Jones v. State

Since there was no fatal variance between the indictment and the proof at trial, defense counsel was not deficient for failing to move for a directed verdict on that basis.

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Following a jury trial, Dan Jones was found guilty of aggravated stalking OCGA § 16-5-90 a and two counts of family violence battery OCGA § 16-5-23.1. Jones filed a motion for a new trial, which the trial court granted as to the latter counts, but denied as to the aggravated stalking count. Jones appeals from the portion of the trial court’s order denying his motion for a new trial, asserting that his trial counsel provided ineffective assistance by a failing to move for a directed verdict based on an alleged fatal variance between the indictment and trial evidence; b failing to move for a directed verdict based on insufficient evidence to support the aggravated stalking charge; and c failing to object to the trial court’s jury charge on aggravated stalking. Concluding that Jones cannot establish ineffective assistance of counsel, however, we affirm. Under Strickland v. Washington , 466 US 668 104 SC 2052, 80 LEd2d 674 1984, “a criminal defendant asserting an ineffective assistance of counsel claim bears the burden of showing 1 that counsel’s performance was deficient and 2 that the deficient performance prejudiced the defense by creating a reasonable probability that but for counsel’s errors, the outcome of the trial would have been different.” Footnotes and citations omitted. Miller v. State , 305 Ga. App. 620, 621 2 700 SE2d 617 2010.

Viewing the evidence in the light most favorable to the verdict, see Jackson v. Virginia , 443 U.S. 307, 318-319 99 SC 2781, 61 LEd2d 560 1979, the record reflects that Jones and the victim were married in 2001 and were divorced in December 2008. The victim’s testimony reflects a turbulent and abusive marriage. In October 2008, the victim and Jones were evicted from the trailer park where they lived; the victim communicated her intent to divorce Jones, and she moved in with her daughter. Because the victim’s daughter did not allow Jones to live in her residence, Jones stayed in his vehicle after he and the victim were evicted from the trailer park.

Jones v. State

Since there was no fatal variance between the indictment and the proof at trial, defense counsel was not deficient for failing to move for a directed verdict on that basis.

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