1 The crime occurred o n April 11, 20 10 . O n J un e 8 , 2 01 0, ap pe ll an t w as in di ct ed by a

Spalding County gr

and jury for malice

murder, felony

murder, aggrava

ted assault, and possession of a firearm during the commission of a crime. Following a jury

trial, appellant was found guilty on all counts and

sentenced to life in prison for malice murder. The re maining counts were vacated and merged as a matter of law. Malcolm v. State , 263 Ga. 369 (434 SE2d 479) (1993). Appellant was granted leave to file an out-of-time motion for a new trial which was de nied on January 15, 2014. Appellant filed a ti mely notice of appeal. The cas e was doc keted in this Court for the April 2014 term and submitted f

or decis ion on the briefs. FINAL C OPY 295 Ga. 442 S14A094 1. BATTEN v. THE STATE. THOMPSON, Chief Ju stice. Appellant, Devar

ryl Jac obie Ba

tten, was co nvicte d of ma lice m urder an d other crim es in connec tion with the shooting deat

h of Donal d Driver

. 1 He appea ls, assert

ing, inter alia , the tr

ial cou rt erre d in failin g to grant his motion forn ew trial beca

use the evidence w as insufficient to support the verdict. Finding no error, we affir m. The victim

and his girlfriend, Mic helle F ailds, went to visit the victim ’s aunt at herapartment. Outside the apartm ent, the victim and Failds enco untered

a group of people participating in a rap performance. After a brief visit with his

aun t, the victim and Faild s returned to the performance. Durin g a brea k, th e couple attempted to purch ase one of the gr oup’ s CDs. A p erfor mer, Jeremy2

Tayl or, informed the couple that a CD coul d be purc hased fo r five dol lars. T he couple bartered with Taylor, agreeing to excha nge an alcoholic

beverage and a few dollars f

or a CD. The vic tim the n attem pted to obt ain theCD from appellant, the “produc er” of the ra p group, wh o refuse d to exc hange th e CD for anythi ng less tha

n five dollars. A heat ed argument ens ued, and another member of the group, Billy

Joe Ta ylor, physically attacked the victim ; a fight broke out. Appella ntstated that he

would not j oin the fi ght, but w ould use hi s gun inste ad. Moments later, appellant pu lled out a gun and fired on e or more shots. Wh en the crowd c leare d, the victim was found

on the pa veme nt with a

gunshot woun d to the le g, whic h led to hi s death in a m atter

of minut es. 1. Appellant cont ends the eviden ce was insuffici ent to supp ort the verdi ct because it reste d on the te stimony

of witnes ses who w ere re lated to, or friends of, the vic tim a

nd had no c onnecti on to appe llant or his friends. We cannot

acce pt this c ontention

. On crim inal ap peal, appell ant is no l ong er pres umed innocent and all of the evidenc e is to be

viewe d in the lig ht most favorable to the jury verdict. Caldwell v. State , 26 3 Ga. 560, 5 62 (436 S E2d 488) ( 1993). This Court d oes not reconsi der evi denceor atte mpt to c onfirm t he ac curac y of tes timony . Id.3

Assessing a witness’s credibility is the responsibility

of the factfinder, not this Court. Hampton v. State , 272 Ga . 284, 285 ( 527 SE2d 872) (2 000); Kelly v. State , 270 Ga . 523, 525 ( 511 SE2d 169) ( 1999). Appella ntfurther con tends the trial court e rred in i ts denial of appell ant’s motion for new trial becaus e the verdic t was c ontrary to the e vidence

and the principles of justice and

equity . Under

OCGA § § 5-5-20, 5- 5-21, the presidin g judge may

grant a new trial when a jury verdict is f ound cont rary to the eviden ce and the principles of justic e and e quity or w hen the verdict

is against the w eight of the evidence. The trial court’s discre tion in this regard “sho uld be exercised with cautio n, and th e power to grant a new trial on this should be invoked only i n excep tional c ases in

which th e evidence pre

ponderat es hea

vily ag ainst the verdict.” Alvelo v. State , 288 Ga . 437, 438 ( 704 SE2d 787) ( 2011). Se e also Choisnet v. State , 292 Ga. 860 (7 42 SE2d 4 76) (201 3). The decisi on to gra

nt a new trial on grounds that the verdict is strongly agains t the e vidence is one that is solely

in the di screti on of the trial court. [Cit.] . . . Whether a n appellant is asking this court to review a lower cou rt’s refusal t o grant a new trial or its refusal to grant a

motion f or direc ted verdict, t

his court can o nl y review the case under the standa rd espouse d in Jackson v. Virginia , 443 U.S. 307 (99 SC 2781, 61 LE 2d 560) (1979) t o deter mine i f the evidence, when viewed in th e light most fa

vorableto the prosecutio n, suppor ts the verdict. [Ci t.]4

Willis v. State , 263 Ga . 597 (1) (43 6 SE2d 204) (1 993). T his Cou rt reviews the sufficienc y of the evidence a nd not its weight. Smithv. State , 265 Ga . 495, 496 ( 458 SE2d 347) ( 1995). Tw o witnes ses hea rd appell ant threaten to use a gun moments prio r to the sho oting, and eyewitn esses saw ap pellan

tshoot thevictim . It wa s within t he jury ’s provinc e to find t hese witnesses credible. Hamp ton , 272 Ga. at 285. We conc lude, t herefor e, tha

t the evidence was suff

icient to enab le any

rational trier of fact

to find appellan

t guilty beyond a

reaso n able dou

bt of malice m

urder, a nd the tri al cour

t did not

err when it denied appell ant’s motion f or new trial. See Jackson v. Virginia , supra. 2. Appella

nt conte nds the tr

ial cou rt erre d in allow ing Investig ator John Hayes to answer questions that went to the ultim ate i ssue of the case. In this regard, a ppella nt ar gued testimony fr om Hayes (confirming app ellant was called “Chico”) was improper bec ause that determ ination should have been reserved for the jury . Like wise, appell ant arg ued tes timony

from H ayes identif

ying appellant, “. . . a s the pe rs on who [Hayes arre sted for] comm itt[ing] this murder,” was an

issue to be decided by the j ury. H owever , tria l counse l did not object to these q

uestions, and theissue is not preserved for review. Quintanilla5

v. State , 273 Ga . 20 (537 SE 2d 352) (2000); Earnest v. State , 262 Ga. 494 (422 SE2d 188 ) (1992)

. 3

. A ppellant cont ends trial cou nsel rendered in effective assistance because (a) counsel failed to object to testimony go ing to theultima te issue of guilt; and (b) c ounsel fa

iled to hi ghlight tha

t the four witnesses who i dentified appell ant as t he sho oter wer e frien ds or relatio ns of the vi ctim. To succe ed on one or both of the se arguments, appell ant must show both that his counse l’s perfo rmanc e was d efici ent and that, b ut for counse l’s unprofes sional errors, there is a re asonable probability the outcome of the tri al wouldhave been different. Strickla nd v. Was hington , 466 U. S. 668, 687 (104 SCt 2052, 80 LE 2d 674) (1984). As to the first prong

of Strickla

nd , counsel is “st rongly presumed to have ren dered adequate assis tance and mad e al l signific ant

decisi ons in t

he exe rcise of reas onable p rofessio nal judgm ent.” Id. at 690. It is the app ellant ’s “heav y” burden to prove t

he ineffective assis tance of counsel , not the

state ’s burden t o prove the adequa te assi st ance of counsel. Young v. State , 292 Ga. 443, 445 (738 S E2d 575) (201 3). Appe llant ha s not met t his burden. (a) “Ordinarily, a witne ss may not express his opin io n as to an ultimate6

fact, beca use to do so wo uld invade th e province of t he jury.” Fordham v. State , 254 Ga. 59, 59 (325 SE 2d 755) (1985). Hayes’ t estimony was not an impr oper

comm ent on the ultimate iss ue. The u ltimate issue for th e jury was whether appell ant shot the v ictim , not whe ther ap pellan t was c alled “ Chico”

nor whether Hayes arrested him

for shoot ing the vi ctim . Moreo ver, the natureof Hay es’ testimony was harmless. Hayes’ testimony con firming appellan t was called “Chico” was cu mulat ive of ot her evi dence . Additi onally , Hay es’ positive identifi cation

of appel lant as the m an he a rreste d was wi thout

conseque nce. T he jury could re asonably infer

appell ant, w

ho was on tr

ial for shoo ting the vi ctim, was arrested for t hat crime. (b) During cross-examination, tri al counsel did highlight the fact t ha t witnesses who ident

ified a ppella nt were relations of, or

friends with, t he vict im. Furthermore, the potential for bias in the witnesses’ testi mony was highlig hted bytrial c ounsel in his closing state ment. Misgivings over tri al couns el’s c rossexam ination

or closing a rgumen t do not provi de a ba sis for reversal. Moon v. State , 288 Ga. 508 , 516 (705 SE2d 649) (2011). That alternative counsel would have questioned witnesses differently does not approach ineff

ective assistance of counsel. Id. “Tri al st

rategy a nd tactics do not equate with ine ffective7

assistance.” Henderson v. State , 303 Ga . App. 89 8, 901 (695 SE2d 334) (2010). Judgme nt affir

med. All the

Justice s concur .

Decid ed June 3 0, 2014. Murder. Spalding S uperior C ourt. Be fore Judge Edward s. Jame s E. Bi schoff

, for appellant. S cott L . Ballard, District Att orney, Robert W. S mith, Jr., Assistan t District Attorney, Samuel S. Olens, Attorney Genera l, Patricia B. Attawa

y Burto n, Deputy Attorney General, Paula

K. Sm ith, Se nior

Assistant Attorney Ge neral, Vicki S. Bass, Assis tant Attorney Gener al , for appellee.