Branch, Judge.Following a jury trial in Floyd County Superior Court, Otto Orr was convicted of a single count each of family violence battery and cruelty to children in the third degree. Orr filed a motion for a new trial asserting, inter alia, that the trial court erred when it failed to declare a mistrial after the State impermissibly commented on Orr’s pre-arrest silence. After a hearing, the trial court granted Orr’s motion. The State now appeals from that order, arguing that in light of Georgia’s new Evidence Code, the law relied on by the lower court is no longer valid. We find no error and affirm. On appeal from the grant or denial of a motion for a new trial, we employ two different standards of review:We review de novo the trial court’s decision as to any questions of law, while applying the clearly erroneous standard of review to any factual findings made by that court. . . . Thus, we will uphold the trial court’s factual findings if there is any evidence to support them, and we defer to the trial court’s credibility determinations.
Wedel v. State, 328 Ga. App. 28, 28 (761 SE2d 454) (2014) (citations omitted). The facts relevant to this appeal are undisputed and show that the charges against Orr arose out of a physical altercation between Orr and his wife, which took place in the presence of their infant child. At trial, Orr claimed he acted in self-defense, testifying that on the night in question, he was talking on the phone with his sister, but his wife assumed he was on the phone with “another woman.” Acting on this assumption, his wife hit Orr on the head with a glass ashtray, splitting his skin and causing significant bleeding. Orr responded by striking his wife with his closed fist, but he claimed that he only struck his wife one time. On cross-examination, Orr acknowledged that he had never contacted police to report this alleged assault by his wife nor had he told anyone in law enforcement prior to trial about his wife’s role in the couple’s altercation. Orr also presented the testimony of his sister and his cousin. Orr’s sister stated that she was talking on the telephone with Orr on the night in question when she suddenly heard screaming and yelling. When Orr returned to the conversation, he reported that his wife had hit him in the head with an ashtray. When the sister saw Orr later that night, she observed that he had a gash on his head. On cross-examination, the sister acknowledged that Orr did not report the incident to the police, although she encouraged him to do so. Orr’s cousin offered similar testimony, stating that she had seen Orr at his mother’s home late on the night in question and saw that he had a “goose egg” on his head where the skin was split and bleeding. In response to questions from the prosecutor on cross-examination, the cousin acknowledged that Orr did not report his wife’s conduct to police or take a picture of his wound, explaining that Orr did not want his wife to get in trouble. During her closing argument, the prosecutor stated:[Orr] wants to now claim self-defense. I find that particularly convenient. He never told the story [of his wife's attack on him] to the police, never once said: . . . I’m the victim here. She came at me with an ashtray. I submit to you this is something [Orr] made up because he has an interest in the outcome of this case.
