1 The crimes occurred on J une 11, 2011. Via indic tment, appell ant wa s cha rged with malice m urder, fou r cou nts of felon y murd er, agg ravate d assa ult, three c oun ts of cr uelty to childr en in the firs t degree and one count of cruelt y t o childr en in the second degree . Tri al commenced on July 30, 2012. The jury returned its verdict on August 7, 2012, findi ng appell ant guilt

y of a ll cha rges. The tri al court sentence d appell ant to l ife without the poss ibility of parole for mali ce murder and twenty years consecuti ve for cruel ty to chil dren in the fir st degr ee. The remaining c ounts were merged or vacated. See M alcolm v. State , 263 Ga. 369 (43 4 S E2 d 47 9) (1 993 ). Appellant file d a motion for

new trialon August 10, 2012
. The motion was amended on Januar y 10, 2013, and deni ed on June 24, 201 3
. Appellant

file d a notice of ap peal o n July 1, 2 013 . The case w as do ckete d in this C ourt in the J anu ary 20 14 t erm and sub mitte d fo r de cisio n on the b rief s. 295 Ga. 81 FINAL C OPY
S14A000 9. WEST v. THE STATE. THOMPSON, Chief Ju stice. Appella ntStephen

Clark W est wa s convicted of malice m urder in connecti on with th e dea

th of Kaylee K

ipp and c ruelty

to children in the

first degree for causin g Kaylee’s older sisters, S. K. and A. K., severe phy sical and mental pain. 1 He appeals, asserting , i nter alia, the State violated his right to remain silent. Find ing no erro r, we affirm. 1. Viewing the evid ence in a light fa vorableto the ju

ry’s de term ination that appell ant

is guilty, we find the following: On June 12, 20 11, at 12:37 p.m.,
eme rgency

personne l were

dispatched to appell ant’s a partm ent aft er rec eiving2 Deanna Renee Kipp was convicte d of the fel ony murder of Kay lee, the a

buse of S. K. and A. K., concea ling t he death of anot

her, and maki ng false s tate ments. Her c onvicti ons were affirmedon app eal; how ever, the senten ces on sev eral counts w ere vacated as a matter of law and the c ase wa s rem and ed for re sen tenc ing
. Kip p v. S tate , 294 Ga. 55 (751 SE2d 83) (20 13)
. 2 a call that a two-yea

r-oldchild was not b reathing. The emergency team arrived at the apartm ent withinfour minute s. A pa

rame dic found K

ayle e’s col d, stiff, and discolored body. The paramedic believed that Kaylee had been dead for an extended perio d of time. Appella ntlived in the apartment wit h his girlfriend, Dea

nna Re nee Ki

pp, 2 and her thre e daughters, S . K., A. K. and Ka ylee . He w as at ho me from 9:30 p.m. on the nigh

t of June 11 , 2011, unt

il 11:30 a.m. o n June 12, b ut he was at work when the eme rgency

responde rs arrive d. Thenight bef ore Ka ylee ’s body
was discovered, appella

nt spanked S. K. and A. K. with a belt. S. K. hear d Kaylee being spanked and crying do wnstairs. The next day, S. K. found Kaylee lying fac e down in a portable crib. She toldhermothe r Kayl ee woul d not wake up and felt cold. An auto psy revealed
numero us injuries to Kay lee’s faceand head consisten t with blun t force trauma. Accord ing to the medical examiner, K aylee wa s struck at least six times, likely with an adul t fist. She died as a re sult of

swelling to h er brain from blu nt force3

trauma. The m edical exam iner observed ski n lesio ns at Ka ylee ’s diaper line which were most likely caus ed by postmortem ins ect activity. S. K. a nd A. K. also sust ained a number of gruesom e injuri es, inc luding cigarette burns, bil ateral periorbi tal bruises, and pattern inju ry bruis es. Th ese injuries were consistent wi th severe abuse. App ellant whipped and beat the girls with a belt, pinched them, and pulle d them by their hair. He al so shoved S. K.’s face into a pillow an d held it there to make her stop crying
. Kayle e’s blood and s aliva were d etec ted on a

pair of denim shor

ts found in appellant’s b edroom. The size o f the shor ts was c onsistent

with the size of appell ant — not Deanna Kipp — and indica ted that appellant h eld Kayle e’s face down in his lap as he hit her. Police intervi ewed a

ppella nt twic e after discovering Kaylee’s body. The first interview lasted a l ittle more than one hou r; the second in terview lasted approximately

three hours
. Appella

nt was advised of h is Miranda rights at the start of the se cond interview. At no point di d appellant invoke his right to remain silent. Police noted a

number of inconsi stenci es in appellan t’s st ateme nts. Appella nt to ld police

he had t rouble remem

bering spe cific detail s beca use he4

was “probab ly a little drunk .” Given an oppo rtunity to wr ite an apology, appell ant claimed he “blacked out” an ddid not re mem ber touc hing Kaylee, but was “so s orry” i f he did. The evidence was suffi cient to enable a n y rati onal tri er of fa ct to fin d appell ant guilty beyond a reasonable doubt of malic e murd er and cruelty to children. Jackson v. Virginia , 443 U. S. 307 (99 SC t 2781, 61 L E2d 560) (1979). See also McClellan v. Sta te , 274 Ga. 81 9, 819-820 (1 ) (a) (561 SE2d 82) (2002); Loren v. State , 268 Ga . 792, 794 ( 1) (493 SE2d 1 75) (1997). 2. On direc t exam

ination, the State asked D r. Smi th, a foren sic pat hologist who perform ed the a

ut opsy on K ayle e, a n

umber of questi ons about K ayle e’s injuries. In his response, the pathologist te stified as follows: Bruises do occur

acci dent ally in children; chi ldren fall over, childr en bump their he ad, tha t sort of th ing. I ha

ve to bevery cautio us when I’m looki ng at these inju ries and interp reting them that I get as much informa tion as I can a

bout these

injuries so that I’m not overc alling or

underca lling something. Now I would expect as part of the holistic sort of approach to this dea th investigati on , that if the child occurred — this injury oc curred o n the chi ld as pa rt of its no rmal rou gh and tumble p lay, ther e would be some explana tion f rom t he caretakers as to when it occurred, how it occurre d, that

sort of thing. Appella ntclaim s the ad

miss ion of this testimony was e rror because it5

impugned his right to remain silent. Howev er, this issu e w a s not properly preserved for revie

w beca use appellant did not object below. Tollette v. State , 280 Ga. 100, 1 03 (6) (6 21 SE2d 7 42) (200 5). Appella ntalso as serts tr

ial cou nsel wa s ineffe ctivefor failing to object to the patholo gist’s testi mony. We disagree.
[A]ssum ing arguendo th at an objection t o the offend ing ar g ument wouldhave had m erit, [appellant] has not shown a reasonable probabilitythat the

outcom e of thetrial w ould have been di fferen

t had counsel made

the objection. See Lambert v. Sta te , 287 Ga . 774, 7 77 (2) (700 SE2d 354) (2010) (where evidence of guilt i s overwh e lming, a defendant cannot demonstrate the requ ired prejudic e under Strickla

nd ).

Sanders v. State , 290 Ga. 637, 641 (5) (723 SE2 d 436) (2012). Evidenc e of appell ant’s systematic

abuse of S. K. and A. K., the inconsistenci es in appell ant’s state ments , his ina bility to remember w

hat happ ened to Kayle e, and the presence of Kay lee’s blood and s aliva o n appell ant’s denim shor ts, le ad us6

to conclude that app ellan t cannot carry the burden o f proof o n the prejud ice pron g of h is ine ffecti ve assi stance o f coun sel clai m. Judgme nt affir

med. All the

Justice s concur .

Decid ed April

22, 2014. Murder. Hall Sup erior C ourt. Be fore Judge Fuller. Steven A. Miller , for appellant. Lee Darragh, District Attorney, Kelley M. Roberts on, Assistan t District Attor ney, Samue l S. Olens, Atto rney G eneral, Patr icia B . Atta

way B urt on , Deputy Attorney General, Paula K. Smith, Senior Assista nt Attorney General , Ryan A. Kolb, Assist ant Attorney General , for appellee.