Abernathy v. State

A jury found Jerry Levern Abernathy guilty of two counts of First Degree Forgery.1 Abernathy’s convictions stem from two checks, drawn on the account of his former employer, which, the jury found, he forged and gave to acquaintances to negotiate. Abernathy appeals, asserting that the State improperly placed his character in evidence, that the trial court erred in charging the jury and in sentencing him as a recidivist, and that he received ineffective assistance of counsel. For reasons that follow, we affirm.

1. In his first enumeration of error, Abernathy asserts that the trial court “erred in not sua sponte granting a mistrial when a State’s witness put his character into evidence by stating that he had been in prison.” We are aware of no authority—and Abernathy has not cited any—that requires a trial court to take such action, sua sponte. Because Abernathy failed to object to the testimony at trial, he has waived the issue for appeal.2 Furthermore, the trial court’s failure to grant a mistrial does not constitute plain error.3 In Paul v. State, the Georgia Supreme Court limited application of the plain error rule to death penalty cases and other criminal cases where the trial court violates OCGA § 17-8-57 by improperly expressing its opinion as to the guilt of the accused.4 This is not such a case.