BARNES, P. J., MCMILLIAN and MERCIER, JJ.
Barnes, Presiding Judge.
a jury trial, Clarence Steven Wallace was convicted of three
counts of felony theft by shoplifting and sentenced to ten
years to serve as a recidivist under OCGA § 17-10-7 (a)
and (c). He filed a motion for new trial alleging the general
grounds, which Wallace later amended to include other claims,
including ineffective assistance of counsel. The trial court
denied his motion, and Wallace appeals from that order.
Following our review, we affirm.
appeal from a criminal conviction, the defendant is no longer
entitled to a presumption of innocence and we therefore
construe the evidence in the light most favorable to the
jury's guilty verdict." Marriott v. State,
320 Ga.App. 58, 58 (739 S.E.2d 68) (2013). So viewed, the
record demonstrates that Wallace drove his co-defendant,
Lebron Grady, to Whitfield County so that Grady could
shoplift specific items for Wallace in order to repay a debt
to Wallace. As Wallace waited in his truck, Grady took
electric toothbrushes and S.D. cards from a CVS Pharmacy. The
men then continued the shoplifting spree, taking boots from
the Tractor Supply Company, fishing reels, headphones, a
cellular phone and computer from Walmart, a cellular phone
booster from Radio Shack, and shoes from JCPenney. At the
next stop, a liquor store, Wallace purchased a soda while
Grady took two bottles of Crown Royal and started to leave
the store. The owner saw him, and during an ensuing chase,
Grady dropped the liquor bottle while he ran away.
picked Grady up in his truck, and, after the shop owner
notified police of the theft and the type of vehicle the men
were driving, police stopped the pair at a traffic stop
conducted a few miles from the liquor store. After Wallace
gave police permission to search the truck, police discovered
the stolen items in the bed of the truck. Wallace denied
participating in the crimes, but consented to a search of his
person, and the police retrieved an unopened lip gloss-type
product from his pocket, which was later identified as an
item stolen from Walmart. Both men were arrested and indicted
on three counts of felony shoplifting.
Wallace first contends that his felony shoplifting conviction
on Count 3 of the indictment is void. He asserts that because
the State used the aggregated value of the goods from the
various stores to support the felony charge, the indictment
had to specify that the thefts occurred within the
statutorily prescribed period of seven days or less. We do
first count of the indictment charged Wallace with felony
shoplifting for taking goods valued at more than $500 from
CVS, and Count 2 charged the same for the shoplifting that
occurred at WalMart. Count 3 of the indictment, however,
provided, in pertinent part, that Wallace, "did take
possession of . . . the property of Tractor Supply Company, .
. . the property of JC Penney, . . . the property of Radio
Shack, . . . and . . . the property of Cox Spirits, . . .
said merchandise totaling a value greater than five hundred
maintains that although the State did not refer to a specific
statute in the indictment, the only provision of the
shoplifting statute that covers aggregation of separate
misdemeanor-level thefts is OCGA § 16-8-14 (b) (3),
which requires that the aggregate acts occur during a period
of seven days or less. He argues that the seven-day period is
a material element of the statute that the State failed to
allege in the indictment, which only stated that the thefts
occurred "on or about" May 27, 2014. Wallace
further contends that pursuant to Apprendi v. New
Jersey, 530 U.S. 466, 490 (IV) (120 S.Ct. 2348, 147
L.Ed.2d 435) (2000), any fact that increases the penalty for
a crime beyond the statutory maximum, other than a prior
conviction, must be submitted to a jury and proven beyond a
reasonable doubt. Thus, he argues, because the time period of
seven days would act to increase his crime from a misdemeanor
to a felony, it was a material element of Count 3, and the
jury should have been instructed to make that determination.
§ 16-8-14 (b) (2), provides that a person who commits
the offense of theft by shoplifting is guilty of a felony
where the property stolen has a value in excess of $500, and
[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 is taken from
three separate stores or retail establishments within one
county during a period of seven days or less and when the
aggregate value of the property which was the subject of each
theft exceeds $500.00 in value, commits a felony.
OCGA § 16-8-14 (b) (3).
even assuming without deciding that the date was a material
averment of Count 3 of the indictment and the State had to
prove that the aggregate shoplifting offenses happened within
a seven-day period or less, that period of time was
sufficiently alleged in the indictment here by saying that
the crimes occurred "on or about" May 27, 2014.
Moreover, there was no fatal variance because the evidence at
trial demonstrated that the shoplifting that occurred at the
three stores at issue in Count 3 occurred on the same day,
May 27, 2014.
Wallace's contention that his conviction under Count 3
was void under the precedent established by Apprendi
because the aggregate crimes provision in OCGA § 16-8-14
(b) (3) increased the penalty of the crime beyond the
prescribed statutory maximum is meritless. "Because the
sentence at issue was within the statutory maximum and did
not extend [Wallace's] punishment beyond the prescribed
range supported by the jury's verdict, Apprendi
simply does not apply to this sentencing
scheme."(Punctuation omitted.) Ray v. State,
338 Ga.App. 822, 34-35 (8) (a) (792 S.E.2d 421) (2016).
Wallace also contends that trial counsel was ineffective for
failing to impeach several witnesses, and in failing to point
out during closing argument the ...