a bench trial, appellant William Leroy Wimberly was found
guilty of felony murder, aggravated assault, and possession
of a firearm during the commission of a felony, in the death
of Christopher Strickland. He now appeals, asserting that the
evidence was insufficient, that he received ineffective
assistance of counsel, and that he was entitled to a new
trial based on newly discovered evidence. For the reasons set
forth below, we conclude these assertions are without merit
in the light most favorable to the verdict, the evidence
showed that Josh Strickland lived with and dated
Wimberly's daughter Brittney. A few days before July 29,
2014, Wimberly, while somewhat intoxicated, said in the
presence of others that he would kill Josh if he
"whipped" his minor granddaughter again. On July
29, Wimberly went to Josh and Brittney's home appearing
intoxicated from alcohol and drugs. He sat and spoke with
Josh, Brittney, and the victim, Josh's brother
Christopher Strickland. At one point the four began arguing,
and Brittney ordered Wimberly out of her home before she left
minutes after Brittney left, the victim went to
Wimberly's residence, and after a while, the two returned
to Josh and Brittney's home where Wimberly apologized to
Josh for his earlier behavior. Not long after Wimberly, Josh,
and the victim sat down to talk, Wimberly and Josh began
arguing again. Wimberly pulled out a pocket knife, but Josh
and the victim were able to disarm him and eject him from the
15 minutes later, Wimberly returned to Josh and
Brittney's home in his step-brother's
truck. The victim went outside to talk with
Wimberly while Josh stayed inside. About two minutes later,
the victim asked Josh to come outside, saying Wimberly wanted
to talk. After Josh came out and stood in the doorway, he
apologized to Wimberly for the fighting. The victim stood in
between Josh and Wimberly throughout the conversation. Josh
noticed that Wimberly had his hands behind his back. Wimberly
stared at Josh the entire time and, after the conversation
escalated, said, "well, I reckon I'm going to have
to take both of you out." The victim rushed off the
porch and tackled Wimberly. Josh rushed to help, but when he
approached Wimberly and the victim, they had already
separated. When Josh noticed Wimberly was holding a handgun,
he began to wrestle with him and noticed blood on the ground.
Josh was able to gain control of the gun, and after warning
Wimberly "to stop several times, " shot Wimberly.
Josh got up, looked at the victim who was on the ground and
mumbling, and asked him "if he was shot and he told me,
yes. He said, [Wimberly] shot me."
father, who lived nearby with Wimberly, heard the commotion
and came running. Josh made him get on his knees and held
Wimberly and his father at gunpoint. Seconds later, a
passerby pulled his vehicle up to the house. Josh ordered the
driver out and instructed the passenger to call 911. The
victim died at the scene of a gunshot wound to the center of
his chest that pierced his heart and liver. The medical
examiner testified that the entrance wound indicated that the
range of fire was "intermediate, " meaning in
general that the gun was fired at arm's length from the
Wimberly argues that the evidence is insufficient that he
committed aggravated assault because there was no evidence
that he is the one who shot the victim. He points to
Josh's statement to police that Josh did not see him
shoot the victim, and that Josh, the victim, and Wimberly
were all struggling over the gun when he saw blood.
On appeal from a bench trial resulting in a criminal
conviction, we view all evidence in the light most favorable
to the trial court's verdict, and the defendant no longer
enjoys the presumption of innocence. We do not re-weigh
testimony, determine witness credibility, or address
assertions of conflicting evidence; our role is to determine
whether the evidence presented is sufficient for a rational
trier of fact to find guilt beyond a reasonable doubt.
(Citations and punctuation omitted.) Dougherty v.
State, 341 Ga.App. 120, 123 (799 S.E.2d 257) (2017).
testified that when he jumped off the front porch, the victim
and Wimberly "had already started to separate. And I
went to jump on [Wimberly] and that's when I saw the gun
in his hand." Josh testified that he did not hear a
shot, but as he began to tussle with Wimberly, the victim was
already lying on the ground, not moving, "just kind of
rolling a little bit, " and that is when he noticed
blood on the ground. Josh stated further that his finger was
not on the trigger because Wimberly's hand was on the gun
and that he had to twist the gun out of Wimberly's hand.
The evidence also showed that the gun was fired at the
victim's chest at arm's length. The evidence
therefore was sufficient for the trier of fact to find that
it was Wimberly who fired the shot that killed the victim.
See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B)
(99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
Wimberly asserts that his trial counsel was ineffective.
To prevail on a claim of ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668 (104
S.C. 2052, 80 L.Ed.2d 674) (1984), an appellant must show
both that counsel's performance was deficient and that
the deficient performance prejudiced the defense.
(Citations and punctuation omitted.) Dunn v. State,
291 Ga. 551, 553 (4) (732 S.E.2d 524) (2012).
Wimberly argues that counsel should have called four
witnesses who testified at the hearing on the motion for new
trial. "Decisions about which witnesses to call at trial
are matters of trial strategy and tactics, and such strategic
and tactical decisions do not amount to deficient performance
unless they are so unreasonable that no competent attorney
would have made them under similar ...