CARLEY, Presiding Justice.
Roger James Reed was indicted for the malice murder of Willie Lee Gatson, an alternative count of felony murder during the commission of aggravated assault, and the aggravated assault and aggravated battery of Gatson's sister Nettie Porter. After a jury trial, Reed was acquitted of malice murder and found guilty of the remaining counts. The trial court entered judgments of conviction on the guilty verdicts, sentenced Reed as a recidivist under OCGA § 17-10-7(c) to life imprisonment without the possibility of parole for felony murder, and also imposed a concurrent 20-year term for aggravated assault and a consecutive 20-year term for the aggravated battery. A motion for new trial was denied, but the trial court vacated the sentence for aggravated assault pursuant to a concession by the State. Reed appeals, understandably raising no error regarding the vacated sentence. See Hill v. State, 290 Ga. 493, 722 S.E.2d 708 (2012).
1. Construed most strongly in support of the verdicts, the evidence shows that Reed began arguing with Gatson during a party at the victims' residence and began fighting with him afterwards. When Ms. Porter intervened in a second attempt to make Reed leave, she grabbed a hatchet to scare him away. Reed took the hatchet from her and struck the victims repeatedly on the head and face, fatally injuring Gatson and severely injuring and disfiguring Ms. Porter. Reed fled and, two blocks away, asked a police officer if he was there because of those "`people getting beat up.'" Reed also lied to
2. Reed contends that the felony murder count of the indictment failed to allege the essential elements of the predicate offense of aggravated assault and that it therefore is fatally deficient or insufficient as a matter of law and is void. This contention
Edmond v. State, 283 Ga. 507, 509-510(5), 661 S.E.2d 520 (2008).
Moreover, the allegations as to the predicate offense of aggravated assault were sufficient. Reed argues that although the felony murder count alleged the use of a hatchet, that tool is not per se a deadly weapon, and the indictment did not allege that it was being used as such. However, that count alleged that Reed "did, while in the commission of a felony, to wit: Aggravated Assault, cause the death of ... Gatson, a human being, when said accused struck the victim on the head with a hatchet...." In charging aggravated assault with a deadly weapon under OCGA § 16-5-21 (a)(2), it is sufficient for the indictment implicitly to allege the use of a deadly weapon or an object which is likely to cause serious bodily injury when used offensively. Morgan v. State, 275 Ga. 222, 226-227(9), 564 S.E.2d 192 (2002); Borders v. State, 270 Ga. 804, 807-808(1), 514 S.E.2d 14 (1999). Compare Smith v. Hardrick, 266 Ga. 54, 55-56(3), 464 S.E.2d 198 (1995) (a non-homicide case where the indictment alleged only that defendant placed his hands around the victim's neck and used them to apply pressure). The felony murder count here implicitly alleged the use of a hatchet as a weapon which, when used offensively, is likely to result in serious bodily injury. Moreover, the allegations of the malice murder count in this case were that Reed "did unlawfully and with malice aforethought cause the death of ... Gatson, a human being, when he struck the victim on the head with a hatchet...." These allegations themselves sufficiently put the defense on notice that Reed was accused of causing Gatson's death by committing an aggravated assault against him. Scott v. State, 276 Ga. 195, 196-197(2), 576 S.E.2d 860 (2003); Borders v. State, supra.
3. Reed further contends that the trial court erred in admitting evidence of a similar transaction from 2000 showing that Reed, who was breaking up with his girlfriend, got into an argument with her, picked up a stick from a yard, and hit her with it, injuring her lips and face. Under Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991), before such evidence is admissible,
Harvey v. State, 284 Ga. 8-9(2), 660 S.E.2d 528 (2008).
Such precedent is inconsistent because the "abuse of discretion" standard is not identical to the "clearly erroneous" standard. In Georgia, it is well-settled that the "clearly erroneous" standard for reviewing findings of fact is equivalent to the highly deferential "any evidence" test. Patel v. Patel, 285 Ga. 391, 392(1)(a), 677 S.E.2d 114 (2009); Delbello v. Bilyeu, 274 Ga. 776, 777(1), 560 S.E.2d 3 (2002); Turpin v. Todd, 271 Ga. 386, 390, 519 S.E.2d 678 (1999); Hall v. Ault, 240 Ga. 585, 242 S.E.2d 101 (1978); Brenntag Mid South v. Smart, 308 Ga.App. 899, 902(2), 710 S.E.2d 569 (2011); Shook v. State of Ga., 221 Ga.App. 151, 152, 470 S.E.2d 535 (1996); Jones v. State, 146 Ga.App. 88, 90, 245 S.E.2d 449 (1978) (the phrase "clearly erroneous" "should not be given varying meanings depending on the type case in which" it appears). Balkcom v. Vickers, 220 Ga. 345, 348(1)(i), 138 S.E.2d 868 (1964), which compares the "any evidence" standard with federal standards of review, is hereby overruled to the extent that it implies that, in Georgia, the "any evidence" rule differs from the "clearly erroneous" standard. However, where a determination by the trial court involves an exercise of discretion, the standard of review is "abuse of discretion," which is at least slightly less deferential than the "any evidence" test. Beasley v. Paul, 223 Ga.App. 706-707(1), 478 S.E.2d 899 (1996) (discussing difference between a motion for directed verdict or for j.n.o.v. and a motion for new trial); McFadden, Brewer & Sheppard, Ga. Appellate Practice § 20:12 (2011-2012 ed.). See also Jones v. Brown, 299 Ga.App. 418, 419, 683 S.E.2d 76 (2009) (although "abuse of discretion" "`is a deferential standard of review, it is not toothless'"). By deduction, therefore, the "abuse of discretion" standard is different from and not quite as deferential as the "clearly erroneous" test.
Furthermore, "[s]ometimes the appellate courts find it necessary to use more than one standard of review to evaluate a single trial-court ruling. [Cit.]" McFadden, supra. Thus, in various contexts, we accept factual findings unless they are clearly erroneous and review a trial court's ultimate decision on the particular issue for abuse of discretion. Smith v. State, 287 Ga. 391, 402(3), 697 S.E.2d 177 (2010); Lawrence v. Lawrence, 286 Ga. 309, 310(1), 687 S.E.2d 421 (2009). See also Hamlin v. Ramey, 291 Ga.App. 222, 225(1), 661 S.E.2d 593 (2008). The Court of Appeals has often done the same thing with respect to similar transaction evidence:
Wright v. State, 313 Ga.App. 829, 831(1)(a), 723 S.E.2d 59 (2012). See also Tatum v. State, 297 Ga.App. 550(1), 677 S.E.2d 740 (2009); Watley v. State, 281 Ga.App. 244, 247(3), 635 S.E.2d 857 (2006); Flowers v. State, 269 Ga.App. 443, 444(1), 604 S.E.2d 285 (2004).
This use of two standards of review for the admission of similar transaction evidence is hereby approved for several reasons. "We review a trial court's evidentiary
Reed argues that there were several dissimilarities between this case and the prior offense. On appellate review, however,
Moore v. State, 273 Ga. 11, 13(2), 537 S.E.2d 334 (2000). In both instances, when someone tried to break up a heated argument, Reed repeatedly struck his victims in the face with objects of considerable size which he obtained at the location of the argument and which could and did cause substantial visible bodily harm. This evidence reflects a sufficient connection between the two incidents such that proof of the former tends to prove the latter. Moore v. State, supra. Thus, the trial court's finding of similarity is "not clearly erroneous and will not be disturbed on appeal. [Cit.]" Harvey v. State, supra at 9(2), 660 S.E.2d 528. The trial court properly determined that the similar transaction evidence was probative of Reed's intent, course of conduct and modus operandi. "Considering the record before us, the court's factual findings were not clearly erroneous and the court did not abuse its discretion in ruling that the evidence was admissible. [Cits.]" Wright v. State, supra at 832(1)(a), 723 S.E.2d 59.
4. Reed also urges that his trial counsel rendered ineffective assistance in two respects.
Lizana v. State, 287 Ga. 184, 185(2), 695 S.E.2d 208 (2010).
(a) Reed claims that trial counsel was ineffective in failing to raise in an appropriate manner the issue of the sufficiency of the indictment as discussed in Division 2 above. Our holding in that division shows that "trial counsel was not ineffective in failing to challenge the indictment, as the felony murder count `would not have been subject to a demurrer, even if [Reed's] attorney had filed one. (Cits.)' [Cit.]" Lizana v. State, supra at 187(2), 695 S.E.2d 208. See also Silvers v. State, 278 Ga. 45, 47(2)(a), 597 S.E.2d 373 (2004).
(b) Reed further claims that his counsel at trial was ineffective in failing to object and to move for mistrial in response to improper
The failure of defense counsel at least to object to an argument of future dangerousness may be found to constitute deficient performance. Jones v. State, 288 Ga. 431, 433-434, 704 S.E.2d 776 (2011); Fulton v. State, 278 Ga. 58, 64-65(8), 597 S.E.2d 396 (2004); Pearson v. State, 277 Ga. 813, 816(5)(b), 596 S.E.2d 582 (2004). However, even "[a]ccepting that the comments were improper and that trial counsel was deficient for failing to object and move for a mistrial in response to the remarks, that is not the end of the inquiry.... [Cit.]" Lloyd v. State, 280 Ga. 187, 192(2)(d)(ii), 625 S.E.2d 771 (2006).
Jones v. State, supra, 288 Ga. at 434.
Lloyd v. State, supra. We conclude that the remarks of which Reed complains, unlike those in Collier v. State, supra at 355(2)(b), 596 S.E.2d 795, were not so "pronounced and persistent" and did not so "lace[] the state's closing argument with an impermissible theme" or "so permeate[] and poison[] the state's closing argument that no curative instruction from the court could have removed the damaging impression planted in the jurors' minds, and that the court therefore would have granted" a motion for mistrial. See Sweet v. State, 278 Ga. 320, 325-326(8), 602 S.E.2d 603 (2004). "Moreover, even when an objection to improper argument is sustained but a mistrial is denied, other action, including the giving of curative instructions, is not mandatory. [Cit.]" Lloyd v. State, supra.
Lloyd v. State, supra. The evidence of Reed's guilt, "including his confession and the eyewitness testimony, is overwhelming." Smith v. State, 281 Ga. 185, 189(3), 640 S.E.2d 1 (2006). See also Richard v. State, 287 Ga.App. 399, 403(4), 651 S.E.2d 514 (2007). Moreover, as reviewed above, the evidence also included the facts that Reed fled, had knowledge of the crimes immediately afterwards, lied to an officer regarding his identity and residence, and made incriminating admissions to his brother. Contrary to an assertion by Reed, the jury's acquittal of the malice murder charge hardly means that the evidence is not overwhelming. Terrell v. State, 245 Ga.App. 291, 294, 536 S.E.2d 528 (2000) (On Motion for Reconsideration); Hudson v. State, 234 Ga.App. 895, 902(3)(b)(iii), 508 S.E.2d 682 (1998). Instead, that acquittal indicates that the jury likely was not prejudiced against Reed because of
"Accordingly, there is no basis upon which to reverse the adverse determination of [Reed's] claim that his trial counsel was ineffective and the consequent refusal to grant him a new trial." Jones v. State, supra, 288 Ga. at 434.
Judgments affirmed.
All the Justices concur, except MELTON, J., who concurs in Divisions 1, 2, and 4, and in the judgment.