SECOND DIVISION MERCIER, C. J., MILLER, P. J., and HODGES, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
October 12, 2023
In the Court of Appeals of Georgia A23A1029. JOHNSON v. THE STATE.
MILLER, Presiding Judge.
Marquice Johnson seeks review of his conviction and sentence after a Sumter
County jury found him guilty of first-degree burglary. On appeal, he argues that (1)
the evidence was insufficient to support his conviction because the evidence failed
to show that he entered the victim’s residence and it failed to exclude the reasonable
hypothesis that someone else committed the burglary; (2) his trial counsel was
ineffective for numerous reasons; (3) the trial court erroneously admitted photos, text
messages, and statements by Johnson’s mother; and (4) the cumulative effect of these
errors warrants a new trial. Upon considering the record and the relevant law, we
reject all of these allegations of error and affirm Johnson’s conviction, sentence, and
the denial of his motion for new trial. Viewed in the light most favorable to the jury’s verdict,1 the evidence at trial
showed that Ashley Goodman resided on Clara Drive in Sumter County, Georgia.
One evening in May 2014, Goodman was with her friend Tara Hawkins and some
others at a get-together in a nearby portion of their neighborhood when they noticed
Johnson and some of his friends there as well. Goodman and Hawkins both knew
Johnson from around the neighborhood and knew him by the nickname “Laid-back.”
Later in the evening, Goodman and Hawkins returned to Goodman’s house,
and when they arrived, Goodman noticed that her daughter’s bedroom window was
shattered. Goodman looked through the window and saw someone looking around the
room. Goodman attempted to enter the house through the back door, but “it was
jammed, like somebody had tried to kick it in.” When Goodman circled around to the
front door, someone “burst out the front door,” and Goodman chased the individual
down the street. The individual fled into the woods, at which point Goodman stopped
the pursuit. As Hawkins came up to the house, she saw Johnson run out of the house.
Hawkins chased after Johnson until she saw him drop his phone, at which point she
stopped running and picked up the phone. The two women checked the path where
Johnson ran and also found an iPod.
1 Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2 When Goodman surveyed her house afterward, she found that it was
“wrecked.” Multiple items in her daughter’s room were missing, and food kept in her
kitchen had been eaten. A 50-inch television set had been taken off a stand and placed
on the sofa, and two other televisions and her mother’s wedding band had been
stolen. Goodman and Hawkins went through the contents of the phone that Johnson
dropped and saw several photos of Johnson as well as text messages that indicated
that the phone belonged to him. Law enforcement searched the house, determined that
the shattered window was the point of entry into the home, and retrieved the iPod and
phone. Law enforcement retrieved a photograph from the iPod of a black male and,
after learning of Johnson’s name from Goodman, conducted a search of Johnson’s
Facebook page to discover that the photograph depicted on the iPod was of Johnson.
A grand jury indicted Johnson on one count of first-degree burglary, OCGA
§ 16-7-1 (b). The jury found Johnson guilty, and the trial court sentenced him to 20
years’ imprisonment. Johnson timely filed a motion for new trial, which the trial court
denied after a hearing. This appeal followed.
1. In two related enumerations of error, Johnson argues that the evidence was
insufficient to convict him of burglary because the evidence was insufficient to
establish that he had entered Goodman’s house and because the evidence failed to
3 exclude other reasonable hypotheses beyond a reasonable doubt. We conclude that
the evidence was sufficient to sustain his conviction.
When reviewing a defendant’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.
(Citation omitted.) Powell v. State, 310 Ga. App. 144 (712 SE2d 139) (2011).
“A person commits the offense of burglary in the first degree when, without
authority and with the intent to commit a felony or theft therein, he or she enters or
remains within an occupied, unoccupied, or vacant dwelling house of another[.]”
OCGA § 16-7-1 (b) (2014). Additionally, we have been clear that
burglary does not require a completed theft, but merely the intent to commit a theft. The presence or lack of criminal intent is for the jury to decide based on the facts and circumstances proven at trial. An intent to steal may be inferred when the evidence shows an unlawful entry into the building of another where valuable goods are stored or kept inside.
(Citation and punctuation omitted.) Villegas v. State, 334 Ga. App. 108, 109-110 (1)
(778 SE2d 363) (2015). Furthermore, although mere presence at the scene of a crime
4 is insufficient to prove guilt, “criminal intent may be inferred from presence,
companionship, and conduct before, during and after the offense.” (Citation omitted.)
Wood v. State, 300 Ga. App. 674, 676 (686 SE2d 319) (2009).
Here, Goodman testified that she came home on the evening in question and
found her house was “wrecked.” Items in her daughter’s room were missing, and food
kept in her kitchen had been eaten. A 50-inch television set had been taken off a stand
and placed on the sofa, and two other televisions and her mother’s wedding band had
been stolen. Goodman testified that her back door appeared to have been kicked in,
and both she and law enforcement observed that a window on the side of the house
was shattered. Hawkins testified that, when she and Goodman arrived at the house,
she saw Johnson “com[e] out of the house” and flee the scene and that Johnson
continued to flee after Hawkins pursued him. Hawkins knew Johnson from the
neighborhood and “recognized [him] immediately.” This evidence was sufficient to
establish that Johnson had entered into Goodman’s house without authority and that
he intended to commit a theft as required to sustain a conviction for burglary. See
Westmoreland v. State, 281 Ga. App. 497, 499-500 (2) (636 SE2d 692) (2006)
(evidence sufficient to establish burglary where evidence showed that the window
frame to the home had been “bent,” eyewitnesses saw the defendant on the premises,
5 several valuable items had been moved or disconnected, and the defendant fled the
scene once police had been called).
We also reject Johnson’s argument that the evidence was insufficient because
it failed to exclude the reasonable hypothesis that the other man who was found in
Goodman’s home was the culprit of the offense. First, we note that the State’s case
was not wholly circumstantial because of Hawkins’ testimony that she observed
Johnson running out Goodman’s home as she approached the home. See Gadson v.
State, 303 Ga. 871, 874 (2) (815 SE2d 828) (2018) (explaining that “direct evidence
is that which is consistent with either the proposed conclusion or its opposite,
whereas circumstantial evidence is that which is consistent with both the proposed
conclusion and its opposite,”and concluding that the defendant’s case was
circumstantial where there was no direct evidence placing the defendant at the
apartment at the time of the burglary.) (citation and punctuation omitted). Still,
to warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. Nevertheless, the state is not required to remove every possibility of innocence of the crime charged, and it is not required to disprove bare possibilities that the crime could have been committed by someone else. Questions as to the reasonableness of hypotheses are
6 generally to be decided by the jury which heard the evidence. Where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.
(Citations and punctuation omitted.) Wood, supra, 300 Ga. App. at 677.
Here, Johnson specifically points to evidence at trial that showed that the
fingerprints of someone named William Moore were found on a television set in
Goodman’s house. As stated above, however, Hawkins testified that, when she and
Goodman arrived at the house, she saw Johnson “com[e] out of the house,” she
“recognized him immediately,” and he fled the scene. And immediately after Johnson
was seen exiting the house, Goodman found her house was “wrecked” as described
above.
Thus, we conclude that the evidence was sufficient to establish that Johnson
was a perpetrator of the offense, and, accordingly, we conclude that the evidence was
sufficient to support Johnson’s burglary conviction.2
2 To the extent Johnson appears to argue that the trial court erred by denying his motion for new trial based on the general grounds, we note that “[a]ppellate courts do not sit as arbiters of the general grounds, which are solely within the discretion of the trial court.” (Citation and punctuation omitted.) Smith v. State, 354 Ga. App. 782,
7 2. Johnson next argues that his trial counsel provided ineffective assistance in
a variety of respects. Upon a close review of the record, we determine that these
arguments fail and that Johnson has not shown that his trial counsel was ineffective.
[I]n general, when a defendant claims that his trial counsel was ineffective, he has the burden of establishing that (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. And when a trial court determines, as the court below did here, that a defendant did not receive ineffective assistance, we will affirm that decision on appeal unless it is clearly erroneous.
(Citations and punctuation omitted.) Pepe-Frazier v. State, 331 Ga. App. 263 (770
SE2d 654) (2015). Additionally, if a defendant fails to establish one of the prongs,
“we need not examine the other.” Robinson v. State, 308 Ga. 543, 553 (3) (842 SE2d
54) (2020).
(a) Johnson first argues that his trial counsel was ineffective for failing to
object to hearsay evidence offered by the lead investigating officer, Allison Goodall,
which was used to help identify Johnson as a perpetrator of the burglary. We
conclude that Johnson cannot show prejudice from this alleged failure to object.
784 (2) (841 SE2d 444) (2020).
8 “Hearsay means a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” (Punctuation omitted.) OCGA § 24-8-801 (c). “Hearsay shall not be
admissible” unless it falls within a specific statutory exemption. OCGA § 24-8-802.
Here, in the course of explaining her investigation of the case, Officer Goodall
testified that Goodman and Hawkins had told her to come pick up the phone, at which
point she testified that “they told me at that time that’s who it was was [sic], Marquice
Johnson. And they said that they had recognized him when he was running through
the woods.”
Putting aside the question of whether this statement is objectionable hearsay,
we note that Hawkins testified at trial that she and Goodman told law enforcement
that Johnson was the perpetrator. Johnson did not object to this testimony, nor does
he argue on appeal that this testimony was somehow improper. The testimony by
Officer Goodall is therefore cumulative of other evidence in the record, and so
Johnson cannot show that he was prejudiced so as to support an ineffective assistance
claim. See Payne v. State, 314 Ga. 322, 330 (3) (b) (877 SE2d 202) (2022) (no
prejudice shown from alleged failure to object to hearsay testimony because the same
fact was presented to the jury through other, uncontested evidence).
9 (b) Johnson next argues that trial counsel was ineffective for failing to object
to the admission of a photo from Johnson’s Facebook page which Goodall allegedly
used to identify Johnson. He argues that the State failed to establish the proper
foundation for its authentication.
“The requirement of authentication or identification as a condition precedent
to admissibility shall be satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” OCGA § 24-9-901 (a).
“[D]ocuments from electronic sources such as the printouts from a website like
Facebook are subject to the same rules of authentication as other more traditional
documentary evidence and may be authenticated through circumstantial evidence.”
(Emphasis and citations omitted.) Johnson v. State, 348 Ga. App. 667, 675 (1) (b)
(824 SE2d 561) (2019). “[T]here are no special rules under Georgia law governing
the authentication of electronic documents or communications. . . . [O]nce the party
seeking to authenticate a document presents a prima facie case that the proffered
evidence is what it purports to be, the evidence is admitted and the ultimate question
of authenticity is decided by the jury.” (Citations and punctuation omitted.) Id.
The photograph in question was a screenshot that Officer Goodall took from
Johnson’s Facebook page. The photograph depicted Johnson holding an iPod which
10 matched the iPod that was found at the scene. The photograph listed the name
“Marquice Johnson” at the top of the page, and a Facebook URL was listed at the
bottom of the page. Officer Goodall testified that the photograph submitted into
evidence was the same picture that she found on Johnson’s Facebook page and that
the picture was a fair and accurate description of what she found on her computer.
The State therefore properly authenticated the photograph, and so counsel was not
deficient for failing to object on this basis. See Pierce v. State, 302 Ga. 389, 396 (2)
(a) (807 SE2d 425) (2017) (photos of text messages sent by the defendant were
properly authenticated when an investigating officer testified that photos he took of
the phone’s screen were a fair and accurate representation of the messages that
appeared on the phone to which the messages were sent); see also Wesley v. State,
286 Ga. 355, 356 (3) (a) (689 SE2d 280) (2010) (“[F]ailure to make a meritless
objection cannot be evidence of ineffective assistance[.]”) (citation omitted).
(c) Johnson also argues that his trial counsel was ineffective for failing to
object to multiple instances where Officer Goodall examined her case notes to refresh
her memory, arguing that such testimony reflected a lack of personal knowledge
because Officer Goodall was essentially answering questions directly from her notes
and that her testimony did not conform with the requirements for allowing refreshed
11 recollection testimony. The transcript shows that when Officer Goodall referred to her
notes, there was a break in her testimony reflecting that she was looking at her notes
before she continued with her answer. At the motion for new trial hearing, the trial
court specifically noted that it would not have allowed a witness to read directly from
her file to the jury. More importantly, Johnson does not argue how Officer Goodall’s
testimony or the fact that she was able to refresh her memory from her own notes to
answer questions caused him prejudice, nor does he specify what evidentiary
mechanism was lacking for which trial counsel should have objected. See generally
OCGA § 24-6-612 (a) (providing that a witness may “use[] a writing to refresh [her]
memory while testifying[.]” in certain circumstances). This enumeration of error
therefore fails.
(d) Johnson next argues that his trial counsel was deficient by soliciting other
hearsay evidence from Officer Goodall. At trial, Johnson’s counsel asked Officer
Goodall if she had talked to “other witnesses” that night, and Officer Goodall
responded that she had spoken to a neighbor who told her that he had “seen Ms.
Goodman chasing a black male that matched the description that Ms. Goodman gave
us. He described him the same way, clothing and all.” The neighbor who gave this
statement to Officer Goodall did not testify at trial.
12 Even assuming that this testimony was inadmissible hearsay, Johnson cannot
show that he was prejudiced by this statement. The record is clear that the
unidentified man that Goodman pursued was not Johnson but a separate individual.
Thus, this statement by the neighbor did not implicate or identify Johnson as a
perpetrator of the offense, and we therefore conclude that there is no reasonable
probability that counsel’s solicitation of this testimony affected the outcome of the
trial. Cf. Pepe-Frazier, supra, 331 Ga. App. at 269-270 (3) (a) (ineffective assistance
claim failed when defendant failed to show prejudice from trial counsel’s failure to
object to alleged hearsay statements).
(e) Johnson further argues that trial counsel was ineffective for failing to object
to the admission of the cell phone and iPod for lack of a proper foundation because
they were admitted through Goodman, who did not testify as to the chain of custody
of the items or that she recognized them from particular distinct characteristics.
“Items of evidence which are distinct and recognizable physical objects, such that
they can be identified by the sense of observation, are admissible into evidence
without the necessity of showing a chain of custody.” (Citation omitted.) English v.
State, 304 Ga. App. 285, 288 (3) (696 SE2d 106) (2010). We have previously held
that “a cell phone is [such] a distinct item that does not require proof of the chain of
13 custody.” Id. In this case, Goodman testified that the phone and the iPod were both
the same items that she and Hawkins found on the night of the burglary before the
electronics were admitted into evidence. Given that the Evidence Code allows for
authentication of evidence by “[t]estimony of a witness with knowledge that a matter
is what it is claimed to be,” OCGA § 24-9-901 (b) (1), we cannot say that any
objection on the basis of authentication would have had merit, and so trial counsel
was not ineffective for failing to make an objection that would have been
unsuccessful.3
(f) Johnson finally argues that his trial counsel was ineffective for allowing the
cell phone and iPod to go out with the jury during deliberations without a limiting
instruction telling them not to access any photos or messages not addressed at trial.
He argues that the jury’s unfettered access to such electronic devices is tantamount
to allowing them to conduct an independent investigation of the crime by reviewing
text messages, photos, and other potentially incriminating evidence on the devices.
Johnson, however, has failed to point to any specific evidence on these devices that
he alleges was improperly prejudicial, nor has he pointed to any evidence that the jury
3 Even so, we note that Officer Goodall also identified both the phone and the iPod, and so we cannot say that Johnson showed that any lack of proper authentication of the phone or iPod prejudiced him.
14 did access the phone or iPod during its deliberations. Johnson has thus failed to show
that the outcome of the trial would have been different had trial counsel requested a
limiting instruction, and thus this claim of ineffective assistance fails. Cf. Griffin v.
State, 311 Ga. 579, 581-584 (2) (858 SE2d 688) (2021) (defendant failed to show that
it was plain error to allow a cell phone to go back with the jury without a limiting
instruction when defendant failed to present evidence about the contents of the phone
and failed to point to any potentially extraneous incriminating or prejudicial
information on the phone); Drammeh v. State, 285 Ga. App. 545, 548-549 (2) (646
SE2d 742) (2007) (trial court did not abuse its discretion in allowing the jury to
consider the entire contents of a cell phone during deliberations).
Accordingly, all of Johnson’s claims of ineffective assistance fail.
3. Johnson next argues that the trial court erred by making two evidentiary
rulings relating to the phone. He argues that the trial court erred by (1) overruling his
objection to hearsay testimony from Hawkins that Johnson’s mother told them that
the phone was his; and by (2) overruling his objection for hearsay and the best
evidence rule to Goodman testifying as to photographs and a text message she found
on the phone.
15 Pretermitting whether the trial court erred by admitting this evidence at trial,
because there was substantial other evidence identifying Johnson as a perpetrator of
the offense and as the owner of the phone, any potential error was harmless.4 Hawkins
testified that she knew Johnson from the neighborhood, “recognized [him]
immediately[,]” and then personally saw him drop the phone during the chase.
Additionally, although Johnson objected to Goodman testifying about the contents
of the phone, Hawkins also testified without objection that there were pictures of the
defendant on the phone and that a text message was sent from someone to the phone
asking for Johnson.5 Finally, Officer Goodall testified that law enforcement was able
to determine that the phone belonged to Johnson. Given this substantial evidence
showing that the phone belonged to Johnson, we conclude that any potential error in
4 “[I]n reviewing an evidentiary ruling, this Court must determine whether that ruling constituted an abuse of the trial court’s discretion.” Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d 261) (2014). “[T]he test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict[.]” (Citation omitted.) Dennard v. State, 305 Ga. 463, 466 (2) (826 SE2d 61) (2019). 5 In a footnote, Johnson argues that his trial counsel was ineffective for failing to renew his objection for Hawkins’ testimony. Johnson, however, did not raise this claim of ineffective assistance below despite having the opportunity to do so. Accordingly, because Johnson “failed to raise the claim at the earliest practicable moment, he failed to preserve this claim for appellate review.” (Citation and punctuation omitted.) Golson v. State, 306 Ga. 101 (2) (829 SE2d 74) (2019).
16 these two evidentiary rulings was harmless and not reversible error. See Armstrong
v. State, 310 Ga. 598, 604-605 (3) (852 SE2d 824) (2020) (allegedly erroneous
hearsay and best evidence rulings did not constitute reversible error when
“substantial, cumulative, legally admissible evidence of the same fact” was
introduced such that it is clear beyond a reasonable doubt that the allegedly
erroneously admitted evidence did not contribute to the verdicts).
4. Finally, Johnson argues that the cumulative effect of the errors by trial
counsel and the trial court warrants a new trial. “To establish cumulative error,
[Johnson] must show that at least two errors were committed in the course of the trial
and considered together along with the entire record, the multiple errors so infected
the jury’s deliberation that they denied him a fundamentally fair trial.” (Citation and
punctuation omitted.) Perrault v. State, 316 Ga. 241, 248 (3) (887 SE2d 279) (2023).
Even considering the cumulative effect of the presumed errors that we determined
above were harmless or non-prejudicial by themselves, we cannot say that, taken
together, the result of the trial would have been different or that Johnson was denied
a fundamentally fair trial because of these errors. See Jones v. State, 314 Ga. 605,
616-617 (5) (878 SE2d 505) (2022) (the combined prejudicial effect of an allegedly
17 partial juror and two unrelated evidentiary rulings was not sufficient to warrant a new
trial).
Accordingly, we affirm Johnson’s conviction, sentence, and the denial of his
motion for new trial.
Judgment affirmed. Mercier, C. J., and Hodges, J., concur.