THIRD DIVISION

DOYLE, P. J.,

HODGES and WATKINS, 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.

https://www.gaappeals.us/rules

June 24, 2024

In the Court of Appeals of Georgia

A24A0484. COOPER v. THE STATE.

WATKINS, Judge.

TravonCooper appealsfromanorderdenying his amendedmotion for newtrial

after a jury found him guilty of possession of a firearm by a first offender probationer.1

Cooper argues that the trial court abused its discretion in denying his motion for a

mistrial and that he was denied effective assistance of counsel at trial. For the reasons

set forth below, we affirm.

Viewed in the light most favorable to the verdict,2the evidence shows that

around 5:00 a.m. on the morning of October 12, 2019, Cooper drove to a Waffle

1

 See OCGA § 16-11-131 (b).

2

 See Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).
House in Rockdale County and parked in a lot on the “back side” of the restaurant at

an adjacent business and not where Waffle House customers normally parked. For

approximately an hour, Cooper walked around the building multiple times, entered

and exited the restaurant repeatedly, and went in and out of the restroom, all without

ordering anything.

Cooper was wearing tight pants or “skinny” jeans, and Waffle House

employees could see the outline of what appeared to be a gun in his front pocket and

the tip of the gun sticking out of the pocket. An employee called 911, and law

enforcement officers arrived shortly thereafter while Cooper was in the restroom.

When Cooper came out of the restroom, officers could see a “bulge” in his right

pocket.Upon seeing the officers, Cooperimmediately ordered“three burgers”at the

counter and went back into the restroom.

One of the officers knocked on the restroom door, announced the police

presence, and asked Cooper to come out. The officers heard a toilet flush, and after

a fewmoments Cooper came out. The bulge was no longer visible inCooper’s pocket,

butthe officers found a firearm in the restroom trash can.According to Waffle House

employees, the trash can in the single-stall, windowless restroom had been recently

2
emptied in anticipation of the 7:00 a.m.shift change. The serial number on the firearm

had been obscured with white paint or Wite-Out, but the officers ultimately

determined that the firearm had been reported stolen.

Cooper was charged with theft by receiving stolen property,

3

tampering with

evidence,4and possession of a firearm by a first offender probationer. At the

conclusion of the first part of the bifurcated trial, the jury found Cooper not guilty of

the first two charges. Following the reading of the firearm charge and opening

statements, the State tendered a certified copy of Cooper’s prior adjudication. The

jury found him guilty on the firearm charge, and the trial court later denied Cooper’s

amended motion for new trial. This appeal followed.

1. Cooper argues that the trial court abused its discretion when it denied his

motion for a mistrial after the State improperly placed his character into evidence by

suggesting that he was engaging in a robbery at the Waffle House.5

3

 See OCGA § 16-8-7 (a).

4

 See OCGA § 16-10-94 (a).

5 Cooper argues that the State did so “in disregard of a motion in limine.” The

trial court, however, did not grant Cooper’s motion in limine on this ground. Instead,

the trial court found that employees could “testify they thought [Cooper] was going

to commit a robbery . . . if that [was] why they called the police[.]” The court added

3
“The refusal to grant a mistrial based on a prejudicial comment lies within the

discretion of the trial court, and we will not interfere with that discretion on appeal in

the absence of manifest abuse.”

6

During cross-examination, trial counsel questioned one of the responding

officers about his investigation andwhy the officer had not confirmedwhether Cooper

was on a telephone call for a significant amount of time while he wasin Waffle House.

Afterthe officer responded that it was not relevant to the stolen firearm, trial counsel

continued the line of questioning, asking several times whether Cooper being on a 35-

minute phone call would have explainedCooper’s“pacing around.” On redirect, the

State inquiredwhether,“at the conclusion of this investigation [Cooper was] charged

with robbery[,]” and the officer responded, “No.”

Counsel objected, and the court instructed the jury to disregard entirely “the

mention of whether [Cooper]was charged with robbery[.] That is notrelevant in this

that it would be “more than happy to give a limiting instruction” depending on how

the testimony came out, but noted that “the District Attorney would be wise to

counsel these witnesses to try and avoid this issue altogether, if possible.”

6

(Citation and punctuation omitted.) Body v. State, 367 Ga. App. 506, 511 (3)

(887 SE2d 356) (2023) (“Trial courts are vestedwith great discretion to grant or deny

mistrials because they are in the best possible position to determine whether one is

warranted.”) (citation and punctuation omitted).

4
case and should not have been brought up.” The State followed up with, “So you

were only investigating the firearm charge?” The officer responded,“We — I don’t

knowifI can say it.Wewere investigating, but from my experience, it could have been

a bigger crime.”

The defense again objected, and the trial court admonished the State for going

“right back into” what the court had “just told them” not to. The trial court

instructed the jury “to ignore the last question and answer. Do not consider that in

reaching your verdict in this case.I amgoing to instruct the District Attorney’s Office

to cease this line of questioning.” Trial counsel then requested to take up a matter

outside of the jury’s presence. After the jury was excused, the defense moved for a

mistrial. The trial court denied the motion, finding that “the curative instructions

were adequate.”

In reviewing a trial court’s exercise of discretion in denying a

motion for mistrial based on the improper admission of bad character

evidence,we consider the nature of the statement,the other evidence in

the case, and the action taken by the court and counsel concerning the

impropriety.We also consider additional facts like whether the reference

to the improper character evidence is isolated and brief, whether the

jury’s exposure was repeated or extensive, andwhether the introduction

of the objectionable evidence was inadvertent or whether it was

5
deliberately elicited by the state. We will not disturb a trial court’s

exercise of discretion in denying a motion for mistrial unless a mistrial is

essential to preserve the defendant’s right to a fair trial.7

Here,the references towhether Cooper had been chargedwith robbery and the

investigation of what “could have been a bigger crime” were brief and isolated. The

trial court instructed the jury that whether Cooper was charged with robbery was not

relevant, to ignore the latter question and answer, and not to consider them in

reaching a verdict. As Cooper has made no showing that the grant of a mistrial was

necessary to preserve hisright to a fair trial,8 we conclude that the trial court properly

exercised its discretion by giving an appropriate curative instruction rather than

granting a mistrial.9

7

 (Citations and punctuation omitted.) Body, 367 Ga. App. at 511 (3).

8

 See Smith v. State, 244 Ga. App. 165, 168 (3) (534 SE2d 903) (2000).

9

See Williams v. State, 247 Ga. App. 88, 90 (2) (543 SEd 402) (2000) (Even

assuming a witness’s remarks regarding an earlier purchase of cocaine from the

defendant and the witness’s suspicions about where the defendant stored cocaine

impermissibly placed the defendant’s bad character before the jury, “the decision to

give curative instructions to the jury rather than grant the mistrial request following

the introduction of badcharacter evidence [was] within the discretionof the trial court

and [was] not error.”) (citation and punctuation omitted).

6
2.Cooper contends that he was denied effective assistance of counsel in several

respects in that his trial counsel failed to timely stipulate to his first offender status,

failed to request a jury instruction regarding the use of his first offender probationary

sentence,failed to challenge the constitutionality ofOCGA§ 16-11-131 as applied, and

failed to investigate and prepare for trial.

To prevail on a claim of ineffective assistance of counsel, “a defendant must

establish, pursuant to Strickland v. Washington,[10] that counsel’s performance was

deficient and that the deficient performance was prejudicial to his defense.”

11

To showdeficient performance,the defendant must demonstrate

that counsel performed counsel’s duties in an objectively unreasonable

way, considering all of the circumstances and in the light of prevailing

professional norms. To establish prejudice, [the defendant] must show

that there is a reasonable probability that, but for counsel’s

unprofessional error, the result of the proceeding would have been

different.12

10

 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

11

(Citation and punctuation omitted.)Coney v. State, 290 Ga.App. 364, 370 (3)

(659 SE2d 768) (2008).

12

(Citations and punctuation omitted.) Payne v. State, 314 Ga. 322, 328-329 (3)

(877 SE2d 202) (2022).

7
“In reviewing a trial court’s determination regarding a claim of ineffective assistance

of counsel, this court upholds the trial court’s factual findings unless they are clearly

erroneous; we review a trial court’s legal conclusions de novo.”

13

(a) Cooper argues that trial counsel was ineffective in failing to stipulate to his

first offender status and that, as a result, the jury saw that the prior charge was

robbery. Cooper contends that the nature of the prior charge was particularly

prejudicial because of testimony suggesting that he was planning to rob the Waffle

House.

“A defendant may be prejudiced by the admission of a prior conviction into

evidence when the prior conviction is of the nature likely to inflame the jury’s

passions and raise the risk of a conviction based on improper considerations.”

14 The

Supreme Court of Georgia has held, however, that “even violent crimes, crimes

13

 (Citation and punctuation omitted.) Coney, 290 Ga. App. at 370 (3).

14

(Citation and punctuation omitted.) Jackson v. State, 317 Ga. 95, 103-104 (2)

(b) (891 SE2d 866) (2023) (holding that,“even if [the defendant’s] counsel was

deficient for failing to stipulate to his convicted-felon status, [the defendant] ha[d]

failed to showthat there [was] a reasonable probability that the result of his trial would

have been different” where the prosecutor did not emphasize the nature of the

aggravated assault conviction and where the evidence against the defendant was

strong).

8
involving firearms, and drug offenses were not likely to inflame the jury’s passionsin

murder cases. [Thus,] the absence of a stipulation does not always have prejudicial

impact.”

15

Here,the prior robbery offensewas identifiedwhen the prosecutor introduced,

and publishedwithout objection, a certified copy ofthe prior adjudication, and during

closing arguments when the prosecutor said“as you see in the charge[,] the defendant

was previously charged and convicted in 2014 of robbery by force.” Because the

mentions of the prior felony were minimal and appropriate for proof of the charged

crime,16 Cooper has failed to show that there was a reasonable probability that the

outcome of the trial would have been different if trial counsel had stipulated to

Cooper’sfelonystatus.17Having determined that Cooper has failed to showprejudice,

15

(Citation and punctuation omitted.) Prickett v.State, 314 Ga. 435, 439 (1) (877

SE2d 573) (2022).

16

See Chavez v. State, 307 Ga. 804, 810 (2) (a) (837 SE2d 766) (2020) (holding

there was no prejudice from counsel’s failure to stipulate to first offender status,

although the State referenced the prior disposition in its closing argument, where the

prior offense was non-violent and the evidence against the defendant was strong).

17

See Bentley v. State, 307 Ga. 1, 10 (2) (b) (834 SE2d 549) (2019) (“[T]he

admission ofthe exhibit referencing [the defendant’s]rape and incest convictions had

no probable effect on the outcome of the trial, and he therefore cannot prevail on this

claim of ineffective assistance.”).

9
we need not examine the deficient performance prong of his claim of ineffective

assistance of counsel.18

(b) In a related argument, Cooper contends that counsel was ineffective in

failing to request an instruction that the jury should not use his first offender

probationary sentence to prove his character to commit the charged crime.

During its deliberations on the firearm possession charge, the jury asked the

trial judge whether it was to consider the first conviction from 2014. Trial counsel

requested that the court instruct the jury that the prior conviction could only be used

forthe limited purposeof proving that Cooperwas a first offender probationer and not

whether Cooper had committed another offense. The trial court granted the request

and recharged the jury that the “prior conviction may be used only for the limited

purpose of proving that [Cooper] is a [f]irst [o]ffender probationer.”

Cooper has not presented anything to overcome the presumption that the jury

followed the trial court’s instructions,19 which mirrored the tailored pattern jury

18

 See Payne, 314 Ga. at at 328 (3).

19

 See Williams v. State, 313 Ga. 443, 450 (1) (870 SE2d 397) (2022).

10
instruction.20 Accordingly, we conclude that “the evidence of [Cooper’s] prior firstoffender adjudication — especially when contrasted with the strong evidence of his

guilt in this case — was only a minor consideration at the trial and had no probable

effect on the outcome of his trial.”

21

(c) Cooper argues that he was not informed that he was forfeiting his Second

Amendment right to possess a firearm when he was sentenced as a first offender

probationer because the prohibition in his sentence only applied to someone

“convicted” and because there was no express waiver (as with a Fourth Amendment

20

See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2007), §

1.34.00 (“Sometimes evidence is admitted (for a limited purpose) or (against some

parties and not others) or (for some counts and not others). Such evidence may be

considered by the jury (for the sole issue or purpose) (against that/those party(ies))

(only for the counts) for which the evidence is limited and not for any other

purpose.”).

21

(Citation and punctuation omitted.) Collins v. State, 312 Ga. 727, 749 (8) (c)

(864 SE2d 85) (2021).

11
waiver).22 Thus, he contendsthat OCGA § 16-11-131 was unconstitutional as applied

to him, and counsel was ineffective for failing to raise this argument.

The certified copy of Cooper’s prior adjudication indicates that he pled guilty

to robbery23in 2014, and was sentenced as a first offender probationer under OCGA

§ 42-8-60.24Aprovision titled“FIREARMS”stated:“If you are convicted of a crime

punishable by imprisonment for a term exceeding one year, . . . it is unlawful for you

to possess or purchase a firearm including a rifle, pistol, or revolver, or

ammunition[.]”

22

See generally Martin v. State, 370 Ga. App. 275, 276-277 (2) (896 SE2d 874)

(2024) (“A probationer who has executed a Fourth Amendment waiver may be

subject to a warrantless search if there is reasonable suspicion of criminal activity, or

for the purpose of monitoring the extent of the probationer’s compliance (or lack of

compliance)with the terms of[his] probation.”) (citations and punctuation omitted).

23

 See OCGA § 16-8-40 (a).

24

See OCGA § 42-8-60 (a) (allowing first offenders to enter a plea of guilty and

to be placed on probation or incarcerated without an adjudication of guilt); 42-8-60

(e) (1) (If the probation or incarceration term is completed without violation, the

defendant is discharged without an adjudication of guilt and is not considered to have

a criminal conviction.).

12
Although “the entry of a guilty plea under OCGA § 42-8-60 is not a

‘conviction’ within the usual definition of that term[,]”

25 OCGA § 16-11-131 (b)

expressly prohibits possession of a firearm by “[a]ny person who is on probation as a

felony first offender pursuant to Article 3 of Chapter 8 of Title 42[.]”

To the extent Cooper is arguing that a first offender probationer must be

explicitly advised that he is waiving his Second Amendment rights, he has cited no

authority in support ofthis argument.26 Because “[a] lawyer is not deficient forfailing

to make an argument that would require an extension of the law[,]”27 Cooper has

25

Priest v. State, 261 Ga. 651, 651-652 (2) (409 SE2d 657) (1991); see OCGA §

42-8-60 (e) (1); see also OCGA § 16-1-3 (4) (defining “conviction” as “a final

judgment of conviction entered upon a verdict or finding of guilty of a crime or upon

a plea of guilty”).

26 Although Cooper relies on a recent decision of the Supreme Court of the

United States to argue that there is a general right to public carry, that case explicitly

limits its holding to”law-abiding citizens.” N. Y. State Rifle & Pistol Assn. v. Bruen,

597 U. S. 1, 8-10 (142 SCt 2111, 213 LE2d 387) (2022); see also id. at 39 (III) (A) (“It

is undisputed that petitioners . . . — two ordinary, law-abiding, adult citizens — are

part of “the people” whom the Second Amendment protects.”); id. at 91 (I)

(concurring opinion) (“[A] State may not enforce a law, like New York’s Sullivan

Law,that effectively prevents its law-abiding residentsfrom carrying a gun [to defend

themselves]. That is all we decide. Our holding decides nothing about who may

lawfully possess a firearm or the requirements that must be met to buy a gun.”).

27

Payne, 314 Ga. at 331 (3) (d).

13
failed to establish deficient performance. Accordingly, we need not examine the

prejudice prong of his claim of ineffective assistance of counsel.28

(d)In his final claim of ineffective assistance of counsel, Cooper argues that his

attorney failed to investigate and prepare, specifically failing to review the certified

copy of the prior conviction. Cooper contends that, had counsel done so, she would

have found that the conviction lacked any notice to Cooper that he could not possess

a firearm.

Trial counsel testified at the motion for new trial hearing thatshe prepared for

trial by, inter alia, reviewing all the evidence and providing all discovery to Cooper

before trial. She testifiedfurther that neither Cooper nor his mother29had told counsel

that Cooper did not know he could not have a firearm. Cooper failed to present

evidence at his motion for newtrial hearing that he did not receive notice that he could

not possess a firearm while on probation. “Unfounded speculation about what

additional investigation might have uncovered or about what unnamedwitnesses may

28

 See id. at 328 (3).

29 Counsel testified that she was limited in meeting with Cooper prior to trial

due toCOVID-19 restrictions in place at the jail.However, she did not believe that the

restrictions had any effect on her ability to represent Cooper at trial.

14
have testified to cannotsupport a claim that trial counsel was professionally deficient,

nor can it establish prejudice.”

30 Cooper has thus failed to demonstrate that he was

denied effective assistance of counsel.

Judgment affirmed. Doyle, P. J., and Hodges, J., concur.

30

 (Citation and punctuation omitted.) Payne, 314 Ga. at 334 (3) (g).

15