THIRD DIVISION MCFADDEN, C. J., DOYLE, 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
DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.
October 26, 2020
In the Court of Appeals of Georgia A20A1028. PRESCOTT v. THE STATE.
HODGES, Judge.
Following a jury trial, the Superior Court of Fulton County entered a judgment
of conviction against Shavon Jabbar Prescott for two counts of aggravated sodomy
(OCGA § 16-6-2), three counts of aggravated assault (family violence) (OCGA § 16-
5-21) (2013), two counts of battery (family violence) (OCGA § 16-5-23.1) (2013),1
and one count each of trafficking of persons for labor or sexual servitude (OCGA §
16-5-46) (2013), pimping (OCGA § 16-6-11), pandering (OCGA § 16-6-12), false
imprisonment (OCGA § 16-5-41), aggravated assault with a deadly weapon (OCGA
§ 16-5-21) (2013), and giving false information to a law enforcement officer (OCGA
§ 16-10-25). Prescott appeals pro se from the trial court’s denial of his motion for
1 The jury acquitted Prescott of an additional count of battery (family violence). new trial as amended, raising 30 enumerations of error. For the reasons that follow,
we affirm.
Viewed in a light most favorable to the jury’s verdict,2 the evidence revealed
that the victim met a man named “Jehovah Israel,” later identified as Prescott, at a bar
in January 2013. The two exchanged telephone numbers, texted, and eventually
started dating. During their first date, Prescott stated that he went by the nickname
“Hova,” which was short for “Jehovah.” On their third date in February 2013, the
victim shared, during dinner, that she needed to find another job in order to find a
place to live on her own. To this point, the victim did not suspect anything was wrong
with Prescott or feel concern that he was a violent person. As they drove off after
dinner, Prescott asked the victim if she was still interested in finding a job and stated
that he had a job for her: “It may not be what you want, but at least you’ll be making
money.” The victim thought Prescott was referring to selling drugs and declined, and
the two “laughed it off. . . .” However, Prescott then said, “[w]ell, you may not want
to do it, but you’re going to ho for me.” Prescott then produced a small handgun and
pointed it at the victim’s head.
2 See, e.g., Ellis v. State, 316 Ga. App. 352, 354 (1) (729 SE2d 492) (2012).
2 At some point during their drive, Prescott took the victim’s mobile telephone.
The victim began screaming, and Prescott kept saying, “[b]itch, shut up.” Prescott
drove to a house on Toccoa Circle in Union City, Fulton County, pulled into the
garage, and pulled the victim into the house by her arm. Once inside, Prescott began
punching the victim, and he then pulled her upstairs and forced her to perform fellatio
on him. Prescott then made her sit in front of him as he yelled at her that she would
be engaging in sex acts with other men. He instructed her to go downstairs, open the
front door, take cash from the customer (whom Prescott referred to as “[t]ricks or
plays”), bring the money to him, and then go back downstairs to perform sex acts
with the customer. During such acts, Prescott would position himself from an upstairs
vantage point that allowed him to see the victim and the customer; he told the victim
that if she attempted to signal the customer or ask for help, he would kill her and the
customer.
The victim’s first experience with a “trick” came later that evening. Prescott
gave the victim liquor in an attempt to calm her nerves. Apparently noticing the
victim was nervous, the customer asked the victim if she was okay, and she responded
that she was, fearful that Prescott would kill her. The victim then had sex with the
customer, followed by other customers that same evening and every day for the next
3 several days. Through threats to kill her and her family, Prescott detained the victim
at the residence for the next several weeks. Prescott purchased clothes for the victim
to wear, requiring that she wear only a bra, shorts, and heels or boots. He also
instructed her to wear a wig in order to “look the part” and to prevent her
identification with her real hair. When he ultimately began allowing the victim to
answer her telephone to speak with potential “tricks,” Prescott ordered her what to
say and struck her when she spoke “too proper,” telling her to “talk slang.”
Based upon Prescott’s initial instructions to her, the victim felt that he had
engaged in this conduct before. The State introduced advertisements by “Hova”
imploring the recipient to “[c]ome get with a young hustler who is about that life. I
will provide a place, fly whip to ride in, and what ever you need.” The victim
identified the person in the advertisements as Prescott. The victim also learned that
she had been advertised on backpage.com, “a site where men or even women could
go to try to find someone to have sex with[,]” using photographs taken from the
telephone Prescott confiscated from the victim. In addition, the victim discovered that
Prescott was using the false name of “Tamar Byirt,” taken from a stolen driver’s
license.
4 During the time that the victim served Prescott, he punched her, kicked her,
spat upon her, and, on one occasion, pistol-whipped her. In another encounter, after
the victim remarked that a singer on television looked handsome, Prescott ordered her
into the bathroom, told her not to “ever make a comment about another dude,” and
burned her arm with an iron. Because she was scared of Prescott, the victim began
telling him that she loved him and would “try to do any and everything he asked [her]
to do right.” Prescott also took the victim to South Carolina and offered her for sex
acts from a hotel room.
In April 2013, Prescott and the victim gathered her possessions and she moved
in with him. Eventually, Prescott allowed the victim to speak with her mother and
sister — as he sat next to her holding a handgun. The victim pretended that
everything was okay. Prescott also allowed the victim to meet her mother and sister
for a meal in May 2013, and the victim again pretended that nothing was wrong.
Although both her mother and sister noticed the burn injury on her arm, the victim
claimed that she had simply dropped a hot curling iron on her arm. Prescott
threatened to kill the victim and her family if she ever sought help from them.
Meanwhile, Prescott continued to abuse the victim in other ways. In addition
to forcing the victim to perform sex acts with visitors, Prescott also forced her to
5 perform anal intercourse and fellatio with him. Prescott also required the victim to
continue meeting visitors while on her menstrual cycle. The victim slept in the same
room with Prescott, and if she moved, he moved.
The victim later met Lauren Blair, whom the victim knew as “Renee,” when
Blair occasionally visited Prescott at his house for sex. When the victim first met
Blair, she cried out to Blair and begged to leave with her. Instead of helping the
victim, Blair told Prescott what she said. Prescott then charged the victim, grabbed
her shirt, and said she “wasn’t going nowhere” and that she was “his.”3
Prescott also used the victim to recruit other women in clubs for prostitution
and once used the victim to approach a woman named “Fancy” whom Prescott and
the victim saw walking down the street one day. A couple of days later, Prescott and
the victim picked up Fancy and brought her to the house on Toccoa Circle. Although
the victim did not hear Prescott giving Fancy any instructions, he forced Fancy and
the victim to perform sex acts on each other, on himself, and with visitors. The victim
3 At trial, Blair, whose middle name is Renee, denied that the victim had ever asked her for assistance. In addition, evidence revealed that Blair spoke to Prescott while he was in jail following his arrest and that she may have assisted Prescott in destroying evidence.
6 also instructed Fancy on how she was to act with the customers. Prescott also
physically abused the victim in front of Fancy.
Prescott’s racket began to unravel when a police officer showed up at his door
one day. Shortly after a customer arrived for sex, the officer knocked on the door; the
victim answered the door, and the officer asked if someone named “Dominique” lived
there. Not knowing Fancy’s real name, the victim replied “no,” but said a woman
named “Fancy” lived there. A woman standing with the officer exclaimed, “that’s my
daughter,” and the officer asked the victim to bring Fancy to the door. The victim
complied, but did not then call out for help herself; instead, she lied to the officer
because she thought she was “in big trouble.” During this encounter, Prescott was
hiding inside the house. The customer exited the house with the victim, and the
officer found Prescott during a search of the house; Prescott gave his name as “Tamar
Byirt.” The officer briefly detained the three, took their identification cards, and
released Prescott and the customer. The officer placed Dominique in custody
following an altercation and left the scene.
In June 2013, Prescott confronted the victim about money he thought was
missing from prepaid cards he used to place advertisements on backpage.com. When
she said she didn’t have any money, Prescott said, “You have one minute to find my
7 money or it’s going to get real ugly.” When the victim again protested, he pistol-
whipped her on the head so violently that she urinated and defecated on herself and
bled from her eye. He also began choking her. She then claimed to know where some
money was hidden downstairs; however, that was a ploy to attempt escape. Prescott
grabbed her, slammed her to the floor, and began kicking, punching, and spitting on
her. He then took her to an upstairs bathroom, forced her into the shower, closed the
curtain, pulled out a handgun, and said, “I’m going to kill you. You better tell me
what you’re doing with my money.” The victim lied and said she gave money to her
mother. Prescott then told the victim he forgave her, said, “[w]hat are we going to do
about your family[,]” and forced the victim to perform fellatio on him and kiss his
feet. She later used a towel to wipe the blood from her eye.
Prescott’s final degradation occurred on June 18, 2013. Prescott was again
unable to use a prepaid card to purchase an advertisement on backpage.com, so he
threw the victim on the bed, began choking her, and said, “[b]itch, when I get out of
this shower, you better make that card go through or I’m going to kill you.” She asked
to use the bathroom in another part of the house; Prescott agreed, and when she left
the bedroom, she ran from the house. She fled to a neighbor’s house and burst
through the door, screaming for help, and the neighbor called police. When officers
8 arrived, they met with the victim, who directed them to Prescott’s residence. As an
officer approached the house, the garage door lifted and Prescott attempted to back
out of the garage. The officer then detained Prescott, who identified himself as
“Tamar Byirt.” Officers found two identification cards on Prescott’s person during
a pat-down search — one for Tamar Byirt and one for Prescott. During a subsequent
search of the residence, officers located wigs, women’s shoes, a corset, and a towel.
An expert in human trafficking testified that the victim’s description of her activities
and abuse was consistent with being ensnared in sexual servitude. Testing of the
towel taken from Prescott’s residence revealed the presence of the victim’s blood.
A Fulton County grand jury indicted Prescott for two counts of aggravated
sodomy, three counts of aggravated assault (family violence), three counts of battery
(family violence), and one count each of trafficking of persons for labor or sexual
servitude, pimping, pandering, false imprisonment, aggravated assault with a deadly
weapon, and giving false information to a law enforcement officer. Prior to his trial,
Prescott filed a number of pro se motions despite the fact that he was represented by
counsel. With the exception of one count of battery (family violence), the jury
returned guilty verdicts against Prescott on each count of the indictment. After trial,
Prescott insisted that he represent himself. Following a hearing pursuant to Faretta
9 v. California, 422 U. S. 806 (95 SCt 2525, 45 LE2d 562) (1975), the trial court
allowed Prescott to proceed pro se, and he filed a motion for new trial with several
amendments. The trial court denied Prescott’s motion as amended, and he appeals pro
se.
1. At the outset, Prescott’s opening brief suffers from numerous egregious
violations of this Court’s rules. Most glaringly, none of Prescott’s 30 enumerations
of error are supported by any argument or citation of authority. See Court of Appeals
Rule 25 (c) (2) (“Any enumeration of error that is not supported in the brief by
citation of authority or argument may be deemed abandoned.”). Indeed, Prescott’s
enumerations, which span 18 handwritten pages, are followed by a “Citation of
Authority” of one-half page, which merely contains a string citation of assorted
constitutional provisions and random sections of the Official Code of Georgia, Brady
v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963), and Sampson v. State,
124 Ga. 776 (53 SE 332) (1906). Equally as distressing, the appellant’s brief does not
contain a single “citation of the parts of the record or transcript essential to a
consideration of the errors[.]” Court of Appeals Rule 25 (a) (1); see also Court of
Appeals Rule 25 (c) (2) (i) (“Each enumerated error shall be supported in the brief by
specific reference to the record or transcript.”) (emphasis supplied); Cawthon v. State,
10 350 Ga. App. 741, 744 (1) (a) (830 SE2d 270) (2019) (noting that “this Court will not
typically address arguments in the complete absence of record and transcript
citations”). These deficiencies are particularly troublesome in an appellate record that
spans more than 2,000 pages, because “it is not the function of this Court to cull the
record on behalf of a party in search of instances of error.” (Citation and punctuation
omitted.) Id. at 743.
Moreover, the brief does not contain “the method by which each enumeration
of error was preserved for consideration” on appeal. Court of Appeals Rule 25 (a) (1).
Furthermore, Prescott’s minimalist “Citation of Authority” does not correspond with
the stated enumeration of errors. See Court of Appeals Rule 25 (c) (1) (“The sequence
of arguments in the briefs shall follow the order of the enumeration of errors, and
shall be numbered accordingly.”); Crawford v. State, 314 Ga. App. 796 (726 SE2d
58) (2012) (appellant raised 14 enumerations of error but only five non-corresponding
argument sections).
In short, our rules do not exist in a vacuum; rather, they are based, at least in
part, on the well-recognized and “sound rule of appellate practice that the burden is
always on the appellant in asserting error to show it affirmatively by the record.”
11 (Citation and punctuation omitted.) Mathis v. State, 299 Ga. App. 831, 835 (1) (b),
n. 15 (684 SE2d 6) (2009). To that end,
the rules of this court are not intended to provide an obstacle for the unwary or the pro se appellant. Briefs that do not conform to the rules regarding enumerations of error, structure of briefs, argument, or citation of authorities, as [Prescott] fails to do, are not merely an inconvenience or grounds for refusing to consider a party’s contentions. Such briefs hinder this court in determining the substance and basis of an appellant’s contentions both in fact and in law and may well prejudice an appellant’s appeal regardless of the amount of leniency shown. Nevertheless, we will address [Prescott’s] arguments, insofar as we are able to ascertain them from his brief.
(Citation omitted.) Anderson v. State, 335 Ga. App. 78, 80 (2) (778 SE2d 826)
(2015); see also Zywiciel v. Historic Westside Village Partners, 313 Ga. App. 397,
401, n. 18 (721 SE2d 617) (2011) (“[Prescott] has hampered our ability to ensure that
all his arguments not addressed by enumerations of error are addressed. Accordingly,
he is wholly responsible for any allegation of error that we are unable to fully
address.”) (citation and punctuation omitted); Fleming v. Advanced Stores Co., 301
Ga. App. 734, 735 (688 SE2d 414) (2009) (“We recognize that [Prescott] is acting pro
se; nevertheless, ‘that status does not relieve him of the obligation to comply with the
substantive and procedural requirements of the law, including the rules of this
12 Court.’”) (citation and punctuation omitted). Accordingly, we have combined
Prescott’s enumerations where possible in an effort to address, as best we can, the
arguments we are able to discern and properly consider under our rules. See
Sevostiyanova v. State, 313 Ga. App. 729, 730 (722 SE2d 333) (2012).
2. In three interrelated enumerations, Prescott contends that the evidence was
insufficient to support his convictions.4 We disagree.
On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). As long as there is some competent evidence, even though contradicted,
4 Two of Prescott’s enumerations invoke the general grounds. See OCGA §§ 5-5-20, 5-5-21.
Trial courts have discretion to grant a new trial on these grounds . . . but appellate courts do not. Our review is limited to the legal sufficiency of the evidence. Indeed, even when asked to review a trial court’s refusal to grant a new trial on the general grounds, this Court must review the case under the standard set forth in Jackson v. Virginia.
(Citations and punctuation omitted.) Lewis v. State, 351 Ga. App. 603, 604 (2) (831 SE2d 837) (2019).
13 to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.
(Citation and punctuation omitted.) Watkins v. State, 336 Ga. App. 145, 146 (1) (784
SE2d 11) (2016); see also Conley v. State, 329 Ga. App. 96 (763 SE2d 881) (2014).
It is well-settled that “the testimony of a single witness is generally sufficient to
establish a fact.” (Citation and punctuation omitted.) Cross v. State, 354 Ga. App.
355, 358 (1) (839 SE2d 265) (2020); see also OCGA § 24-14-8.
(a) Aggravated sodomy. “A person commits the offense of aggravated sodomy
when he or she commits sodomy with force and against the will of the other
person. . . .” OCGA § 16-6-2 (a) (2). Sodomy occurs when a person “performs or
submits to any sexual act involving the sex organs of one person and the mouth or
anus of another.” OCGA § 16-6-2 (a) (1). The State indicted Prescott for two counts
of aggravated sodomy for forcibly performing anal intercourse and fellatio on the
victim. The victim unequivocally testified that Prescott forced her to perform anal
intercourse and fellatio with him against her will. Thus, we conclude that the
evidence was sufficient to convict Prescott of aggravated sodomy. See, e.g., Cross,
354 Ga. App. at 357-358 (1).
14 (b) Aggravated assault (family violence). “A person commits the offense of
aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any
object, device, or instrument which, when used offensively against a person, is likely
to or actually does result in serious bodily injury[.]” OCGA § 16-5-21 (a) (2); see also
OCGA § 16-5-21 (j) (2013). Prescott’s charges against the victim, who lived with
him, included striking the victim with a handgun, striking her with his fists, and
strangling her. The victim testified that, beginning with her arrival at Prescott’s house
and continuing after she moved in with him, Prescott punched her on several
occasions. In addition, evidence revealed that Prescott choked and pistol-whipped the
victim when he thought that she had taken money from him. Therefore, the evidence
was sufficient to convict Prescott of aggravated assault (family violence). See, e.g.,
Moore v. State, Case No. A20A1348, 2020 Ga. App. LEXIS 518, at *4 - *5 (1) (a)
(Ga. App. Sept. 21, 2020); Jones v. State, 294 Ga. App. 564, 566 (1) (669 SE2d 505)
(2008).
(c) Battery (family violence). “A person commits the offense of battery when
he or she intentionally causes substantial physical harm or visible bodily harm to
another.” OCGA § 16-5-23.1 (a); see also OCGA § 16-5-23.1 (f) (2013). The State
accused Prescott of causing visible bodily harm to the victim by punching and
15 strangling her. In addition to the testimony cited above concerning Prescott’s acts of
choking and punching the victim, photographs of her injuries were admitted at trial.
Moreover, the victim’s mother noted that the victim had bruising around her neck and
a scar on her face when she picked up the victim following her escape. Similarly, the
officer who responded to the neighbor’s house after the victim fled noticed bruising
on the victim’s neck. The evidence was, again, sufficient to convict Prescott of
battery (family violence). See, e.g., Moore, 2020 Ga. App. LEXIS 518, at *5 - *6 (1)
(b); Walker v. State, 315 Ga. App. 821, 823 (728 SE2d 334) (2012).
(d) Trafficking of persons for labor or sexual servitude. “A person commits the
offense of trafficking a person for sexual servitude when that person knowingly
subjects another person to or maintains another person in sexual servitude. . . .”
OCGA § 16-5-46 (c) (1) (2013). “‘Sexual servitude’ means . . . any sexually explicit
conduct or performance involving sexually explicit conduct for which anything of
value is directly or indirectly given . . . or received by any person, which conduct is
induced or obtained by coercion or deception. . . .” OCGA § 16-5-46 (a) (6) (A)
(2013). The State indicted Prescott for coercing the victim to engage in sexual
activities with other partners and for threatening her family if she attempted to leave
him. Evidence revealed that, after Prescott and the victim dated for a short time,
16 Prescott told the victim when she was in his vehicle, “you may not want to do it, but
you’re going to ho for me.” He then pointed a handgun at her head and drove her to
his residence, where he punched her and forced her to perform fellatio on him.
Thereafter, he instructed the victim on how to prostitute herself, including delivering
money from customers to him, and threatened to kill her and her family if she ever
signaled a customer for assistance.
Over the course of the next four months, Prescott advertised the victim for
sexual services for which he received money; purchased clothing for her and
instructed her on how to dress for customers; required her to perform sex acts with
customers and with himself; repeatedly threatened to kill her and her family; and even
drove her to South Carolina, where he again offered her for sex acts with customers.
Moreover, an expert in human trafficking testified that the victim’s description of her
experience was consistent with trafficking and sexual servitude. We conclude that
this evidence is sufficient for any rational trier of fact to find Prescott guilty beyond
a reasonable doubt of the crime of trafficking of persons for sexual servitude. See
Grace v. State, 347 Ga. App. 396, 398-399 (1) (819 SE2d 674) (2018).
(e) Pimping. Relevant to this case, pimping occurs when a person “[a]ids or
abets, counsels, or commands another in the commission of prostitution. . . .” OCGA
17 § 16-6-11 (5); see also OCGA § 16-6-9 (2013) (“A person commits the offense of
prostitution when he or she performs or offers or consents to perform a sexual act,
including, but not limited to, sexual intercourse or sodomy, for money or other items
of value.”). Prescott was charged with aiding and abetting the victim in the
commission of prostitution. In view of the evidence recounted above, including
Prescott’s advertisements for the victim’s sexual services, providing her with clothing
and a location for those services, and using the victim’s telephone to arrange
customers for those services, we conclude that the evidence was sufficient to find
Prescott guilty beyond a reasonable doubt of pimping by aiding and abetting the
victim in committing prostitution. See Creighton v. State, 327 Ga. App. 825, 828 (1)
(b) (761 SE2d 373) (2014).
(f) Pandering. “A person commits the offense of pandering when he or she
solicits a person to perform an act of prostitution in his or her own behalf. . . .”
OCGA § 16-6-12. Here, the victim testified that Prescott told her that she would
prostitute herself for him, transported her to his residence, physically assaulted and
threatened her repeatedly, and forced her to perform sex acts with customers for
money, which she gave to him. This evidence is sufficient to convict Prescott of
18 pandering. See Kea v. State, 344 Ga. App. 251, 254 (2) (a) (810 SE2d 152) (2018);
see also OCGA § 16-6-9 (2013).
(g) False imprisonment. “A person commits the offense of false imprisonment
when, in violation of the personal liberty of another, he . . . detains such person
without legal authority.” OCGA § 16-5-41 (a). The victim testified that Prescott
detained her at his residence over the course of four months through a pattern of
abuse and threats, including multiple threats to kill her, her family, and her customers
should she attempt to leave. We conclude that this evidence was sufficient to allow
a rational trier of fact to find Prescott guilty beyond a reasonable doubt of false
imprisonment. See Taylor v. State, 344 Ga. App. 122, 130-131 (1) (f) (809 SE2d 76)
(2017); Schneider v. State, 312 Ga. App. 504, 508 (3) (718 SE2d 833) (2011).
(h) Aggravated assault with a deadly weapon. Aggravated assault also occurs
when a person assaults another with a deadly weapon. OCGA § 16-5-21 (a) (2)
(2013). The State charged Prescott with pointing a handgun at the victim. The victim
testified that Prescott first pointed a handgun at her when they were traveling to his
residence from their third date. Thereafter, the victim described other occasions when
Prescott pointed a handgun at her, including when Prescott forced her into a shower,
closed the curtain, pointed the handgun at her, and threatened to kill her. This
19 evidence is sufficient to support Prescott’s conviction for aggravated assault. See,
e.g., Taylor, 344 Ga. App. at 130 (1) (e).
(i) Giving false information to a law enforcement officer. “A person who gives
a false name, address, or date of birth to a law enforcement officer in the lawful
discharge of his official duties with the intent of misleading the officer as to his
identity or birthdate is guilty of a misdemeanor.” OCGA § 16-10-25. Prescott was
accused of giving an officer a false name and date of birth. The evidence revealed
that, when he was apprehended following the victim’s escape, Prescott gave officers
the name “Tamar Byirt.” Officers searched Prescott’s pockets when he was
apprehended, and found identification cards for Byirt and Prescott. Moreover,
Prescott’s criminal case identified him as Shavon Jabbar Prescott. Therefore, “[t]he
evidence was sufficient for a rational trier of fact to find that appellant’s real name
was [Shavon Jabbar Prescott] and that he gave a false name to the [responding
officer].” Singleton v. State, 259 Ga. App. 184, 186 (3) (577 SE2d 6) (2003).
In sum, we conclude that the evidence was sufficient to find Prescott guilty
beyond a reasonable doubt of each of the crimes for which he was convicted.
3. Prescott also raises several claims of ineffective assistance of trial counsel,
including trial counsel’s alleged failure to: (1) appeal certain unidentified trial court
20 rulings; (2) adequately investigate his arrest; (3) advise him of his appellate rights;
(4) cross-examine “important,” yet unidentified, witnesses; and (5) file a motion to
suppress unidentified evidence. None are meritorious.
To demonstrate ineffective assistance of trial counsel, Prescott “has the burden
of proving that counsel’s performance was deficient, and that, but for the deficiency,
there was a reasonable probability the outcome of the trial would have been
different.” (Citations and punctuation omitted). State v. Banks, 337 Ga. App. 749, 751
(789 SE2d 619) (2016). “This burden, although not impossible to carry, is a heavy
one, because when reviewing ineffective assistance of counsel claims, this Court
applies a strong presumption that counsel’s performance falls within the wide range
of reasonable professional assistance.” (Citations and punctuation omitted.) Wiggins
v. State, 338 Ga. App. 273, 283 (6) (787 SE2d 357) (2016). If a defendant fails to
satisfy either prong of the test for ineffective assistance of counsel, it is not incumbent
upon this Court to examine the other prong. See, e.g., Thomas v. State, 318 Ga. App.
849, 857 (5) (734 SE2d 823) (2012).
21 Of the five specific grounds of ineffective assistance of counsel Prescott raised,
he did not question trial counsel about any of them.5 Nor did Prescott testify during
the hearing on his motion for new trial. Accordingly, even assuming that Prescott’s
allegations of ineffective assistance are definite enough to permit review, see Pinson
v. State, 266 Ga. App. 254, 259 (3) (b) (596 SE2d 734) (2004), he has failed to
present any evidence or point to evidence in the record in support of his allegations.
It necessarily follows that Prescott has not satisfied the heavy burden to demonstrate
ineffective assistance of trial counsel. See Wiggins, 338 Ga. App. at 283 (6).
4. In two enumerations, Prescott contends that the trial court violated his right
to a speedy trial under the United States and Georgia constitutions because it failed
to try him within a reasonable time. In view of Prescott’s failure to support the
enumerations with citations of authority or to the record, however, these enumerations
are deemed abandoned. See Court of Appeals Rule 25 (c) (2); Smith v. State, 277 Ga.
App. 321, 322 (626 SE2d 540) (2006) (finding that defendant waived speedy trial
arguments for appellate review due to lack of argument).
5 Prescott briefly questioned one of his trial counsel about the failure to challenge certain evidence because the evidence “wasn’t part of the discovery.” However, since the question did not raise any legal basis to suppress the evidence, Prescott has again failed to demonstrate error by trial counsel.
22 5. Prescott further contends that he was denied his right to trial by jury because
the trial court, rather than the jury, sentenced him. Inasmuch as Prescott was not
facing a charge punishable by death, he did not have a right to a sentencing hearing
before a jury. See OCGA § 17-10-2 (a) (1) (“Except in cases in which the death
penalty may be imposed, upon the return of a verdict of ‘guilty’ by the jury in any
felony case, the judge shall dismiss the jury and shall conduct a presentence hearing
at which the only issue shall be the determination of punishment to be imposed.”)
(emphasis supplied). Thus, there is no error.
6. Prescott asserts, with no citations to the record or to supportive authority,
that the “verdict, sentence, and judgment violates the constitution or laws of the
United States.” “This enumeration is too vague and indefinite and presents nothing
for review.” (Citation and punctuation omitted.) Pinson, 266 Ga. App. at 259 (3) (b);
see also Martin v. State, 223 Ga. 649, 653 (7) (157 SE2d 458) (1967).
7. Next, Prescott argues that the trial court erred by allowing the State “to make
statements of prejudicial matters which were not in evidence and which were also
[contradictory],” and by not declaring a mistrial. Not only has Prescott failed to
identify the “statements of prejudicial matters” he contests, he has not shown where
23 in the record he objected to the phantom statements or moved for a mistrial.6 And
even if Prescott did not move for a mistrial, “the trial court was required to act sua
sponte only if there was a manifest necessity for a mistrial.” (Citation and punctuation
omitted.) Burden v. State, 296 Ga. App. 441, 446 (4) (a) (674 SE2d 668) (2009).
Prescott has not identified any such necessity. See, e.g., Davenport v. State, 316 Ga.
App. 234, 238 (2) (729 SE2d 442) (2012). As a result, this enumeration fails.
8. Prescott also contends that “the verdict was decided upon material evidence
illegally admitted and evidence illegally withheld from the jury.” For the reasons and
authority cited in Division 6, supra, this enumeration is without merit. See Martin,
223 Ga. at 653 (7); Pinson, 266 Ga. App. at 259 (3) (b).
9. Under the broad category of “equal protection and due process,” Prescott
asserts that his rights were violated because: (1) the trial court, his trial counsel, and
the State submitted false and perjured documents and evidence through his trial
counsel; (2) the State presented false statements and narratives of the crimes to the
jury; (3) “the trial court and the State intentionally denied [him] procedural due
6 A brief review of the trial transcript reveals two occasions where Prescott’s counsel moved for a mistrial. Prescott’s enumeration does not identify which of the trial court’s rulings on these two motions he challenges, or if there are other instances for which a mistrial should have been granted.
24 process;” (4) the State shifted the burden of proof “in the presence and hearing of the
jury[;]” (5) he “was denied the fundamental federal and State constitutional rights,
privileges, and immunities guaranteed him by, both the Georgia and the United States
constitutions;” and (6) the trial court denied his motion to strike and disqualify the
entire jury panel due to an unidentified comment by a prospective juror.
Notwithstanding the vague and indefinite nature of Prescott’s enumerations, see
Martin, 223 Ga. at 653 (7); Pinson, 266 Ga. App. at 259 (3) (b), none are supported
by citations of authority or to the record. As a result, these enumerations are deemed
abandoned. Court of Appeals Rule 25 (c) (2).
10. Prescott next argues, in a series of enumerations, that he was deprived of
a fair trial due to the State’s submission of a variety of false documents, including:
(1) “perjured and tampered testimonies, phone recordings, documents, depositions,
evidence, indictment, and court records which had been purposefully altered;” (2) a
statement by a law enforcement officer before the grand jury that contradicted
Prescott’s indictment; (3) a “falsified . . . indictment;” and (4) “falsified court records,
calendars, and documents which resulted in an unlawful indictment. . . .” Not only has
Prescott failed to cite to the documents in the record, much less even specifically
identify the allegedly offending documents, the enumerations are vague and indefinite
25 and are not supported by citations of authority. Therefore, they are deemed
11. Prescott also contends that his conviction was procured by the State’s
pervasive misconduct, including: (1) “tampering and altering evidence and
documents . . . and by intentionally and deliberately manipulating the court
proceedings with false statements and lies in the hearing of the jury[;]” (2) “illegal
wiretapping[,] perjured affidavits[;] perjured and tainted jail phone recordings[;]
illegally admitted perjured testimonies[;] [and] altered and amended pretrial and trial
transcripts[;]” and (3) false statements concerning the tenure of a law enforcement
officer. For the reasons stated in Divisions 9 and 10, supra, these enumerations are
deemed abandoned. Court of Appeals Rule 25 (c) (2).
12. Prescott argues that the State, “in joint conspiracy with both the Public
Defenders Office and the Metro Conflict Defenders Office . . . withheld favorable
evidence towards [Prescott] from the jury during deliberations” and “illegally issued
subpoenas to persons not listed in the . . . indictment. . . .” By failing to identify the
subject evidence, the manner in which the subpoenas were issued, and the persons
upon whom the subpoenas were served, Prescott’s enumeration presents nothing for
our review. See Martin, 223 Ga. at 653 (7); Pinson, 266 Ga. App. at 259 (3) (b).
26 13. Prescott next asserts that the trial court abused its discretion in failing to
hear his complaints about his appointed trial counsel, resulting in a conflict of
interest. Absent citations to the record, argument in support of the enumeration, and
authority in support of the argument, this enumeration is deemed abandoned. See
Court of Appeals Rule 25 (c) (2).
14. Finally, Prescott argues that the trial court “did not set reasonable and
consistent bail” or grant him an appeal bond. To the extent Prescott challenges the
trial court’s alleged failure to award him a reasonable bond prior to trial, the same is
deemed abandoned. See Court of Appeals Rule 25 (c) (2). Furthermore, any argument
concerning an appeal bond is moot in view of our affirmance of Prescott’s
convictions. See, e.g., Lawson v. State, 242 Ga. 744, 745 (2) (251 SE2d 304) (1978).
In sum, we conclude that the evidence was sufficient to find Prescott guilty
beyond a reasonable doubt of the crimes for which he was convicted. We also
conclude that Prescott failed to satisfy his burden to demonstrate ineffective
assistance of trial counsel. Finally, we conclude that Prescott’s remaining arguments
are either without merit or deemed abandoned. Therefore, we affirm the trial court’s
denial of Prescott’s motion for new trial.
Judgment affirmed. McFadden, C. J., and Doyle, P. J., concur.