the denial of his motion for new trial, as amended, Timothy
Cain appeals his convictions and sentences for felony murder
while in the commission of an aggravated assault, and
possession of a firearm during the commission of a crime. He
challenges the sufficiency of the evidence, an evidentiary
ruling, and the effectiveness of his trial counsel. For the
reasons that follow, we affirm.
to support the verdicts, the evidence shows the following:
The victim, Calvin Davis, was shot to death in the early
morning hours of June 19, 2010. The previous day, Yoshanda
Mitchell, who lived across from appellant, invited appellant
to a motel where, she said, she and others would be partying.
Mitchell gave appellant a ride in her car. Later, appellant,
Mitchell and a third individual, Andre Wooden, got together
at a motel. Mitchell left appellant and Wooden for a short
while to find her phone charger. She rejoined them at another
motel where they met the victim, who occupied a room there,
outside. Appellant left the second motel for a short time.
When he returned, he said his money was missing. Mitchell and
Wooden helped appellant look for the money in Mitchell's
car, but they could not find it. Before long, they asked the
victim if they could look in his motel room and he agreed to
their request. Appellant, Mitchell and Wooden entered the
victim's motel room. Appellant went into the victim's
bathroom; he came out with a gun in his hand, and demanded
someone give him his money. Appellant then fired five shots,
one of which struck and killed the victim. The absence of
stippling on the victim's body demonstrated he was at
least 18 inches away from the barrel of the handgun when
appellant shot him.
Appellant contends the evidence was insufficient as a matter
of law to support his convictions for felony murder and
possession of a firearm during the commission of a crime. See
Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct.
2781, 61 L.Ed.2d 560) (1979). We disagree. Mitchell and
Wooden provided eyewitness accounts sufficient to authorize
any rational trier of fact to find appellant guilty beyond a
reasonable doubt of the crimes for which he was convicted.
See Hill v. State, 297 Ga. 675, 677 (777 S.E.2d 460)
(2015) (witness's credibility is a matter within the
exclusive province of the jury). The jury was not required to
credit appellant's testimony that he fired his revolver
in self defense because the victim and Wooden tried to rob
assertion that the evidence at trial was insufficient because
it was wholly circumstantial and failed to exclude every
other reasonable hypothesis except that of appellant's
guilt, see former OCGA § 24-4-6,  is equally
without merit. First, the statute permits convictions based
solely on circumstantial evidence under certain conditions.
But here, the eyewitness testimony of Mitchell and Wooden
constituted direct evidence of appellant's guilt. Thus,
the evidence against appellant was not wholly circumstantial
and former OCGA § 24-4-6 was inapplicable.
Hill, supra at 678.
Next, appellant posits the trial court erred in sustaining
the State's hearsay objection and preventing him from
testifying with regard to statements Mitchell made to him on
the day of the murder. Appellant contends the statements
would have demonstrated he did not go to the motel with the
intent to commit a crime, but to attend a party. However,
because this case was tried before the plain error doctrine
became part of our new Evidence Code, see OCGA §
24-1-103 (d), and because counsel did not register a
complaint when the trial court sustained the State's
objection, this claim of error was waived. Durham v.
State, 292 Ga. 239, 240 (2) (734 S.E.2d 377) (2012).
his last enumeration of error, appellant asserts defense
counsel rendered ineffective assistance in failing to object
properly when the State asked two of appellant's three
character witnesses if they knew appellant's mother had
called police the night before the shooting, telling them she
was afraid appellant was going to commit a robbery. Trial
counsel's objection to this line of questioning on
relevance grounds was overruled.
argues trial counsel should have objected on foundation
grounds because it was incumbent upon the State "to show
that the questions posed to the defendant's character
witness were asked in good faith and based on reliable
information that can be supported by admissible
evidence." State v. Clark, 258 Ga. 464, 464
(369 S.E.2d 900) (1988). See also Medlock v. State,
264 Ga. 697, 698-699 (449 S.E.2d 596) (1994) (prosecution can
ask character witnesses if they have heard about arrests,
convictions and uncharged bad acts of defendant as long as it
can show a reliable basis for the question).
the State was in possession of a police report that contained
appellant's mother's statement to police that she
feared her son was planning a robbery. The police report
served as a good faith basis, rooted in reliable information,
for the prosecution's questions. As such, an objection by
trial counsel on foundation grounds would have been
meritless, and the failure to make such an objection was not
ineffective assistance. See Grant v. State, 295 Ga.
126, 131 (757 S.E.2d 831) (2014).
affirmed. All the Justices concur.
The crimes occurred on June 19, 2010.
On September 28, 2010, a Richmond County grand jury indicted
Cain for malice murder, felony murder based on aggravated
assault, and possession of a firearm during the commission of
a crime. Cain was tried before a jury October 3-7, 2011; he
was acquitted of malice murder but was found guilty of the
remaining charges. On October 7, 2011, Cain was sentenced to
serve life in prison without parole for felony murder, and a
consecutive term of five years in prison for possession of a
firearm during the commission of a crime. A motion for new
trial was filed on November 3, 2011, and the motion was
amended on March 19, 2015. The motion, as amended, was denied
on November 13, 2015. Cain filed a notice of appeal on
December 10, 2015. The appeal was docketed in this Court for
the September 2016 term and submitted for a decision on the
 This case was tried under the former
Evidence Code. Former OCGA § 24-4-6 appears in the new
Evidence Code as ...