Simmons v. State

¶1NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion. In the Supreme Court of Georgia

¶2 Decided: October 25, 2022

¶3 S22A0620. SIMMONS v. THE STATE.

¶4 MCMILLIAN, Justice.

¶5 After a jury trial in 2017, Troy Simmons was convicted of felony

¶6murder and other crimes arising out of the shooting death of

¶7Wendell Lee and the aggravated assault of April Tongol.1 On appeal,

¶8 1The crimes occurred on December 23, 2013, and in May 2016, a Wayne County grand jury indicted Simmons for conspiracy to commit aggravated assault (Count 1), conspiracy to commit kidnapping (Count 2), conspiracy to commit false imprisonment (Count 3), aggravated assault of Lee with a deadly weapon (Count 4), aggravated assault of Tongol with a deadly weapon (Count 5), armed robbery (Count 6), felony murder of Lee while in the commission of conspiracy to commit aggravated assault (Count 7), felony murder of Lee while in the commission of conspiracy to commit kidnapping (Count 8), felony murder of Lee while in the commission of conspiracy to commit false imprisonment (Count 9), felony murder of Lee while in the commission of aggravated assault (Count 10), and two violations of the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16-15-4 (a) & (d) (Counts 11 and 12). At a trial conducted from January 24 through January 27, 2017, a jury found Simmons guilty of Counts 1, 4, 5, 7, 10, 11, and 12 and not guilty of the remaining counts. On January 27, 2017, the trial court sentenced Simmons to life in prison without the possibility of parole for felony murder while in the commission of aggravated assault (Count 10), 20 years in prison for the aggravated assault of Tongol (Count 5), 15 years in prison for one count of Simmons claims that: (1) the evidence was insufficient to sustain his

¶9convictions; (2) the trial court erred in failing to instruct the jury

¶10completely on corroboration for confessions as required by OCGA §

¶1124-8-823; (3) the trial court erred in instructing the jury as to

¶12Simmons’s flight; and (4) trial counsel rendered constitutionally

¶13ineffective assistance. Because Simmons has not shown reversible

¶14error, we affirm his convictions.

¶15 The evidence presented at trial showed that both Lee and

¶16Simmons were members of the “Bloods”2 gang and involved in

¶17violation of the Georgia Street Gang Terrorism and Prevention Act (Count 11), and 10 years in prison for the other count of violation of the Georgia Street Gang Terrorism and Prevention Act (Count 12), with each sentence to run consecutively. The trial court purported to merge Counts 1, 4, and 7 with Count 10 (felony murder predicated on aggravated assault), although Count 7 (felony murder while in the commission of conspiracy to commit aggravated assault) was actually vacated by operation of law. See Noel v. State, 297 Ga. 698, 700 (2) (777 SE2d 449) (2015) (explaining that a “defendant found guilty of the felony murder of the same victim through the commission of more than one felony may only be sentenced on one felony murder charge, and the remaining felony murder charges stand vacated by operation of law”). Simmons filed a timely motion for new trial on February 1, 2017, which was amended through new counsel on February 15, 2021. After a hearing, the trial court denied the motion as amended on December 13, 2021. Simmons filed a timely notice of appeal on January 3, 2022; the case was docketed to the April 2022 term of this Court and submitted for a decision on the briefs. 2 Simmons uses both “Blood” and “Bloods” to describe the gang he is in.

¶18 2 trafficking methamphetamine.3 On December 23, 2013, Lee was

¶19driving with his girlfriend, Tongol, to Wayne County to drop off his

¶20children at their mother’s home. Tongol testified that after dropping

¶21off the children, Lee said he had to make a stop and was on the phone

¶22with another person who gave him directions to an abandoned

¶23house. When Lee and Tongol arrived, two armed men approached

¶24either side of the car “asking for money.” Tongol said her purse was

¶25“snatched” from her after she got out of the car. Lee ran in one

¶26direction, and the two men followed him. Tongol ran in the opposite

¶27direction until she found people and asked to use their phone to call

¶28911.4 Tongol told the 911 operator that the men were armed; that

¶29she heard gunshots; and that Lee was likely shot, as she believed

¶30Lee to be unarmed.

¶31 3 Simmons admitted to and was consistently open about his membership in the “Bloods” gang. At trial, Luis Bowden, Lee’s brother, testified that Lee and Simmons were members of the “Bloods” gang and that the three of them had trafficked methamphetamine in Jesup. Also, a criminal street gang expert testified that based on the evidence, he considered Simmons to be a member of the “Bloods” gang and considered the activities in this case to be consistent with criminal street gang activity. 4 Audio of Tongol’s 911 call was admitted into evidence and played for

¶32the jury. 3  Wayne County dispatch received a call at 11:49 p.m. on

¶33December 23, 2013, and officers responded to an area known as “the

¶34Hill.” One investigator made contact with Tongol and then at 11:53

¶35p.m. arrived at the abandoned house where Tongol told him she had

¶36left her car. There, the investigator found Lee unresponsive. The

¶37responding paramedic testified that Lee showed no signs of life. A

¶38Georgia Bureau of Investigation (“GBI”) forensic pathologist

¶39performed Lee’s autopsy and testified that there were five bullet

¶40wounds in Lee’s body and that the cause of death was multiple

¶41gunshot wounds.

¶42 A GBI special agent who responded to the crime scene around

¶431:00 a.m. on December 24 testified at trial that Lee’s body was

¶44located on the ground behind the house. The special agent also

¶45testified that he observed items that the coroner removed from Lee’s

¶46pockets, including a bag of green leafy material consistent with

¶47marijuana, a bag of white powder consistent with cocaine, and about

¶48$2,930 in cash. Crime scene photos were admitted into evidence,

¶49including photos of Tongol’s car, her purse and its contents on the

¶50 4 ground, and an iPhone found near Lee’s body. A semi-automatic .40-

¶51caliber pistol was found in the car’s glove box. A GBI crime lab

¶52examiner testified that the bullet recovered from Lee’s body was a

¶53.30-caliber metal-jacketed bullet, consistent with being fired from a

¶54.38 Special or .357 Magnum revolver or pistol, but not consistent

¶55with being fired from a .40-caliber semi-automatic weapon.

¶56 GBI Investigator Lawrence Kelly was also involved in the

¶57investigation into Lee’s death. During that investigation,

¶58Investigator Kelly talked to Lee’s brother, Luis Bowden, who said

¶59that he was involved in drug distribution in Wayne County with

¶60both Simmons and Lee. Investigator Kelly then turned his

¶61investigation to and began communicating with Simmons. In

¶62January 2014, Investigator Kelly tried to arrest Simmons, but

¶63Simmons fled from his parole officer who was attempting to execute

¶64the arrest warrant. Eventually, Simmons was located in Virginia,

¶65where Investigator Kelly interviewed him on March 1, 2014. This

¶66interview lasted over five hours and the audio was played for the

¶67 5 jury at trial almost in its entirety.5

¶68 In his recorded interview, Simmons said that he was given

¶69instructions from a higher-ranking Bloods gang member known as

¶70“Bishop,” who was involved with a Mexican drug cartel.6 Bishop

¶71instructed Simmons to contact Lee because Lee owed $41,000 in

¶72relation to the methamphetamine trafficking. Simmons admitted to

¶73being at the crime scene, saying that he traveled alone to meet Lee

¶74in Jesup while Dominique Brown, Simmons’s brother, and Gabe

¶75Frazier drove separately to the same location. At the crime scene,

¶76Simmons instructed Brown and Fraizer to “dog pil[e]” or beat up Lee

¶77and then put Lee on the phone with Bishop. Simmons was supposed

¶78to take Lee to Atlanta to face members of a Mexican cartel who

¶79provided the methamphetamine that Lee was selling and to whom

¶80Lee owed the money. According to Simmons, he instructed Brown

¶81 5 Investigator Kelly advised Simmons of his rights under Miranda, and Simmons signed a waiver of those rights before beginning the interview. See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 6 Bowden also testified that Bishop was a member of the “Bloods” gang,

¶82was involved in methamphetamine trafficking, and was incarcerated at the time of the shooting. 6 and Fraizer not to cause permanent physical damage and not to kill

¶83Lee. Simmons also said that if he had known Fraizer and Brown

¶84were going to shoot Lee, he would have stopped it. Simmons further

¶85admitted that, after Brown shot Lee, Simmons disposed of the

¶86firearm by giving it to someone behind a gas station near Atlanta.

¶87 Other evidence also supported Simmons’s statement that he

¶88had been at the crime scene. Investigator Kelly testified that a cell

¶89phone from Tongol’s purse was dumped outside of her car. The cell

¶90phone’s number matched the phone number that family members

¶91said belonged to Lee; investigators were unable to determine the cell

¶92phone owner for the last call made on the phone. Simmons told

¶93Investigator Kelly during his interview that on December 23, he was

¶94at “the Beehive” in Liberty County – a gathering place for “Bloods”

¶95members. Then, Simmons drove to his apartment in Wayne County

¶96before driving to “the Hill,” where Lee was shot. Investigator Kelly

¶97retrieved records for cell phones belonging to Simmons and Lee, as

¶98well as from the unknown number from Lee’s recent calls. Then, he

¶99used the times, dates, and cell phone tower locations of each device

¶100 7 to create a map of the cell phones’ locations on the night of the

¶101shooting. Simmons’s location, based on the cell phone records, was

¶102consistent with Simmons’s interview statements. Additionally, the

¶103unknown number recovered from Lee’s cell phone was in the area of

¶104the Beehive at the same time as Simmons’s device and then was in

¶105Wayne County around the same time as Simmons’s device. Lee’s

¶106phone and Simmons’s phone were shown to be in the area where Lee

¶107was killed around the same time. Simmons testified that gang

¶108members often share or exchange phones and frequently change

¶109phone numbers.

¶110 Tongol testified that she had never met Simmons before. She

¶111further testified that the person who approached the passenger side

¶112of the car, where she sat on the night of the shooting, was masked,

¶113and that she did not “see anybody directly” that night. When asked

¶114if it was Simmons who had a gun on her, she responded that she did

¶115not think Simmons was on her side of the car but that, at the time

¶116of the shooting, she suspected Simmons to be the person on the

¶117driver’s side of the car. However, Tongol did not give an explanation

¶118 8 as to why she thought that.

¶119 Simmons testified at trial in his own defense and stated that

¶120he lied during his interview with Investigator Kelly and that, when

¶121he asked to call his wife during the interview, he actually called

¶122another member of the “Brims” (a subset of the “Bloods”) known as

¶123“Tee Tee” and was set up on a three-way call with Steven Cortez.

¶124Simmons was following gang protocol when he called Cortez, who

¶125ranked above Bishop in the “Bloods” gang hierarchy. Simmons

¶126testified that, after the phone call with Cortez, he lied to

¶127Investigator Kelly about being at the scene when Lee was killed,

¶128about giving away the gun, and about the whole story he told law

¶129enforcement during his interview. He said that he was supposed to

¶130be the “fall guy” because his “name was already out there,” given

¶131that Lee’s family had posted on Facebook the morning after the

¶132shooting that Simmons killed Lee. He was also supposed to take his

¶133brother, Brown, down with him.

¶134 Simmons testified that, unlike what he said in his interview

¶135with Investigator Kelly, he was not present when Lee was shot and

¶136 9 was actually at the “Beehive” all night. Simmons also claimed at

¶137trial that, on the night of the shooting, Lee was supposed to bring

¶138Simmons marijuana, but Lee was not answering his phone.7

¶139Simmons testified that Fraizer was notified that Lee was on the way

¶140to Wayne County, and Fraizer, Brown, Cortez, and others left to go

¶141meet with Lee. Simmons claimed that Brown and Fraizer were

¶142present at the shooting, but could not say who the shooter was

¶143because he was not there. Simmons said that he found out about the

¶144shooting later that night. Fraizer, who was not on trial in this case,

¶145was called by the defense as a witness but invoked his Fifth

¶146Amendment right against self-incrimination and did not testify.

¶147 1. Simmons asserts that the evidence was insufficient to

¶148sustain his convictions as a matter of constitutional due process. In

¶149reviewing sufficiency, we must determine whether “any rational

¶150 7 Bowden testified at trial that in December 2013, he talked to Simmons who told him he would be meeting with Lee when he was in Wayne County. Bowden further testified that when he called Simmons the morning after Lee was shot, Simmons told Bowden that he did not meet up with Lee the previous night.

¶151 10 trier of fact could have found the essential elements of the crime

¶152beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

¶153(III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (emphasis in original).

¶154In doing so, “[w]e construe the evidence presented in the light most

¶155favorable to the verdict, and neither reweigh it nor determine

¶156witness credibility.” Terrell v. State, 300 Ga. 81, 84 (1) (793 SE2d

¶157411) (2016).

¶158 Simmons was convicted of and sentenced on the following:

¶159felony murder while in the commission of aggravated assault,8

¶160aggravated assault of Tongol by pointing a handgun at her, and two

¶161violations of the Street Gang Terrorism and Prevention Act, OCGA

¶162§ 16-15-4 (a) and (d).9

¶163 8 OCGA § 16-5-1(c) provides that a person commits “the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.” OCGA § 16-5-21 (2), in turn, sets out that “[a] person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon . . . .” 9 OCGA § 16-15-4 (a) provides that “[i]t shall be unlawful for any person

¶164employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3.” Count 11 of the indictment charged Simmons with criminal street gang activity by conspiring to commit a criminal offense that involves violence by committing a simple battery on Lee. See

¶165 11  Here, Simmons admitted to and testified about being a member

¶166of the “Bloods” gang, and Bowden testified that he, Lee, and

¶167Simmons trafficked methamphetamine. Although he later recanted,

¶168Simmons further admitted in a statement to Investigator Kelly that

¶169he ordered gang members to beat up Lee, he was present at the

¶170scene when Lee was shot and Tongol was assaulted, and he disposed

¶171of the firearm used in the shooting. Further, a mapping of pertinent

¶172cell phone records corroborated Simmons’s admissions, and Tongol

¶173placed Simmons at the scene of the shooting. This evidence was

¶174more than sufficient for a rational jury to determine that Simmons

¶175was “guilty beyond a reasonable doubt of the crimes of which he was

¶176convicted either as a direct participant or as a party to the crimes

¶177OCGA § 16-15-3 (1) (J) (defining “criminal gang activity” as including the “conspiracy to commit . . . [a]ny criminal offense in the State of Georgia . . . that involves violence . . . whether designated as a felony or not, and regardless of the maximum sentence that could be imposed or actually was imposed”). OCGA § 16-15-4 (d) provides that “[i]t shall be unlawful for any person who occupies a position of organizer, supervisory position, or any other position of management or leadership with regard to a criminal street gang to engage in, directly or indirectly, or conspire to engage in criminal gang activity.” Count 12 of the indictment charged Simmons with being in a leadership position with the “Bloods,” a criminal street gang, and conspiring to commit a criminal offense that involves violence by committing a simple battery on Lee.

¶178 12 charged pursuant to OCGA § 16-2-20 (a).”10 Terrell, 300 Ga. at 84

¶179(1). See also Thomas v. State, 311 Ga. 573, 575 (1) (858 SE2d 504)

¶180(2021) (“As long as there is some competent evidence, even if

¶181contradicted, to support each fact necessary to make out the State’s

¶182case, the jury’s verdict will be upheld.”); Cash v. State, 297 Ga. 859,

¶183864 (3) (778 SE2d 785) (2015) (“A defendant who lacks knowledge

¶184that his co-defendant possessed the gun that was used to commit an

¶185aggravated assault may nevertheless be party to the aggravated

¶186assault.”). As such, this enumeration fails.

¶187 2. Simmons next asserts that the trial court committed two

¶188errors in its instructions to the jury by failing to completely instruct

¶189the jury that a confession must be corroborated as required by

¶190OCGA § 24-8-823 and in instructing the jury on Simmons’s flight.

¶191 Because Simmons did not preserve either claim for ordinary

¶192appellate review by objecting at trial, we review only for plain error.

¶193See Rawls v. State, 310 Ga. 209, 218 (4) (850 SE2d 90) (2020). The

¶194 10 OCGA § 16-2-20 (a) provides: “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of the crime.” 13 four prongs of the plain error analysis are set out in State v. Kelly,

¶195290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011), as follows:

¶196 First, there must be an error or defect – some sort of deviation from a legal rule – that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error – discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

¶197(Punctuation omitted; emphasis in original.) “The Court need not

¶198analyze all of the elements of the plain error test when the appellant

¶199fails to establish one of them.” Hill v. State, 310 Ga. 180, 194 (11) (a)

¶200(850 SE2d 110) (2020).

¶201 (a) Simmons first asserts that the trial court failed to instruct

¶202the jury completely on the principles codified in OCGA § 24-8-823 by

¶203not telling the jury that corroboration of the statements was

¶204“absolutely required” for conviction. We disagree.

¶205 14  OCGA § 24-8-823 provides that all admissions “shall be

¶206scanned with care,” and a “confession alone, uncorroborated by other

¶207evidence, shall not justify a conviction.” Simmons argues that the

¶208trial court did not adequately instruct the jury as to these principles

¶209and did not make it clear enough that a confession must be

¶210corroborated.

¶211 Simmons cannot show error, much less plain error. The trial

¶212court advised the jury that “a defendant’s out-of-court statement

¶213that is not supported by any other evidence is not sufficient to justify

¶214conviction, even if you believe the unsupported statement” and that

¶215“if you find that there was a statement made by the defendant that

¶216was supported by other evidence, the degree of proof necessary to

¶217convict is that you be satisfied of the guilt of the defendant beyond

¶218any reasonable doubt.” This instruction came directly from Georgia’s

¶219pattern jury instructions in effect at the time of Simmons’s trial. See

¶220Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2017),

¶221§ 1.32.70. Because Simmons has not pointed to any authority that

¶222these instructions did not adequately cover the principles that

¶223 15 Simmons claims the trial court should have charged even if the

¶224corroboration requirement of OCGA § 24-8-823 were to apply to

¶225Simmons’s statements,11 Simmons has failed to show that the trial

¶226court committed error that is clear or obvious under current law. See

¶227Ash v. State, 312 Ga. 771, 794-95 (5) (a) (865 SE2d 150) (2021) (Trial

¶228court’s failure to give portion of pattern charge on confession-

¶229corroboration was not plain error because Ash “has pointed to no

¶230precedent holding that the omission of this sentence from the

¶231pattern instruction constitutes error under these circumstances.”).

¶232 Moreover, even assuming error in failing to provide more

¶233complete instructions on confession-corroboration, there was ample

¶234evidence at trial to corroborate Simmons’s statements, including the

¶235cell phone records and testimony from Tongol, Bowden, and

¶236Investigator Kelly such that it is unlikely that the failure to instruct

¶237more on confession-corroboration affected the outcome of the

¶238proceedings. Thus, we conclude that there was no plain error

¶239 11 We do not express any opinion on whether Simmons’s statements are considered confessions, which must be corroborated under OCGA § 24-8-823, rather than admissions. 16 because Simmons has failed to show clear and obvious error and that

¶240any purported error affected his substantial rights. See Hooper v.

¶241State, 313 Ga. 451, 457 (2) (870 SE2d 391) (2022) (no plain error

¶242where appellant failed to demonstrate that trial court’s alleged error

¶243in giving “incomplete” confession-corroboration jury charge likely

¶244affected outcome of the trial in light of “ample corroborating

¶245evidence” of his statements); English v. State, 300 Ga. 471, 474 (2)

¶246(796 SE2d 258) (2017) (no plain error where corroboration was not

¶247required for admissions and even if the statements were confessions,

¶248appellant failed to show that the failure to instruct on corroboration

¶249likely affected the outcome of the proceedings because there was

¶250ample evidence to corroborate the statements).

¶251 (b) Simmons next asserts that the trial court plainly erred in

¶252instructing the jury that evidence of flight had been introduced and

¶253that the evidence could only be considered if the jury found it more

¶254likely than not that Simmons fled to avoid arrest. See Renner v.

¶255State, 260 Ga. 515, 518 (3) (b) (397 SE2d 683) (1990) (It is “error for

¶256a trial court in a criminal case to charge the jury on flight.”).

¶257 17  We agree that this instruction was a clear and obvious error.

¶258See Rawls, 310 Ga. at 219 (4) (a) (“Accordingly, the trial court

¶259committed a clear and obvious error by instructing the jury on flight

¶260in disregard of Renner.”). However, Simmons has not shown how the

¶261instruction “affected his substantial rights, meaning that it probably

¶262affected the outcome of the trial.” Id. at 213 (3). There was ample

¶263evidence other than evidence of Simmons’s flight to establish his

¶264guilt, including Simmons’s own admissions and contradicting

¶265testimony, testimony from Tongol, Bowden, Investigator Kelly, and

¶266a criminal street gang expert, and cell phone records mapping out

¶267Simmons’s phone location on the night of the shooting. Therefore,

¶268“[t]here is no reason to believe that this particular instruction

¶269caused the jury to give undue weight to the flight evidence,

¶270particularly given the other strong evidence against Appellant.” Id.

¶271at 219 (4) (a). For these reasons, this enumeration fails.

¶272 3. Simmons also asserts that his trial counsel rendered

¶273ineffective assistance on three grounds. To prevail on these claims,

¶274Simmons must prove both that his counsel’s performance was

¶275 18 deficient and that he was prejudiced by the deficient performance.

¶276See Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052,

¶27780 LE2d 674) (1984). Deficient performance by trial counsel requires

¶278a showing that “counsel’s acts or omissions were objectively

¶279unreasonable, considering all the circumstances at the time and in

¶280the light of prevailing professional norms.” Neal v. State, 313 Ga.

¶281746, 751 (3) (873 SE2d 209) (2022). To show prejudice, “[t]he

¶282defendant must show that there is a reasonable probability that, but

¶283for counsel’s unprofessional errors, the result of the proceeding

¶284would have been different. A reasonable probability is a probability

¶285sufficient to undermine confidence in the outcome.” Strickland, 466

¶286U.S. at 694 (III) (B).

¶287 a. Simmons asserts that his trial counsel rendered ineffective

¶288assistance in failing to object to the jury instruction on confession-

¶289corroboration.

¶290 At the motion for new trial hearing, Simmons’s trial counsel

¶291testified that she believed the pattern instruction, as given, was

¶292required and that it was in Simmons’s best interest for the jury to

¶293 19 hear that his admissions alone could not be used to convict him.

¶294Moreover, as discussed in Division 2 (a) above, the trial court did not

¶295err in giving this jury instruction. Thus, trial counsel was not

¶296deficient in failing to object. See Durrence v. State, 287 Ga. 213, 218

¶297(2) (a) (695 SE2d 227) (2010) (“Counsel’s failure to make a meritless

¶298objection does not constitute deficient performance.”).

¶299 b. Simmons further asserts that trial counsel rendered

¶300ineffective assistance by failing to object to the jury charge regarding

¶301Simmons’s flight.

¶302 Although we explained in Division 2 (b) that the trial court

¶303erred in instructing the jury on Simmons’s flight, we also concluded

¶304that Simmons failed to show how this instruction “affected the

¶305outcome of the trial court proceedings.” Kelly, 290 Ga. at 33 (2) (a).

¶306Accordingly, this enumeration also fails. See State v. Newman, 305

¶307Ga. 792, 798 (2) (b) (827 SE2d 678) (2019) (explaining that where

¶308“no harm has come from trial court’s error to give a specific charge,

¶309trial counsel could not have been ineffective for failing to request

¶310such a charge”); Hampton v. State, 302 Ga. 166, 168-69 (2) (805 SE2d

¶311 20 902) (2017) (equating the prejudice prong of the plain error test with

¶312the prejudice prong for an ineffective assistance claim).

¶313 c. Simmons next contends that trial counsel rendered

¶314ineffective assistance in failing to adequately investigate his case.

¶315 At the motion for new trial hearing, Simmons claimed that he

¶316gave counsel names of potential witnesses and that trial counsel did

¶317not pursue those leads. However, trial counsel also testified at the

¶318hearing and explained that Simmons did not provide contact

¶319information for these potential witnesses, which Simmons admitted,

¶320arguing that it was the investigator’s job to locate these people and

¶321not his. Trial counsel further testified that the potential witnesses

¶322were mostly gang members who lived a “transient lifestyle” and that

¶323she received threatening phone calls from some of these people,

¶324which the GBI took seriously. The trial court, as finder of fact in a

¶325motion for new trial hearing, was entitled to credit trial counsel’s

¶326testimony as to her efforts to investigate Simmons’s case. See Gray

¶327v. State, 309 Ga. 850, 855 (2) (b) (848 SE2d 870) (2020) (“[T]he

¶328credibility of the witnesses at the motion for new trial hearing was

¶329 21 for the trial court to determine[.]”). Also, Simmons failed to make a

¶330proffer as to what an additional investigation would have uncovered

¶331or what the testimony of the uncalled witnesses would have been

¶332and therefore has failed to establish that the trial outcome would

¶333have likely been different with the additional information. See

¶334Barge v. State, 294 Ga. 567, 569 (2) (755 SE2d 166) (2014)

¶335(explaining that appellant cannot prevail on the prejudice prong of

¶336his ineffective assistance claim where he “did not proffer any

¶337uncalled witness or otherwise proffer a legally recognized substitute

¶338for such testimony” at the motion for new trial hearing). Therefore,

¶339to the extent that trial counsel was deficient, Simmons has failed to

¶340show prejudice.

¶341 4. Finally, Simmons argues that the count of aggravated

¶342assault of Tongol should have been factually merged into the count

¶343for felony murder of Lee.12

¶344 12 Simmons raised this and other additional arguments in his reply brief: that his sentence was overly burdensome, that trial counsel rendered ineffective assistance in failing to object to the stacking of charges, and that there was a lack of accomplice corroboration. Although we consider Simmons’s

¶345 22  As recounted in footnote 1, Simmons was convicted of a number

¶346of charges, but several of the charges merged for sentencing

¶347purposes or were vacated by operation of law. The trial court

¶348properly merged the counts alleging conspiracy to commit

¶349aggravated assault of Lee (Count 1) and aggravated assault of Lee

¶350(Count 4) into the felony murder conviction predicated on

¶351aggravated assault (Count 10). See OCGA § 16-4-8.1 (A person “may

¶352not be convicted of both conspiracy to commit a crime and the

¶353completed crime.”); Hinton v. State, 304 Ga. 605, 609 (3) (820 SE2d

¶354712) (2018) (determining that the trial court properly merged the

¶355underlying aggravated assault count into the felony murder

¶356conviction predicated on aggravated assault). And the other felony

¶357murder count (Count 7) was vacated by operation of law. See Noel v.

¶358claim of merger error, these other issues have been waived because they were not timely raised in his initial appellate brief. See Williams v. State, 307 Ga. 689, 696 n.2 (838 SE2d 314) (2020)(“An appellant who raises an argument for the first time in a reply brief is not entitled to have that argument considered.”); Nazario v. State, 293 Ga. 480, 485 (745 SE2d 109) (2013) (“We held that this customary waiver rule does not apply to merger claims, because merger as a matter of law or fact renders the conviction void and the resulting sentence illegal and requires the reviewing court to vacate the conviction and sentence even if the error was not raised in the trial court and indeed even if it is not enumerated as error on appeal.”). 23 State, 297 Ga. 698, 700 (2) (777 SE2d 449) (2015) (defendant may

¶359only be sentenced on one felony murder charge when found guilty of

¶360the felony murder of the same victim through the commission of

¶361more than one felony, and the remaining felony murder charges are

¶362vacated by operation of law).

¶363 Therefore, the trial court did not err in not merging the

¶364aggravated assault of Tongol (Count 5), a separate victim, into the

¶365conviction for the felony murder of Lee. See Hulett v. State, 296 Ga.

¶36649, 56 (2) (c) (766 SE2d 1) (2014) (“Where two victims are robbed,

¶367the defendant may be charged with, convicted of, and sentenced for

¶368the robbery of each victim.”); Henderson v. State, 285 Ga. 240, 244

¶369(3) (675 SE2d 28) (2009) (“When the underlying felony is committed

¶370upon one victim and the felony murder charged in another count in

¶371the same indictment is committed upon another victim, the

¶372underlying felony does not merge with the felony murder conviction”

¶373and determining that trial court did not err in entering separate

¶374convictions and sentences where defendant was charged with felony

¶375murder of one victim based on armed robbery and armed robberies

¶376 24 of other victims); George v. State, 276 Ga. 564, 565 (2) (580 SE2d

¶377238) (2003) (malice murder and aggravated assault counts do not

¶378merge where murder was committed upon one victim and the

¶379aggravated assault was committed upon a different victim).

¶380 Judgment affirmed. All the Justices concur.

¶381 25