MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.
appeal from his conviction for family violence battery and
simple assault, Jerry Wayne Pettis argues that the evidence
was insufficient as to the assault, that trial counsel was
ineffective, and that the trial court erred in requiring him
to reimburse the State for his defense costs. We find no
error and affirm.
appeal from a criminal conviction, we view the evidence in
the light most favorable to the verdict, with the defendant
no longer enjoying a presumption of innocence."
(Citation omitted.) Reese v. State, 270 Ga.App. 522,
523 (607 S.E.2d 165) (2004). We neither weigh the evidence
nor judge the credibility of witnesses, but determine only
whether, after viewing the evidence in the light most
favorable to the prosecution, "any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt." (Citation and emphasis
omitted.) Jackson v. Virginia, 443 U.S. 307, 319
(III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
viewed in favor of the jury's verdict, the record shows
that on August 28, 2014, Pettis was living with his wife and
her teenage son when he began arguing with his wife in the
laundry room. The son did not confront Pettis because Pettis
had previously choked him. When Pettis demanded the keys to
the couple's car and attempted to get them from his
wife's pockets, she resisted, at which Pettis grabbed her
by the arms and threw her to the ground, where she landed on
her elbows and knees. Pettis then grabbed the back of his
wife's head, pushed it down into the floor, and twisted
her arm behind her back. When Pettis told his wife that she
was "not going anywhere," she went back into the
house, where her son saw her injuries, including a welt on
her forehead. The son then told Pettis, "You can't
keep my mom here." At this, Pettis charged the son, who
retreated into the house. When Pettis walked away from the
door of the house, the victims escaped to a neighbor's
house, where they called 911.
victims made statements describing these events to officers
arriving at the scene, but contradicted some of the details
at trial, perhaps because, as they testified, they were
afraid of Pettis. The State introduced a certified copy of a
conviction arising from the prior choking incident. Pettis
was charged with two counts of family violence battery as to
his wife and one count of simple assault as to her son. After
a jury found Pettis guilty of all three crimes, he was
convicted and sentenced to five years with three to serve.
His out-of-time motion for new trial was denied on the
merits, and this appeal followed.
Pettis challenges the sufficiency of the evidence against him
only as to the assault charge.
person commits the offense of simple assault when he or she
"[c]ommits an act which places another in reasonable
apprehension of immediately receiving a violent injury."
OCGA § 16-5-20 (a) (2). The crime of simple assault
"is complete if there is a demonstration of violence,
coupled with an apparent present ability to inflict injury so
as to cause the person against whom it is directed reasonably
to fear that he will receive an immediate violent injury
unless he retreats to secure his safety." (Punctuation
and footnote omitted.) Daniels v. State, 298 Ga.App.
736, 737 (681 S.E.2d 642) (2009). Moreover, "assault is
an attempted battery, so the state must show that the
defendant made a substantial step toward committing the
battery." (Punctuation and footnote omitted.)
it was for the jury to determine whether, in light of the
prior difficulties between them, Pettis's act of charging
his stepson placed him in reasonable fear of receiving a
violent injury. Daniels, 298 Ga.App. at 738
(evidence including that a defendant blocked the victim from
escaping his presence as he shouted at her "authorize[d]
the jury to find that [the victim] feared she would receive
an immediate violent injury and that her fear was
reasonable") (punctuation and footnote omitted). The
evidence outlined above sufficed to sustain Pettis's
conviction as to all of the charges against him. OCGA
§§ 16-5-23.1 (defining family violence battery),
16-5-20 (a) (2) (defining simple assault); Jackson,
Pettis argues that trial counsel was ineffective when he
failed to object to portions of the prosecutor's closing
argument. We disagree.
ineffective assistance of counsel, a defendant must show that
counsel's performance was deficient and that the
deficient performance prejudiced the defense. Smith v.
Francis, 253 Ga. 782, 783 (1) (325 S.E.2d 362) (1985),
citing Strickland v. Washington, 466 U.S. 668 (104
S.Ct. 2052, 80 L.Ed.2d 674) (1984). As to deficient
performance, "every effort must be made to eliminate the
distorting effects of hindsight," and the trial court
"must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance." (Citation and punctuation
omitted.) White v. State, 265 Ga. 22, 23 (2) (453
S.E.2d 6) (1995). As to prejudice, a defendant need only show
"a reasonable probability of a different outcome"
due to trial counsel's deficient performance.
(Punctuation and footnote omitted.) Cobb v. State,
283 Ga. 388, 391 (2) (658 S.E.2d 750) (2008). Finally, the
question of ineffectiveness is a mixed one of both law and
fact: "we accept the trial court's factual findings
and credibility determinations unless clearly erroneous, but
we independently apply the legal principles to the
facts." (Footnote omitted.) Suggs v. State, 272
Ga. 85, 88 (4) (526 S.E.2d 347) (2000).
Pettis first objects to the State's assertions in closing
argument that the victim was part of a cycle of violence
characteristic of abused women, including self-blame and
false reconciliation, with the victims sometimes
"pos[ing] more of a threat to [a police] officer than
the defendants do or the perpetrators" and eventually
"working against" the State's case, as outside
the scope of the evidence. Pettis also objects to the
State's assertion that the victim had been "nasty to
[the prosecutor's] office" and to the prosecutor
these victims' refusal to stand by their statements at
the scene, the State's characterization of them as
hostile witnesses was a reasonable extrapolation from the
evidence presented at trial, and any objection would have
been meritless. See Hendrix v. State, 298 Ga. 60, 66
(2) (d) (779 S.E.2d 322) (2015) (defense counsel was not
ineffective for failing to object to prosecutor's
comments during closing argument regarding witness
intimidation, which "drew on reasonable inferences from
admissible evidence and the trial proceedings" and was
"within the wide realm of acceptable closing
argument") (citation omitted); Lewis v. State,
317 Ga.App. 218, 225 (5) (735 S.E.2d 1) (2012) (when
witnesses "recanted or minimized their initial
complaints" against a perpetrator of domestic violence,
it was highly improbable that a witness's improper
testimony about the cycle of domestic violence contributed to
the guilty verdict).
even assuming that the State's argument was improper and
that counsel's failure to object to that argument
amounted to deficient performance, "the trial court
instructed the jury that closing arguments were not to be
considered as evidence[.]" Grier v. State, -
Ga.App. - (2) (b) (Case No. S19A0634, decided May 20, 2019).
In light of the evidence against Pettis, including the
wife's written statement to police on the night of the
incident, Pettis's other convictions arising from his
prior difficulties with the victims, and the wife's
testimony that she did not remember the circumstances of
those prior ...