Sevostiyanova v. State, s. A11A1864

CourtUnited States Court of Appeals (Georgia)
Citation12 FCDR 167,722 S.E.2d 333,313 Ga.App. 729
Docket NumberA11A1865.,Nos. A11A1864,s. A11A1864
PartiesSEVOSTIYANOVA v. The STATE (two cases).
Decision Date27 January 2012

12 FCDR 167
313 Ga.App.
722 S.E.2d 333

The STATE (two cases).

Nos. A11A1864


Court of Appeals of Georgia.

Jan. 12, 2012.Reconsideration Denied Jan. 27, 2012.

[722 S.E.2d 338]

Ekaterina Sevostiyanova, pro se.

Barry Edward Morgan, Solicitor–General, Christopher Scott Lanning, Kevin Daniel Bradberry, Assistant Solicitors–General, for appellee.

MIKELL, Chief Judge.

[313 Ga.App. 729] In July 2007, appellant Ekaterina Sevostiyanova was involved in two separate traffic incidents during the course of a single week. As to the first incident, she was convicted following a jury trial on June 15–16, 2009, of two counts of violation of OCGA § 40–6–271 (duty of a driver on striking an unattended vehicle). The second incident resulted in her conviction (after a jury trial on June 8–9, 2009) of hit-and-run (OCGA § 40–6–270) and following too closely (OCGA § 40–6–49). Following a consolidated hearing, the trial court denied her motion for new trial in both cases. Acting pro se, she appeals in Case Nos. A11A1864 (concerning the first incident) and A11A1865 (as to the second incident), asserting insufficiency of the evidence, ineffective assistance of counsel, and other errors. We have consolidated these appeals for disposition, and we affirm in both cases.

As a threshold matter, we address the deficiencies in Sevostiyanova's appellate briefs, which fail to comply with our Rule 25. We note that appellant's election to proceed with her appeal pro se does not excuse her from compliance with the substantive and procedural requirements of the law. 1 She has enumerated 18 errors in Case No. A11A1864 and 16 errors in Case No. A11A1865, with several enumerations containing a number of subdivisions; and in her argument she raises a number of other alleged errors. Many of her [313 Ga.App. 730] claims of error are not supported by citations to the record or to authority, nor are they supported by reasoned argument; therefore, in accordance with Court of Appeals Rule 25(c)(2), they are deemed abandoned, as set forth below. Her failure to adhere to our rules has hampered our ability to ensure that all her alleged errors are addressed; nonetheless, we will review her claims of error to the extent we can, “based on what we perceive [her] arguments to be.” 2

On appellate review of a criminal conviction,

we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of

[722 S.E.2d 339]

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and does not weigh the evidence or determine witness credibility.3

To establish a claim of ineffective assistance, Sevostiyanova must satisfy a two-part test. She “must show that counsel's performance was deficient and that the deficient performance so prejudiced [her] that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different.” 4 In order to show that counsel's performance was deficient, appellant “must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct.” 5 Further, “[f]ailure to satisfy either component of this test is fatal to an ineffectiveness claim[; and] the court need not address both components if the defendant has made an insufficient showing on one of them.” 6 On appellate review of the trial court's ruling, “[w]e accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” 7

Case No. A11A1864

1. Sevostiyanova challenges the sufficiency of the evidence to support her convictions under OCGA § 40–6–271. [313 Ga.App. 731] OCGA § 40–6–271(a) requires a driver, upon striking an unattended vehicle, to stop and provide his or her name and address, as well as that of the owner of the striking vehicle, to the owner or operator of the vehicle struck, either “then and there” or by leaving a note conspicuously placed on the struck vehicle. Subsection (b) of this Code section makes it a misdemeanor to fail to provide this information.

Properly viewed, the record reflects that on July 14, 2007, appellant struck two separate unattended vehicles in the parking lot of an Atlanta Bread Company restaurant: a BMW driven by Davilon Hunter and a Ford F–150 pickup truck driven by Allen Powers. Both victims testified at trial that they saw the collisions occur through the restaurant window; that they ran outside to find that their vehicles had been damaged; and that they saw the driver of the striking vehicle leave the scene without speaking to either of them or leaving a note and without providing any contact information. Powers gave the license tag number of the offending vehicle to the Cobb County police officer who responded to the scene. The police later determined that the tag was issued to a Wade Ford rental car, rented on that day to appellant. Sevostiyanova testified at trial, admitting that she was driving in the parking lot at the time in question, but denying that she collided with any other vehicles.

Sevostiyanova appears to argue that the evidence is insufficient because her version of the events differs from that of the state's witnesses. However, the jury chose to believe the state's witnesses, which it was authorized to do. “It was the jury's role to assess the credibility of the witnesses, resolve any conflicts in the evidence, and arrive at a determination of the facts.” 8 The evidence adduced at trial and summarized above, viewed in the light most favorable to the verdict, was amply sufficient for a rational finder of fact to find Sevostiyanova guilty beyond a reasonable doubt of the charges against her, under the standard set forth in Jackson v. Virginia.9

2. Sevostiyanova contends that her convictions should be reversed because certain evidence, including photographs of her rental car, the BMW, and the pickup truck, was not introduced at trial. She additionally claims error because evidence of a

[722 S.E.2d 340]

severe “microburst” rainstorm was not introduced. These enumerations present nothing for our review. Sevostiyanova has not shown that this material was ever offered in evidence at trial or that the trial court ruled as to its admissibility. This Court may not consider on appeal matters that were neither raised nor ruled on below. “We do not consider issues [313 Ga.App. 732] raised for the first time on appeal, because the trial court has not had opportunity to consider them.” 10

Moreover, we reject appellant's claim that her trial counsel performed deficiently in failing to introduce this allegedly exculpating evidence. At the new trial hearing, trial counsel testified that she consulted extensively with Sevostiyanova before and during the trial and that the exculpatory evidence described by appellant was unavailable at the time of trial (the photographs of the truck's tailgate); was irrelevant to the issues at trial (the photographs of the rental car, taken only after the second incident, not after the incident in the instant case); or was actually harmful to the defense (the expert witness placed the microburst far from the location at issue).

[D]ecisions regarding ... what evidence to introduce are matters of trial strategy and tactics and are within the exclusive province of counsel after consultation with the client. Indeed, such tactical decisions provide no grounds for reversal unless they are so patently unreasonable that no competent attorney would have chosen them.11

The trial court did not err in determining that counsel's performance fell “within the broad range of reasonable professional conduct” 12 and did not constitute ineffective assistance of counsel.

3. Appellant asserts that the nolle prosequi of Count 2, which was entered as part of a negotiated plea on June 25, 2008, could not be reopened and that she could not be tried on this count after she withdrew her nolo plea. We disagree.

The collisions at issue here occurred on July 14, 2007. Sevostiyanova was subsequently charged by accusation with two misdemeanor counts of striking an unattended vehicle (Count 1, as to the BMW; and Count 2, as to the Ford F–150).13 As part of a negotiated plea deal, Sevostiyanova pled nolo contendere on Count 1 and the state nol prossed Count 2. On March 9, 2009, the court permitted her to withdraw her nolo plea, and the case was put on the jury trial calendar for April 9, 2009. On June 15, 2009, the morning of trial, the parties amended the original accusation to strike out the “NP” (nolle prosequi) next to Count 2 and to show that Sevostiyanova [313 Ga.App. 733] “pleads not guilty to Counts one and two June 15, 2009.” 14 The case then proceeded to trial before a jury on June 15–16, 2009. Thus, the state could prosecute Count 2 under the amended accusation, because it was amended before the expiration of the two-year statute of limitation.15

Carlisle v. State,16 cited by appellant, does not require a contrary result. In that case, the defendant entered a plea to four counts of an indictment, and the state nol prossed seven other felony counts. Subsequently, the defendant successfully challenged

[722 S.E.2d 341]

the voluntariness of her plea in a habeas proceeding.17 Our Supreme Court ruled that the state could not revive the nol-prossed counts because they were outside both the statute of limitation and the saving provision of OCGA § 17–3–3. 18 The Court explained that the state is “permitt[ed] to return a new indictment within the applicable statute of limitation, or within six months after the entry of the nolle pros if that occurs later. 19 In the case before us, the accusation was amended within the statute of limitation. This enumeration fails.

4. Sevostiyanova contends that her convictions should be reversed because she was never formally arraigned on the two...

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  • State v. Mondor, S19A0209, S19X0210
    • United States
    • Supreme Court of Georgia
    • 28 Junio 2019
    ...damage, or injury to another." Dworkin v. State , 210 Ga. App. 461, 462, 436 S.E.2d 665 (1993) ; see also Sevostiyanova v. State , 313 Ga. App. 729, 739, 722 S.E.2d 333 (2012). Pointing to Dworkin , which the trial court cited in its order dismissing the indictment, Mondor contends on appea......
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    • United States
    • United States Court of Appeals (Georgia)
    • 8 Junio 2016 based upon specific errors made by counsel, rather than upon trial counsel's experience or lack thereof.” Sevostiyanova v. State , 313 Ga.App. 729, 737, (11) (a), 722 S.E.2d 333 (2012). If a defendant fails to satisfy either prong of the test for ineffective assistance of counsel, it is ......
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    • United States Court of Appeals (Georgia)
    • 26 Octubre 2020 address, as best we can, the arguments we are able to discern and properly consider under our rules. See Sevostiyanova v. State , 313 Ga. App. 729, 730, 722 S.E.2d 333 (2012).850 S.E.2d 819 2. In three interrelated enumerations, Prescott contends that the evidence was insufficient to sup......
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    • 16 Julio 2013
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