SECOND DIVISION

ANDREWS, P. J.,

MCFADDEN and RAY, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

February 11, 2015

In the Court of Appeals of Georgia

A14A2073. HOWELL v. THE STATE.

A14A2074. HOWELL v. THE STATE.

RAY, Judge.

In two indictments, Thaddeus Octavius Howell was charged with various

offenses involving acts of domestic violence. The indictments were later joined by

consent and tried together in a single jury trial. Howell was convicted of false

imprisonment (OCGA § 16-5-41), family violence battery (OCGA § 16-5-23.1 (a),

(f)), interference with a 911 call (OCGA § 16-10-24.3), simple battery on a police

officer (OCGA § 16-5-23 (a), (e)), and obstruction of a law enforcement officer

(OCGA § 16-10-24) under the first indictment, and he was convicted of family

violence battery (OCGA § 16-5-23.1 (a), (f)), aggravated assault (OCGA § 16-5-21

(b) (2)), and false imprisonment (OCGA § 16-5-41) under the second indictment.
Howell now brings two identical appeals from the trial court’s denial of his motion

for new trial, contending that the trial court erred (1) in permitting the court reporter

to testify at the trial over his objection and (2) in charging the jury on aggravated

assault. Finding no reversible error, we affirm Howell’s convictions in Case No.

A14A2073 and dismiss the identical appeal as redundant in Case No. A14A2074.

On appeal from a criminal conviction, the defendant no longer enjoys the

presumption of innocence, and we view the evidence in the light most favorable to

support the jury’s verdict. Weeks v. State, 316 Ga. App. 448, 449 (729 SE2d 570)

(2012).

The evidence showed that on the morning of December 4, 2010, Dawn Cloud

was preparing to leave her house when Howell, who was Cloud’s live-in boyfriend

at the time, came home and an argument ensued. When Cloud asked Howell to leave,

he struck Cloud in the back of her head, put her in a headlock, and choked her to the

point that she could no longer breathe. Cloud attempted to call 911, but Howell

snatched the phone away from her and broke it into pieces on the floor. After Cloud

pressed the panic button on her car keys to activate her vehicle’s horn alarm, Howell

picked her up and “body-slammed” her onto the floor, wrestling the keys from her

hands. Cloud attempted to get away, but Howell physically restrained her and said

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“you’re not going anywhere.” During the incident, Cloud sustained visible injuries,

including scratches to her hands and arms and red marks on her neck. 

Cloud waslater allowed to leave the residence, and she immediately called the

police. The police officers who responded to the scene observed Cloud’sinjuries and

obtained statements from both of the parties. Howell admitted that he and Cloud had

been in a physical altercation that morning, but he could not explain how Cloud had

received her injuries. When the officers advised Howell that he was under arrest,

Howell resisted and got into a physical altercation with the officers, eventually

kicking one of them. The officers were able to subdue Howell with a taser, and he

was handcuffed and placed under arrest. 

The evidence at trial further showed that in January 2012 Howell became

involved in a romantic relationship with Lauren Holloway, eventuallymoving in with

her. Although Holloway later ended the relationship, she maintained contact with

Howell, and Howell kept a key to her residence. 

On the night of April 19, 2012, Holloway accompanied Howell to a memorial

service for one of hisfriends who had died in a motorcycle accident. Afterwards, they

returned to Holloway’s residence. In the early morning hours of April 20, 2012,

Holloway informed Howell that she did not want to be with him anymore; she told

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him to gather the rest of his clothing and personal effects that remained in the

residence and to get out. Howell became upset and pushed her, chased her through

the house, pushed her into a wall, grabbed her and threw her on the floor, and

punched her in the face with his fist.

After Howell left, Holloway called the police to report the attack. When the

responding officers arrived, Holloway told them what had happened, and the officers

took photographs of her injuries.

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Howell knew that Holloway had contacted the police, and he sent several text

messages to Holloway to tell her that he loved her. He later contacted Holloway to

ask her what she had told the police. 

On the morning of April 30, 2012, Holloway was asleep on the couch in her

home when she awoke to find Howell on top of her. When Holloway got up to use the

bathroom, Howell stood outside the bathroom door and asked her what she was

doing, specifically asking her if she was calling the police. When she opened the

door, Howell again asked her “What did you do? Did you call the police?” 

Holloway then went to her living room to look for her keys so that she could

leave. As she was opening the front door, Howell came up behind her and struck her

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 Photographs of her visible injuries were admitted into evidence at trial. 

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on the side of her head with a handgun, knocking her down. Howell then grabbed her,

pushed her onto the couch, put the gun to her head, and told her not to scream. After

the situation calmed down, Holloway was able to get up and go to the bathroom to

check on her head wound, which was swollen and bleeding. Howell followed

Holloway to the bathroom to apologize, and Holloway begged him to “please get out

before you kill me for real.” 

Howell eventually left the residence, and Holloway immediately went to the

police station to report the attack. Photographs were taken of her head injury, which

were admitted into evidence at trial. Following this incident, Howell continued to

contact her to tell her that he loved her. 

In a subsequent incident, Howell was following Holloway in his vehicle when

he pulled up alongside Holloway’s car, pointed a gun at her, and demanded that she

pull over. Holloway slammed on her brakes, turned her car around, and drove away

in the opposite direction. Howell managed to catch up to Holloway and side-swiped

her car. After blocking her car to prevent her from driving away, Howell began

shooting at Holloway’s car. Although Holloway was not struck by any of the bullets,

she did sustain injuriesfrom the broken glass. Howell then drove away in his vehicle,

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and Holloway called 911.2 Photographs depicting her injuries and her damaged car

were introduced at trial. Although Holloway obtained a protective order against

Holloway the day after this incident, he continued to call her from jail to profess his

love for her. 

In addition to the above evidence, the State introduced similar transaction

evidence from three other women to establish that Howell had a pattern of

committing violence against women. 

1. During the trial, the trial court took a recess during Holloway’s testimony.

Before the jury came back into the court room to continue with her testimony, the

court reporter observed Howellsilently “mouth” the words “I love you” to Holloway,

who was sitting on the witnessstand. Later, during cross-examination of Howell, the

State asked him if he had done so, and Howell denied it. The trial court then allowed

the State to call the court reporter to testify as a rebuttal witness over Howell’s

objection.

3 On appeal, Howell argues that the trial court erred when it permitted the

court reporter to testify for the State. Specifically, he contends that (i) the court

2

In the trial at issue here, Howell was not being prosecuted for any offenses

that occurred during this incident.

3

 Another court reporter was called in to take down this testimony. 

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reporter’stestimony constituted improper impeachment on a collateralmatter, and (ii)

that allowing the courtreporter to testify impacted the integrity and impartiality of the

proceedings. We find his arguments to be unpersuasive.

(a) As an initial matter, we note that Howell raised in his brief the additional

argument that the State’s questioning of Howell with regard to his silent gesture to

Holloway during the recess was improper because it exceeded the scope of crossexamination. However, Howell did not raise this issue as an enumeration of error on

appeal. Therefore, to the extent he is challenging the State’s cross-examination, his

argument provides no basis for appellate review. See Brown v. State, 310 Ga. App.

835, 835, n. 1 (714 SE2d 395) (2011) (providing that a party cannot expand his

enumerations of error through argument or citation in his brief, and claims not

enumerated as error will not be reviewed).

(b) Howell contends that the trial court erred in allowing the court reporter to

testify as a rebuttal witness, arguing that the testimony constituted improper

impeachment on a collateral matter. We disagree.

Although a witness may not be impeached because of a discrepancy in his

testimony regarding a matter that is wholly irrelevant to the case, a witness may be

impeached about a collateral issue that is indirectly material to the case. See Moody

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v. State, 279 Ga. App. 440, 445 (5) (631 SE2d 485) (2006). If the jury believed that

Howell told Holloway that he loved her just before she resumed her testimony, the

jury could infer that Howell had intended to influence her testimony.

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It is well-settled

that “evidence of a defendant’s attempt to influence or intimidate a witness can serve

as circumstantial evidence of guilt.” (Citations omitted.) Kell v. State, 280 Ga. 669,

671 (2) (a) (631 SE2d 679) (2006). Under the particular circumstances presented in

this case, the issue of whether Howell made such a gesture to Holloway was not

merely collateral, but was arguably relevant to the issue of guilt. Therefore, the court

reporter’s testimony on this issue was not improper.

Howell also arguesthe court reporter’simpeachment testimonywasinherently

prejudicial because he was precluded by law from calling the judge and/or the bailiff

as witnesses to rebut the court reporter’s testimony. However, Howell has failed to

establish prejudice because he has not shown that the judge or the bailiff possessed

knowledge of facts that could have refuted the court reporter’s testimony. Moreover,

4 We recognize that a person’s use of the phrase “I love you” does not

necessarily mean that the person has an ominous or ulterior motive for making such

a statement. Indeed, this type of gesture is a show of affection that is typically well

received. However, because Howell denied making such a seemingly innocuous

gesture, a reasonable inference could be drawn that he had an ulterior motive for

making it -- i.e., that he had intended to influence her testimony.

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Howell has notshown that there were no other witnessesin the courtroom who could

have testified or that he was precluded from calling any other witnesses in rebuttal.

(c) Lastly, Howell contendsthat allowing the court reporter to testify on behalf

of the State eradicated the integrity and fundamental fairness of the trial. We find no

reversible error.

Howell cites Slakman v. State, 272 Ga. 662 (533 SE2d 383) (2000), for the

proposition that a court reporter should not be allowed to testify as a witness in any

proceeding in which she is also serving asthe official transcriber of witnesstestimony

because the jury would automatically perceive her as a credible witness. However,

our Supreme Court’s holding in Slakman did not paint this issue with such a broad

brush.

In Slakman, the defendant, who was on trial for murdering his wife, made an

alleged confession outside the presence of the jury during a recessin the proceedings.

Although the defendant’sstatement was not transcribed, it was overheard by the court

reporter and captured on her audiotape. As there was a legitimate factual dispute

about the contents of the defendant’s statement, the court reporter was permitted to

testify asto the inculpatory version of the defendant’sstatement which she personally

heard, and she then testified that her audiotape “verified” that version. Thereafter, the

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audiotape was played for the jury. Id. at 664-665 (2). In reversing the defendant’s

conviction, our Supreme Court found that “because there was an audiotape of [the

defendant’s]statementfromwhich the jury could make its own determination of what

had been said, the court reporter should not have been permitted to testify as to what

she heard or to testify that the audiotape ‘verified’ her testimony.” (Footnote omitted.)

Id. at 665 (2). The Court further found that the error was not harmless, considering

the jury’s perspective of the capacity in which the court reporter served at the trial in

conjunction with the trial court’s utter failure “[to] instruct the jury that it was to

determine for itself what wasrecorded on the audiotape or the manner in which it was

to resolve any discrepancies between the court reporter’s testimony and the contents

of the audiotape.” Id. at 665-666 (2).

Here, by contrast, there was no recording of Howell’s gesture to Holloway for

the jury to evaluate. Furthermore, the court reporter did not improperly bolster her

own testimony; she merely testified thatshe had observed Howell “mouth” the words

“I love you” to Holloway during the recess. Most importantly, the trial court

instructed the jury that it was to determine the credibility of the court reporter on the

same basis as any other witness. Based on these facts, we believe that the trial court

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acted properly within its discretion in allowing the court reporter to testify5

. Even if

it was error to allow the testimony, such error was harmless in light of the

overwhelming evidence of Howell’s guilt.

2. Howell contends that the trial court erred in charging the jury on aggravated

assault when it instructed the jury that a handgun is a deadly weapon as a matter of

law and failed to instruct the jury that the issue of whether the handgun constituted

a deadly weapon in this case was solely a matter for its consideration. As Howell’s

trial counsel did not raise an objection to the trial court’s charge, “the matter is

subject only to plain error review on appeal.” (Citations omitted.) Givens v. State, 294

Ga. 264, 266 (2) (751 SE2d 778) (2013) (citations omitted). See OCGA § 17-8-58

(b).

In order to reverse on the basis of plain error in this case, Howell must satisfy

the burden of establishing all of the following elements: that the charge (or the failure

to charge) was erroneous; that the error was obvious; and that the error likely affected

the outcome of his trial. See Johnson v. State, 295 Ga. 615, 617-618 (2) (759 SE2d

837) (2014); Shaw v. State, 292 Ga. 871, 873 (2) (742 SE2d 707) (2013); State v.

5 As Justice Hunstein similarly pointed out in her dissent in Slackman, supra

at 673, it was (the Defendant’s) own behavior in uttering the statement in (the court

reporter’s) presence which caused her to be a witness.

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Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011). If Howell establishes all of these

elements, we have the discretion to reverse “if the error seriously affects the fairness,

integrity or public reputation of the proceedings below.”(Citation omitted.) Kelly,

supra. As our Supreme Court has noted, “[s]atisfying all four prongs of this standard

is difficult, as it should be.” (Citation and punctuation omitted.) Id.

In this case, the aggravated assault count of the indictment accused Howell of

committing an assault . . . “with a deadly weapon, a handgun, when he struck Lauren

Holloway in the head with [the] handgun[.]” In its instruction to the jury, the trial

court correctly charged that the State had the burden of proving the material element

that the assault was made with a deadly weapon, as alleged in the indictment.

However, the trial court further charged the jury that “[a] handgun[,] when used as

such[,] is a deadly weapon as a matter of law.” Thus, it is argued, the later portion of

the charge relieved the State of its burden to prove that the handgun, when it was used

to strike Holloway, constituted a deadly weapon.

In Byrd v. State, 325 Ga. App. 24 (752 SE2d 84) (2013), a case in which the

defendant wassimilarly charged with aggravated assault for striking the victim in the

head with a handgun, we found that the defendant’s trial counsel was ineffective for

failing to object to the jury instruction that “[a] firearm, when used as such, is a

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deadly weapon as a matter of law.” Id. at 27-28 (2) (a). In so holding, we found that

the charge was not applicable to the facts of the case because the handgun was not

alleged to have been used in the ordinary manner in which a gun is used — i.e. by

pointing the gun or using it to shoot at someone; it was alleged to have been used as

an object to strike the victim. Id. at 28 (2) (a) In reversing the aggravated assault

conviction, we found that there was a reasonable probability that, but for counsel’s

error, the outcome of the trial would have been different because there was absolutely

no evidence to support a conclusion that the handgun had been used as a deadly

weapon — i.e., no evidence of degree of force used, injury, likelihood of injury, or

apprehension of injury. Id.

Here, by contrast, there was overwhelming evidence to establish that the

handgun constituted a deadly weapon. The evidence was undisputed that Holloway

was struck on the side of her head with the handgun so violently that it knocked her

down and that the blow she sustained caused the side of her head to swell and bleed.

Moreover, Holloway’s perception of the degree of force that Howell had used against

her was apparent because she immediately begged him to “please get out before you

kill me for real.” See generally Ortiz v. State, 292 Ga. App. 378, 381 (2) (665 SE2d

333) (2008) (where the evidence showed, without conflict, that defendant struck the

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victim so hard with a handgun that it caused the victim’s head and face to bleed and

victim testified that feared he would be killed, the handgun was per se a deadly

weapon).

Although we agree that the trial court’s charge would have been error if it had

stated that the use of a gun in committing an assault would always constitute an

aggravated assault, this it did not do. The jury was told that the State must prove that

the assault was with a deadly weapon and that a handgun could be one, depending on

how it was used. The jury was free to decide either way. In any event, even if these

instructions were erroneous, Howell has failed to establish that such error likely

affected the outcome of histrial. Kelly,supra at 33 (2) (a). In other words, Howell has

failed to show that, had the correct charges been given, it was likely that jury would

have acquitted him of the aggravated assault charge. Moreover, in light of the

overwhelming evidence of Howell’s guilt, we find that the error did not seriously

affect the fairness, integrity or public reputation of the proceedings.

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 Id.

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“Unlike a harmless-error analysis, where the appellee bears the burden of

showing that an error did not likely affect the outcome below, a plain-error analysis

requires the appellant to make an affirmative showing that the error probably did

affect the outcome below.” (Citation omitted.) Wagner v. State, 311 Ga. App. 589,

594, n. 3 (716 SE2d 633) (2011) (Blackwell, J., concurring specially). “[T]he hurdle

to establishing plain error is high, . . . and . . . the failure to specifically articulate how

the alleged error satisfies this high standard increases the likelihood that . . . claims

in this regard will be rejected.” Kelly, supra at 32 (1), n. 2.

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As Howell has failed to satisfy the third and fourth prongs of the plain error

analysis set forth in Kelly, supra and its progeny, we find no reversible error. 

3. In Case No. A14A2074, Howell asserts the same errors as those asserted in

Case No. A14A2073. We therefore dismiss Case No. A14A2074 as redundant. See

First Southern Bank v. C & F Services, Inc., 290 Ga. App. 305, 309 (5) (659 SE2d

707) (2008).

Judgment affirmed in Case No. A14A2073, and Case No. A14A2074 is

dismissed. Andrews, P. J., and McFadden, J., concur.

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