FOURTH DIVISION

DILLARD, C. J.,

RAY and SELF, 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 12, 2018

In the Court of Appeals of Georgia

A17A1804. CUYLER v. THE STATE.

DILLARD, Chief Judge.

Willie Cuyler appeals his convictionsfor attempted armed robbery, aggravated

assault, first-degree burglary, and related weapons charges, arguing that the trial court

erred by denying his motion to sever his trial from that of a co-defendant, failing to

grant a mistrial or to give an adequate curative instruction when the victimimproperly

commented on Cuyler’s character, and failing to merge his attempted armed-robbery

and aggravated-assault convictions for sentencing purposes. He also contendsthat his

trial counsel was ineffective for failing to move for a mistrial when the State

presented improper character evidence and failing to call certain witnesses to testify

in his defense. For the reasons set forth infra, we affirm. 
Viewed in the light most favorable to the jury’s verdict,

1

the record shows that

on August 21, 2013, at approximately 11:40 p.m., a patrol officer with the Richmond

County Sheriff’s Department responded to a residence where shots had reportedly

been fired and one person was “down.” When the officer arrived, he noticed that the

front door of the apartment had been kicked in, and there was blood on the ground.

The officer walked into the apartment, where he found Marco Gilbert lying on a sofa

“holding some gunshot wounds.” But Gilbert was “fully alert and conscious” and able

to tell the officer what happened. The officer observed that Gilbert had been shot a

couple of times in his abdomen and once in his leg. Shortly thereafter, Gilbert was

taken to a hospital for treatment and additional officers arrived on the scene to

investigate. In the few minutes before the ambulance arrived, Gilbert told the officer

that Andre Brown was one of his attackers and the other perpetrator (later identified

as Cuyler) went by the nickname “Main-Main.”2

1

See, e.g., Hartzler v. State, 332 Ga. App. 674, 675 (774 SE2d 738) (2015).

2 At trial, Gilbert identified Cuyler and Brown as his assailants, and Cuyler

confirmed that people knew him as “Main-Main.” 

2
According to Gilbert, he had recently moved into the apartment with a friend,

who was also Cuyler’s cousin. Gilbert knew Cuyler because they played pool and had

drinkstogether a few times, but Gilbert did not know him well. Gilbert had, however,

known Brown and his family since childhood. And on the night in question, Gilbert

was home alone watching a movie when he “heard a loud kick at [his] door[,]” which

caused the door to begin coming off of its hinges. Gilbert looked toward the door and

saw Cuyler standing in the doorway. When Cuyler kicked the door a second time, it

flew open, and Gilbert, who attempted to run away, heard gunshots being fired inside

the home. Then, after the gunshotsstopped, Gilbertsaw that Cuyler wasstillstanding

in the doorway, and he asked Cuyler, “this how y’all gonna play it, brother?” Cuyler

then told Gilbert to “give it up” and began shooting at him again.

3 Cuyler ran toward

Gilbert and attempted to grab him, but Gilbert was able to escape through the front

door. 

3

 Gilbert testified that he had approximately $800 in his pocket at the time of

the attempted robbery, but Cuyler and Brown did not steal it. He further testified that

he had sold drugs in the past, so when Cuyler told him to “give it up[,]” Gilbert

believed that Cuyler was demanding money, drugs, or any other valuable itemsin the

home. 

3
Then Brown, who was waiting just outside the door, tripped Gilbert, causing

him to fall on the ground. Brown jumped on top of Gilbert, pointed a gun at him, and

repeatedly attempted to pull his pants down. Although Gilbert was eventually able to

stand and start running away, he stumbled and fell again. Brown followed Gilbert,

stood over him, shot him twice in the stomach, and then ran from the scene. By this

time, Cuyler had also fled. In total, Gilbert was shot five times during the home

invasion. 

Following the attack, Cuyler and Brown were charged, via indictment, with

attempted armed robbery, aggravated assault, first-degree burglary, and related

weapons charges. Prior to trial, Cuyler moved to sever his trial from that of Brown’s,

but after a hearing on the matter, the motion was denied. Subsequently, Cuyler and

Brown proceeded to a joint jury trial and were both convicted of all charged offenses.

Cuyler then filed a motion for a new trial, which was denied following a hearing. This

appeal by Cuyler follows.

4

4

 A review of this Court’s docket reveals that Brown does not currently have

a separate appeal from his convictions pending before this Court and he is not a party

to this appeal. 

4
1. Cuyler first argues that the trial court erred in denying his motion for a

severance because there was confusion as to the evidence and the law applicable to

each defendant and he and Brown had antagonistic defenses.

5

 We disagree. 

OCGA § 17-8-4 (a) provides that when two or more defendants are jointly

indicted for a non-capital offense, “such defendants may be tried jointly or separately

in the discretion of the trial court.” And a trial court’s decision to deny a motion to

sever “will be affirmed absent an abuse of discretion.”6 Nevertheless, a trial court

5 The vast majority of the “argument and citation of authority” section in

Cuyler’s appellate brief provides no citations to support his representations of the

record, including some instances when he purports to quote the trial transcript. It is

not the function of this Court to “cull the record on behalf of a party in search of

instances of error[,] [and] [t]he burden is upon the party alleging error to show it

affirmatively in the record.” Patterson v. State, 327 Ga. App. 695, 696 (1) (761 SE2d

101) (2014) (punctuation omitted). Nevertheless, given the limited and

straightforward nature of the evidence presented at trial and the citations provided by

the State, we address the substance of Cuyler’s claims to the extent possible. See id.

(noting that the deficiencies in the appellant’s brief would authorize this Court to

dismiss the appeal, but addressing the merits of the appeal to the extent possible, as

the State had provided sufficient citationsto the record in its brief); Court of Appeals

Rule 25 (c) (2) (i) (“Each enumerated error shall be supported in the brief by specific

reference to the record or transcript. In the absence of specific reference, the Court

will not search for and may not consider that enumeration.”). Additionally, we

caution the State that, when filing future briefs with this Court, it should consult

Court of Appeals Rules 2 and 24, which detail the format in which appellate briefs

must be prepared.

6

Jones v. State, 277 Ga. App. 185, 186 (626 SE2d 142) (2006); see Cain v.

State, 235 Ga. 128, 128-29 (218 SE2d 856) (1975) (“Since the grant or denial of a

5
should sever the trials of co-defendants whenever it is “necessary to achieve a fair

determination of the guilt or innocence of a defendant.”7 But in order to show

entitlement to a severance, “the burden is on the defendant to do more than raise the

possibility that a separate trial would give him a better chance of acquittal.”8

Indeed,

to satisfy this burden, a defendant “must make a clear showing of prejudice and a

consequent denial of due process.”9 Finally, as our Supreme Court has explained, in

determining whether to grant a motion to sever, a trial court should consider:

motion to sever is left to the discretion of the trial court, its ruling will be overturned

only for an abuse of discretion.”); Avellaneda v. State, 261 Ga. App. 83, 87 (581

SE2d 701) (2003) (“Whether to grant or deny a severance should be decided on a

case-by-case basis and is an issue that is left to the discretion of the trial court.”).

7 Avellaneda, 261 Ga. App. at 87; see Morris v. State, 204 Ga. App. 437, 438

(1) (419 SE2d 733) (1992) (“Despite the benefits of joinder, it is clear that an

accused’s right to a fair trial takes precedence. If the consolidation of defendants at

trial hinders a fair determination of each defendant’s guilt or innocence, then the

defendants must be tried separately.” (punctuation omitted)).

8 Avellaneda, 261 Ga. App. at 87 (punctuation omitted); accord Cain, 235 Ga.

at 129.

9 Avellaneda, 261 Ga. App. at 87 (punctuation omitted);see Green v. State, 274

Ga. 686, 688 (2) (558 SE2d 707) (2002) (“It is incumbent upon the defendant who

seeks a severance to show clearly that he will be prejudiced by a joint trial, and in the

absence of such a showing, the trial court’s denial of a severance motion will not be

disturbed.”).

6
(1) whether the number of defendants will confuse the jury as to the

evidence and the law applicable to each defendant; (2) whether, despite

cautionary instructions from the court, there is a danger that evidence

admissible against one defendant will be improperly considered against

another defendant; and (3) whether the defenses of the defendants are

antagonistic to each other or to each other’s rights of due process.

10

Bearing these guiding principles in mind, we turn now to Cuyler’s specific claim. 

As to whether the number of defendants is potentially confusing to the jury as

to the evidence and the law, our Supreme Court has held that “[m]erely because three

defendants are tried together is not cause for a severance.”11 And here, there were

only two defendants tried together, and Cuyler fails to explain how trying him and

Brown together could have confused the jury, especially given that the jury heard

testimony regarding a relatively brief and straightforward attempted robbery and the

assault of a single victim.

12

Indeed, as the co-defendants were alleged to have acted

10 McClendon v. State, 299 Ga. 611, 615 (3) (791 SE2d 69) (2016); accord

Satterfield v. State, 256 Ga. 593, 596 (3) (351 SE2d 625) (1987).

11 Green, 274 Ga. at 688 (2) (emphasis supplied); see Satterfield, 256 Ga. at

596-97 (3) (affirming the trial court’s denial of defendants motions to sever when

there were three co-defendants and the two who sought a severance failed to show the

requisite prejudice to require reversal). 

12

See, e.g., Butler v. State, 290 Ga. 412, 413 (2) (721 SE2d 876) (2012)

(holding that severance of the co-defendants’ trials was not warranted when “[t]here

7
in concert to commit the same crimes on a single occasion, and the evidence and law

applicable to each defendant was essentially the same, it is unlikely that trying them

together confused the jury.

13

As to whether evidence against one defendant is admissible against the other,

Cuyler maintains that he was entitled to a severance because the State presented

evidence that Brown committed another robbery two months prior to the attempted

robbery of Gilbert. Specifically, Cuyler contendsthat there was a danger that the jury

would improperly consider evidence of that recent, similar robbery against him. But

were only two defendants . . ., the law applicable to each defendant was substantially

the same, and the evidence at trial showed that [a]ppellant and [his co-defendant]

acted together in committing the jointly indicted crimes” (punctuation omitted)); Ray

v. State, 338 Ga. App. 822, 829 (2) (792 SE2d 421) (2016) (holding that severance

of the co-defendants’ trials was not necessary given that, inter alia, evidence showed

that all of the defendants played a role in a single robbery, not separate, unrelated

offenses that might “muddy the evidence” as to a single defendant’s offenses).

13

See, e.g., McClendon , 299 Ga. at 615 (3) (affirming the trial court’s denial

of a defendant’s motion for a severance, explaining that, inter alia, there was no

indication that the jury confused the evidence or the law applicable to the codefendants as all three defendants were largely charged with the same offenses that

stemmed from the same evidence and fact pattern); Daniel v. State, 285 Ga. 406, 409

(3) (d) (677 SE2d 120) (2009) (holding that there was no danger that the jury would

be confused by the evidence because there were only two defendants acting in concert

and the evidence was not such that it would confuse the jury as to their individual

participation in the crimes).

8
the mere fact that the case against Brown was stronger than the case against Cuyler

did not necessitate a separate trial.

14 Moreover, the trial court gave limiting

instructions to the jury that mitigated any chance it would convict either defendant

based on evidence against or association with the other. Indeed, just prior to the State

presenting similar-transaction evidence against Brown, the court instructed that

“[s]ometimes the evidence is admitted for a limited purpose or against some parties

and not others. Such evidence may be considered by you, the jury, for the sole issue

or purpose against that party for which the evidence is limited and not for other

purposes.” The court went on to explain that the State would be presenting evidence

of other acts allegedly committed by Brown, and such evidence could be considered

solely as to the issues of Brown’s motive, intent, and plan. 

Additionally, after each witness who testified regarding Brown’s prior criminal

acts, Cuyler’s attorney cross-examined the witness briefly only to confirmthatCuyler

had no involvement in those prior incidents or that the witness did not know Cuyler. 

14

See Kelley v. State, 248 Ga. 133, 136 (3) (281 SE2d 589) (1981); see also

Martin v. State, 162 Ga. App. 703, 704 (2) (292 SE2d 864) (1982) (“The mere fact

that testimony as to one of two co[-]defendants is stronger than that linking the other

to the crime does not demand a finding that the denial of a motion to sever is an abuse

of discretion.”). 

9
Following the presentation of these witnesses, the court asked the State and the

defendants whether itshould give the limiting instruction again, and all parties agreed

that the court should wait to repeat the instruction during the jury charges at the end

of trial, which it did.

15 Given that qualified jurors under oath are presumed to follow

a trial court’s instructions,

16

there was very little, if any, danger that the jury

considered the evidence solely related to Brown’s prior acts against Cuyler.17

Lastly, Cuyler has not shown that his and Brown’s defenses were antagonistic,

as they both presented alibi witnesses and testified in their own defense that they did

not participate in the robbery at all. Such defenses are not mutually exclusive.18

15

In addition to reiterating its previous instructions that certain evidence

presented by the State of other crimes allegedly committed by Brown should only be

considered as to Brown’s motive intent, and plan, the court charged the jury twice

that it must consider the charges against each defendant individually and separately. 

16

See Holmes v. State, 273 Ga. 644, 648 (5) (c) (543 SE2d 688) (2001)

(“Qualified jurors under oath are presumed to follow the instructions of the trial

court.” (punctuation omitted)). 

17

See Billings v. State, 293 Ga. 99, 105-06 (6) (745 SE2d 583) (2013)

(rejecting an appellant’s argument that he was entitled to a severance of histrial from

that of his co-defendant’s when, inter alia, similar-transaction evidence related to the

co-defendant did not directly implicate the appellant and the trial court gave an

appropriate limiting instruction). 

18

See, e.g., Denny v. State, 281 Ga. 114, 116 (1) (636 SE2d 500) (2006) (noting

that co-defendants’ defenses were not antagonistic to each other because both denied

10
Furthermore, Brown never made any incriminating statements implicating Cuylerthat

were presented at trial.

19 Under these particular circumstances, the trial court did not

abuse its discretion in denying Cuyler’s request for a severance because he did not

meet his burden of showing the requisite prejudice sufficient to warrant a severance

of the joint prosecution.

20

being at the crime scene); Martin, 162 Ga. App. at 704 (2) (noting that the defendant

seeking a severance’s defense was not antagonistic to that of his co-defendant when

both defendants claimed that they were not present at and did not participate in a

robbery). 

19

See, e.g., Daniel, 285 Ga. at 408 (3) (b) (holding that the trial court did not

abuse its discretion in denying a severance when, inter alia, there was no testimony

or statement to police by one co-defendant that directly implicated the other codefendant, who was seeking a severance, in the crime).

20

See Green, 274 Ga. at 688 (2) (holding that a trial court did not abuse its

discretion in denying a motion to sever a defendant’s trial from that of his two codefendants when there was nothing in the record to suggest that trying the three

defendants together confused the jury, there was no likelihood that evidence

submitted against one defendant would be improperly considered against a codefendant, and the appellant made no attempt to explain how antagonistic defenses

of his co-defendants prejudiced his due process rights); Ray, 338 Ga. App. at 829 (2)

(holding that severance of joint prosecution was not warranted when there was

evidence that the co-defendants all played a role in a single robbery, and they all

claimed to have had no involvement in the crime).

11
2. Cuyler next argues that the trial court erred when it failed to grant a mistrial

or give an adequate curative instruction to the jury after the victim improperly

testified as to his character. This claim is likewise without merit.

Whether to grant a mistrial based on improper character evidence is within the

discretion of the trial judge.21 As a general matter, the character of the defendant

should not come into evidence “unless he chooses to put his character in issue and

when prejudicial matter is improperly placed before the jury, [and] a mistrial is

appropriate if it is essential to the preservation of the defendant’s right to a fair

trial.”22 Moreover, in reviewing the trial court’s decision, an appellate court “may

consider the nature of the statement, the other evidence in the case, and the court’s

and counsel’s action in dealing with the impropriety.”

23 Furthermore, we also

consider additional facts like whether “the reference to the improper character

21

 See Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997).

22

Smallwood v. State, 334 Ga. App. 224, 225 (1) (779 SE2d 1) (2015)

(punctuation omitted); see Smith v. State, 288 Ga. 348, 350 (3) (703 SE2d 629)

(2010) (“When a prejudicial matter is improperly placed before the jury, a mistrial is

appropriate if it is essential to the preservation of the defendant’s right to a fair trial.”

(punctuation omitted)). 

23

Sims, 268 Ga. at 382 (2); accord Jones v. State, 251 Ga. App. 285, 287 (2)

(a) (554 SE2d 238) (2001). 

12
evidence isisolated and brief, whether the jury’s exposure wasrepeated or extensive,

and whether the introduction of the objectionable evidence was inadvertent or

whether it was deliberately elicited by the State.”24

Here, Cuyler complains that two statements made by Gilbert during his

testimony improperly commented on his character, but he concedesthat the State did

not intentionally solicit either statement. The first statement was Gilbert’s response

when the State asked himto identifyCuyler in the courtroomand describe his clothes.

Specifically, Gilbert testified, 

Cuyler[ ] is the guy that’s on defense with . . . the orange and blue shirt,

the different colored shirt on with the low haircut now. He used to have

. . . like a Fro, an Afro and stuff before. I guess he went through the

system—been in the systemfor doing his chain[-]gang time or whatever.

Cuyler’s trial counsel immediately objected, arguing that this testimony placed his

client’s character into evidence. But following a bench conference, the court merely

instructed Gilbert to continue testifying without commenting on the reason why

Cuyler’s hairstyle may have changed. The bench conference was not transcribed,

however, and it is unclear whether Cuyler’s counsel moved for a mistrial at this time

24

Smallwood, 334 Ga. App. at 225-26 (1) (punctuation omitted); accord

Jackson v. State, 321 Ga. App. 607, 610 (1) (739 SE2d 86) (2013).

13
or instead requested a curative instruction.

25 And in the absence of any request for a

mistrial, the trial court was “required to act sua sponte only if there was a manifest

necessity for a mistrial,”26 which “requires urgent circumstances.”27 Moreover, to the

extent Cuyler argues that the trial court erred in failing to grant a mistrial sua sponte

based solely on the victim’s vague and unsolicited suggestion that Cuyler may have

been incarcerated for some unspecified reason prior to trial, we disagree that such

testimony necessitates a mistrial.

28

25 When Cuyler’s counsel objected, she indicated that she would “make a

motion at a sidebar,” but the trial transcript does not reveal whether she did so.

Nevertheless, even if counsel had moved for a mistrial at this time, the trial court did

not abuse its discretion in denying the motion as to Gilbert’s “chain gang” comment

for the reasons set forth infra. See infra note 28 & accompanying text.

26 Gonzalez v. State, 310 Ga. App. 348, 350 (714 SE2d 13) (2011); accord Cox

v. State, 293 Ga. App. 98, 102 (3) (666 SE2d 379) (2008).

27 Gonzalez, 310 Ga. App. at 350 (2); accord Cox, 293 Ga. App. at 102 (3); see

id. (“[A] trial court’s decision whether to grant a mistrial based upon manifest

necessity is entitled to great deference.”). 

28

See Lanier v. State, 288 Ga. 109, 110 (2) (702 SE2d 141) (2010) (explaining

that neither “a passing reference to a defendant’s criminal record” nor a

“nonresponsive answer that impacts negatively on a defendant’s character”

improperly places his character at issue); Billings v. State, 308 Ga. App. 248, 253 (4)

(707 SE2d 177) (2011) (same).

14
The second statement Cuyler claims warranted a mistrial was made by Gilbert

in response to a question about whether he was familiar with a particular car driven

by Brown’s girlfriend. Specifically, Gilbert testified,

Yeah, I seen the car. I used the car all the time. Like I say, they

stayed—we all stayed in the same neighborhoods and stuff like that

together, and prettymuch the same car that other crimes were committed

in, you know. Like I said Willie Cuyler is my homeboy’s best friend.

Everything Willie Cuyler used to tell my homeboy about the things that

[Brown] and Willie Cuyler used to do together, like other robberies and

stuff like that . . . . 

Immediately following thistestimony, bothBrown andCuyler objected, andCuyler’s

counsel specifically argued that thisstatement, coupled with the earlier “chain gang”

comment, improperly placed Cuyler’s character in evidence. But neither defendant

moved for a mistrial at this time. In response, the court stated twice that it would

overrule the objections, but that it would instruct the jury to disregard the

objectionable testimony. And while Cuyler claims that the trial court did not directly

addressthe jury in making thisruling or otherwise ensure that the jury “observed” the

instruction, the court stated more than once in the jury’s presence that the testimony

just given by Gilbert should be disregarded. Cuyler’s argument as to how the court

15
phrased the instruction appears to be based purely on semantics, rather than any

substantive legal authority. 

Then, at the close of the State’s case, Cuyler’s counsel moved for a mistrial

based solely on Gilbert’s “chain gang” comment, which suggested that Cuyler had

been incarcerated, arguing again that it improperly placed Cuyler’s character into

evidence. The trial court denied the motion, and as previously explained, did not

abuse its discretion in doing so because a passing reference to a defendant’s previous

incarceration does not necessitate a mistrial.

29 Furthermore, although the State

requested that the court give a cautionary instruction to the jury about the statement,

Cuyler’s counsel objected on the basis that giving such an instruction at that time

would place undue emphasis on it.

30 And when, as here, counsel strategically refuses

a trial court’s proffer of a curative instruction, the court’s failure to grant a mistrial

is not an abuse of discretion.

31

 In sum, the trial court did not abuse its discretion in

29

See supra note 28.

30

See Hinely v. State, 275 Ga. 777, 782 (2) (d) (573 SE2d 66) (2002) (holding

that it was reasonable trial strategy for defense counsel to decline a curative

instruction regarding a reference to the defendant’s prior incarceration on the basis

that it would place undue emphasis on the testimony).

31

See Kitchens v. State, 289 Ga. 242, 246 (4) (710 SE2d 551) (2011); see also

Eastep v. State, 170 Ga. App. 401, 403 (3) (a) (317 SE2d 259) (1984) (holding that

16
failing to grant a mistrial based on the witness statements detailed supra because, in

each case, Gilbert merely provided brief, isolated, and unsolicited testimony that may

have negatively impacted Cuyler’s character.32

3. Cuyler also argues that his counsel was ineffective for failing to move for

a mistrial based on certain testimony of the victim and for failing to investigate and

subpoena additional witnesses for trial. Again, we disagree. 

In evaluating claims of ineffective assistance of counsel, we apply the twopronged test established in Strickland v. Washington,

33

“which requires[a defendant]

to show that his trial counsel’s performance was deficient and that the deficient

a defendant who declined the court’s offer to give a curative instruction to disregard

a witness’s outburst could not complain on appeal that no such instruction was given,

as “induced error is impermissible”).

32

See Hinely, 275 Ga. at 782 (2) (d) (explaining, in case in which there was

brief testimony suggesting that the defendant had been incarcerated, that, even if his

counsel had moved for a mistrial, no mistrial would have been granted because “a

nonresponsive answer that impacts negatively on a defendant’s character does not

improperly place the defendant’s character in issue” (punctuation omitted)); Hansley

v. State, 267 Ga. 48, 49 (3) (472 SE2d 305) (1996) (holding that the trial court did not

abuse its broad discretion in denying the defendant’s motion for a mistrial after a

State witness volunteered, in a nonresponsive answer, that the witness had seen the

defendant “pull [the murder weapon] on one of the witness’s friends”);supra note 24

& accompanying text. 

33

466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984); see also Ashmid v. State,

316 Ga. App. 550, 556 (3) (730 SE2d 37) (2012).

17
performance so prejudiced [him] that there is a reasonable likelihood that, but for

counsel’s errors, the outcome of the trial would have been different.”34 Additionally,

there is a strong presumption that trial counsel’s conduct “falls within the broad range

of reasonable professional conduct, and a criminal defendant must overcome this

presumption.”35 And when, as here, trial counsel does not testify at the motion for

new trial hearing, “it is extremely difficult to overcome this presumption.”36 Lastly,

unless clearly erroneous, thisCourt will “uphold a trial court’sfactual determinations

with respect to claims of ineffective assistance of counsel; however, a trial court’s

legal conclusions in this regard are reviewed de novo.”37

34 Howard v. State, 340 Ga. App. 133, 139 (3) (796 SE2d 757) (2017)

(punctuation omitted); see Strickland, 466 U.S. at 687 (III); Ashmid, 316 Ga. App. at

556 (3). 

35 Howard, 340 Ga. App. at 139 (3); accord Chapman v. State, 273 Ga. 348,

350 (2) (541 SE2d 634) (2001); see Cammer v. Walker, 290 Ga. 251, 255 (1) (719

SE2d 437) (2011) (“A claim of ineffective assistance of counsel isjudged by whether

counsel rendered reasonably effective assistance, not by a standard of errorless

counsel or by hindsight.” (punctuation omitted)).

36 Wilson v. State, 277 Ga. 195, 200 (2) (586 SE2d 669) (2003) (punctuation

omitted).

37 Howard, 340 Ga. App. at 139 (3) (punctuation omitted); accord Sowell v.

State, 327 Ga. App. 532, 539 (4) (759 SE2d 602) (2014).

18
(a) Failure to Move for a Mistrial. In a claim related to the previous

enumeration of error, Cuyler arguesthat he received ineffective assistance of counsel

because his counsel failed to move for a mistrial based on Gilbert’s testimony that

Cuyler had been “in the system” or doing “chain[-]gang time.” This claim is belied

by the record. As previously explained, Cuyler’s counsel objected when this

testimony was initially given, indicating that she would make a motion in a sidebar,

but the sidebar was not transcribed. Nevertheless, at the close of the State’s case,

Cuyler’s trial counsel moved for mistrial based solely on the complained of

testimony. Thus, Cuyler is simply incorrect that his counsel failed to move for a

mistrial on that basis. And to the extent Cuyler argues that his counsel should have

moved for mistrial on the record immediately after the “chain gang” comment was

made, any such motion would have been denied for the reasons discussed in Division

2, supra. As we have repeatedly explained, “[t]he failure to make a meritless motion

or objection does not provide a basis upon which to find ineffective assistance of

counsel.”38

(b) Failure to Call Witnesses. Cuyler further contends that his counsel was

ineffective for failing to investigate and subpoena several witnesses for trial. But

38

 Johnson v. The State, 340 Ga. App. 429, 436 (4) (797 SE2d 666) (2017).

19
during his trial, Cuyler presented an alibi defense that he could not have committed

the charged offenses because he was at a club celebrating a friend’s birthday the

entire night. Indeed,Cuyler testified in support of this alibi, and his counsel presented

five other witnesses to testify as to his whereabouts on the evening in question,

39

including his mother, his uncle, his uncle’s girlfriend, and two friends, all of whom

were present at the club, exceptCuyler’s mother. In addition to the witnesstestimony,

the defense presented the jury with at least one picture of Cuyler at the event. If

believed, the multiple defense witnesses established that Cuyler went to the club with

his uncle and his uncle’s girlfriend between 8:00 and 9:00 p.m. and left at

approximately 1:15 a.m.

40

Nevertheless, Cuyler now arguesthat his counsel was ineffective for failing to

subpoena and call five additional witnesses to testify as to his presence at the

birthday party. But at the motion-for-new-trial hearing, Cuyler presented testimony

39 Although the responding officer referred to the date of the attack as August

20, 2013, and defense witnesses repeatedly referenced the date of the birthday party

as August 21, 2013, it appears evident from the transcript as a whole that all of the

witnesses were testifying regarding the same date. Both dates may have been

referenced because the relevant events occurred both before and after midnight. 

40 As previously noted, the police officer responded to Gilbert’s apartment

around 11:40 p.m. on the night in question, and thus, the defense contended that

Cuyler was at the birthday party when the charged offenses occurred. 

20
of only a single potential witness, who testified that he was not subpoenaed for trial,

but that he knew that Cuyler was at the party until at least 11:40 p.m. or 11:50 p.m.

This testimony, however, is essentially the same as that of the other witnesses who

testified at trial, and a trial counsel’s failure to present cumulative evidence does not

constitute ineffective assistance of counsel.

41 Lastly, asto Cuyler’s general argument

that there were five additional unnamed alibi witnesses who his trial counsel should

have subpoenaed, his failure to present a proffer at the motion-for-new-trial hearing

as to how those witnesses would have testified is fatal to his claim.

42

4. Finally, Cuyler argues that the trial court erred by failing to merge his

convictions for attempted armed robbery and aggravated assault for sentencing

purposes. Once again, we disagree.

41

See Jefferies v. State, 267 Ga. App. 694, 697-98 (1) (600 SE2d 753) (2004)

(holding that counsel was not ineffective for failing to subpoena two alibi witnesses

when their testimonywould have been cumulative of that of other witnesses) ; Jordan

v. State, 230 Ga. App. 344, 345 (c) (496 SE2d 486) (1998) (rejecting a defendant’s

claim that his trial counsel was ineffective for failing to subpoena a number of

character witnesses whose testimonywould have been cumulative testimony that was

presented at trial).

42

See Newby v. State, 338 Ga. App. 588, 594 (3) (c) (791 SE2d 92) (2016)

(holding that the defendant failed to establish that his counsel was ineffective for

failing to call certain unnamed witnesses to testify when he presented no proffer as

to how they would have testified); Boykins-White v. State, 305 Ga. App. 827, 829 (1)

(701 SE2d 221) (2010) (same).

21
The question of whether offenses merge is, of course, “a legal question that we

review de novo.”43 And our Supreme Court has explained that when “the same act or

transaction constitutes a violation of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses or only one, is whether each

provision requires proof of a fact which the other does not.”44 Furthermore, a single

act may be an offense against two statutes; “and if each statute requires proof of an

additionalfact which the other does not, an acquittal or conviction under either statute

does not exempt the defendant from prosecution and punishment under the other.”45

And here, although the attempted armed robbery statutory provision required proof

of a substantial step of a taking, which was not a required showing under the

applicable aggravated assault provision, “the latter provision did not require proof of

43

 Morris v. State, 340 Ga. App. 295, 312 (7) (797 SE2d 207) (2017).

44 Oliphant v. State, 295 Ga. 597, 602 (4) (b) (759 SE2d 821) (2014)

(punctuation omitted); see Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530)

(2006) (“Under the ‘required evidence’ test, . . . [t]he applicable rule is that where the

same act or transaction constitutes a violation of two distinctstatutory provisions, the

test to be applied to determine whether there are two offenses or only one, is whether

each provision requires proof of a fact which the other does not.” (punctuation

omitted)). 

45 Drinkard, 281 Ga. at 215 (punctuation omitted); accord Southwell v. State,

320 Ga. App. 763, 764 (1) (740 SE2d 725) (2013).

22
any fact that was not also required to prove the attempted armed robbery.”46

Significantly, though, “[when] one crime is completed before the other begins, there

is no merger.”47

In this case, Count 1 of the indictment charged Cuyler and Brown with

attempted armed robbery,

48

in that on August 20, 2013, with the intent to commit

armed robbery, they

knowingly and intentionally perform[ed] an act which constituted a

substantial step toward the commission of said crime, to-wit: did with

46 Garland v. State, 311 Ga. App. 7, 13 (714 SE2d 707) (2011) (footnotes

omitted); see Reed v. State, 318 Ga. App. 412, 415 (2) (734 SE2d 113) (2012)

(explaining that “when convictions for aggravated assault and attempted armed

robbery merge as a matter of fact, the aggravated assault conviction is the lesser

offense and should be merged into the attempted armed robbery conviction”).

47 Culbreath v. State, 328 Ga. App. 153, 157 (2) (b) (ii) (761 SE2d 557) (2014);

see Henderson v. State, 285 Ga. 240, 244 (4) (675 SE2d 28) (2009) (holding that

convictions for aggravated assault and armed robbery did not merge for sentencing

purposes when the aggravated assault was completed outside of a home before the

armed robbery began inside the home). 

48

See OCGA § 16-4-1 (“A person commits the offense of criminal attempt

when, with intent to commit a specific crime, he performs any act which constitutes

a substantial step toward the commission of that crime.”); OCGA § 16-8-41 (a) (“A

person commits the offense of armed robbery when, with intent to commit theft, he

or she takes property of another from the person or the immediate presence of another

by use of an offensive weapon, or any replica, article, or device having the

appearance of such weapon.”).

23
intent to commit a theft force open a door to a residence . . . , did yell

“Give it up,” did fire multiple shots from an unknown type of handgun

at . . . Gilbert and did search the pants of . . . Gilbert, contrary to the

laws of [this] State, the good order, peace[,] and dignity thereof. 

Similarly, Count 2 of the indictment charged Cuyler and Brown with aggravated

assault,

49

 in that on August 20, 2013, they “did make an assault upon the person of

. . . Gilbert, with unknown type handguns, deadly weapons, by firing the unknown

type of handguns at . . . Gilbert multiple times striking him, contrary to the laws of

[this] State, contrary to the good order, peace[,] and dignity thereof.” 

Consistent with the indictment, the evidence showed that the attempted armed

robbery began when Cuyler kicked down Gilbert’s door, entered his home with a

firearm, and demanded that he “give it up.” And the attempt to rob Gilbert at gunpoint

continued until Brown tripped him outside the home, pointed a gun at him, and

attempted to pull down his pants, presumably in an effort to steal money. But then,

Gilbert escaped, and no longer evidencing any attempt to rob him, Brown followed

49

See OCGA § 16-5-21 (a) (2) (2006) (“A person commits the offense of

aggravated assault when he or she assaults[,] . . . [w]ith a deadly weapon or with any

object, device, or instrument which, when used offensively against a person, is likely

to or actually does result in serious bodily injury.”).

24
him, shot him twice in the stomach, and fled.

50 Under these particular circumstances,

the final shots fired at Gilbert constituted an aggravated assault that began after the

attempted armed robbery ended, and the trial court did not err in failing to merge

those convictions.

51

50 Although Brown, not Cuyler, shot Gilbert just before they fled, our Supreme

Court has held that “evidence of a defendant’s conduct prior to, during, and after the

commission of a criminal act will authorize the defendant’s conviction for

commission of the criminal act if a jury could infer from the conduct that the

defendant intentionally encouraged the commission of the criminal act.” Bolden v.

State, 278 Ga. 459, 461 (1) (604 SE2d 133) (2004) (punctuation omitted);see OCGA

§ 16-2-20 (a) (“Every person concerned in the commission of a crime is a party

thereto and may be charged with and convicted of commission of the crime.”).

51

See Thomas v. State, 289 Ga. 877, 880-81 (3) (717 SE2d 187) (2011)

(holding that a conviction for armed robbery that resulted from a “holdup” in one

room did not merge with a conviction for aggravated assault that resulted from the

defendant’s action of forcing a shotgun down the victim’sthroat later in another room

did not merge for sentencing purposes); Culbreath, 328 Ga. App. at 157 (2) (b) (ii)

(holding that convictionsfor attempted armed robbery and aggravated assault did not

merge because the attempted robbery of the victim occurred downstairs when the

defendant pointed a gun at the victim and demanded money, while the aggravated

assault occurred upstairs when the defendant shot at the victim); Stubbs v. State, 293

Ga. App. 692, 694 (2) (667 SE2d 905) (2008) (holding that an attempted armed

robbery was complete when the defendant pointed a gun at the victim and demanded

money, and the defendant committed a separate aggravated assault, which did not

merge with the prior offense, when, after the victim refused to give him money, he

immediately struck the victim in the face with the gun just before fleeing the scene).

Cf. Curtis v. State, 330 Ga. App. 839, 846 (2) (769 SE2d 580) (2015) (holding that

convictions for aggravated assault and armed robbery merged when the victim was

“still being pistol whipped” when the perpetrators asked “what you got” and took his

wallet); Crowley v. State, 315 Ga. App. 755, 757-58 (2), 759 (3) (728 SE2d 282)

25
For all these reasons, we affirm Cuyler’s convictions.

Judgment affirmed. Ray and Self, JJ., concur.

(2012) (holding that convictions for aggravated assault and armed robbery merged

when one perpetrator pointed a gun at the victim, yelled at him to “give the s—t up,”

hit the victim on the side of the head with the gun, and kept yelling while the other

perpetrator took items from the victim after which the perpetrators fled). 

26