffective assistance of counsel.”
(d) Failure to present diminished capacity defense. Tyner also contends that her counsel rendered ineffective assistance by failing to investigate her claim that she suffers from several mental-health
During Tyner’s motion-for-new-trial hearing, Tyner’s appellate counsel asked her trial counsel whether Tyner informed counsel of her mental-health condition. Trial counsel responded: “I do not recall her telling me that.” Later during the hearing, Tyner insisted that she had informed trial counsel regarding her condition. Nevertheless, “the trial court had every right to disbelieve this self-serving testimony in favor of counsel’s testimony.”
(e) Failure to adequately contest sentencing. Tyner also contends that her trial counsel rendered ineffective assistance by failing to contest her recidivist sentencing and by failing to present mitigation evidence on her behalf during the sentencing hearing. We disagree.
First, as noted supra, the trial court did not sentence Tyner pursuant to the recidivist statute. As such, any claim that Tyner’s trial counsel performed deficiently by failing to contest such sentencing is wholly without merit.
Moreover, while we agree with the trial court that Tyner failed to demonstrate that her trial counsel performed deficiently, even if we were to assume such deficiencies, considering their collective prejudicial effect, we conclude as a matter of law that the absence of those deficiencies would not in reasonable probability have changed the outcome of Tyner’s trial.
Judgment affirmed.
Notes
See, e.g., Goolsby v. State,
See, e.g., English v. State,
Joiner v. State,
Miller v. State,
OCGA § 16-8-14 (a) (1).
Raszeja v. State,
Foster v. State,
See Simmons v. State,
See Manley v. State,
Wright v. State,
Wright,
Id. (punctuation omitted).
Wright v. State,
Thornton v. State,
Id. (punctuation omitted); see Jordan v. State,
See Thornton,
See OCGA § 16-8-14 (b) (2) (“A person convicted of the offense of theft by shoplifting, as provided in subsection (a) of this Code section, when the property which was the subject of the theft exceeds $300.00 in value commits a felony and shall be punished by imprisonment for not less than one nor more than ten years.”).
Raszeja,
Artis v. State,
Id. (punctuation omitted).
Dickens v. State,
See State v. Gardner,
Chapman v. State,
Chapman,
Id.; see also Henderson v. State,
Henderson,
Goss v. State,
Crawford v. State,
Id. (citation omitted).
See id. at 784-85 (2) (holding that counsel did not perform deficiently by failing to call witness whose testimony would not have been truly exculpatory).
See Wright v. State,
Slaughter v. State,
Higginbotham v. State,
Id. at 190-91 (5) (a) (punctuation omitted).
Wilson v. State,
Pattillo v. State,
See id. (holding that trial court did not have to believe defendant’s testimony that he identified an alibi witness but that his trial counsel failed to interview that witness).
See Ventura v. State,
Kendrick v. State,
See Carrie v. State,