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Lopez v. State

Court of Appeals of Georgia

June 16, 2015

LOPEZ
v.
THE STATE

Stalking. Gwinnett Superior Court. Before Judge Tom Davis.

Michael S. Marr, for appellant.

Daniel J. Porter, District Attorney, Lee F. Tittsworth, Assistant District Attorney, for appellee.

MCFADDEN, Judge. Ellington, P. J., and Dillard, J., concur.

OPINION

McFadden, Judge.

After a jury trial, Salvador Lopez was convicted of aggravated stalking for violating a restraining order for the purpose of harassing and intimidating the victim by following her to her home and calling the police to stop her vehicle. He appeals, challenging

Page 788

the admission of testimony from the victim concerning prior acts of violence and the effectiveness of his trial counsel. However, Lopez did not object to the victim's testimony and thus waived that issue, and he has not shown [332 Ga.App. 519] that his trial counsel's performance was deficient. Accordingly, we affirm.

At trial, the state presented evidence showing that Lopez and the victim began living together in 1989 and married in 1991. The victim testified about violence throughout their relationship, describing numerous incidents of Lopez beating her, kicking her, pulling her hair, cursing at her, and threatening to kill her with a knife and by strangulation. The couple separated, and after an incident in 2011 when Lopez returned to his estranged wife's home and beat her, she obtained a protective order against him.

In May 2012, the victim was outside her house when Lopez drove by and yelled, " Hey, whore!" Two days later, the victim was driving in the parking lot of a grocery store when she noticed that Lopez was following her. She left the parking lot and tried to lose Lopez, but he continued to pursue her. The victim could hear other drivers honk their horns at him as he drove erratically behind her. As Lopez followed the victim, he called 911 and made an unsubstantiated report that a person wanted by the police was in his wife's vehicle. An officer subsequently arrived at the victim's home, where she explained that she had a protective order against Lopez. Shortly after Lopez was arrested for aggravated stalking, he called his wife from jail and threatened that she would be seeing him again.

1. Prior bad acts evidence.

Lopez complains that the trial court erred in allowing the victim to testify about prior bad acts committed by him because the state failed to give notice of its intent to introduce such evidence as required by OCGA § 24-4-404 (b). However, as Lopez acknowledges in his brief, he failed to raise any such objection at trial. " The failure to make a timely and specific objection is treated as a waiver. Accordingly, [Lopez] has not preserved this issue for appeal." Heard v. State, 296 Ga. 681, 686 (4) (769 S.E.2d 917) (2015) (citations and punctuation omitted).

2. Ineffective assistance of counsel.

Lopez claims that his trial counsel was ineffective in failing to raise a lack of notice objection to the prior bad acts evidence mentioned above in Division 1. In order to succeed on his ineffective assistance of counsel claim, Lopez must show, under the standard set forth in Strickl ...


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