Dillard, Chief Judge.Following trial, Tavares Seals was convicted of rape (two counts), burglary, aggravated assault, false imprisonment, third-degree cruelty to children (three counts), and giving a false name to law enforcement. Seals appeals his convictions, arguing that (1) the evidence was insufficient to sustain them; (2) the trial court plainly erred when it failed to rule on his request for a certain jury charge until after closing arguments; (3) the trial court plainly erred in when it gave a sequential charge to the jury, and (4) trial counsel rendered ineffective assistance in several respects. For the reasons set forth infra, we affirm.Viewed in the light most favorable to the jury’s verdict,[1] the record shows that on June 13, 2009, S. P. went to a dance club by herself around midnight. At the club, S. P. ran into Seals, a longtime acquaintance, and they sat at a table chatting with other people. Later, the group danced together, and at some point, Seals asked S. P. if she would meet him after they left the club to have sex, but she declined his request. S. P. then left the club alone sometime between 2:00 a.m. and 2:30 a.m., while Seals stayed there. And after picking up her three children at her father’s house, S. P. drove home and went to bed. Ordinarily, S. P.’s children slept in the living room, but that night, they slept in her bedroom.After S. P. and her children were asleep, she woke up to someone, later identified as Seals, grabbing her head and putting a knife to her neck. Seals then grabbed S. P.’s hair while holding the knife to her neck, at which point the children heard the commotion and got out of bed “screaming and hollering.” When the children exited the bedroom, Seals told them that if they did not go back into the bedroom, he would hurt them. And to prevent S. P. from escaping, he slammed her up against a wall, threw her on the sofa in her living room, and forced her to cover her head with a shirt. Seals then made S. P. lie down on the floor while her children were nearby crying. S. P. did not recognize Seals as her attacker because he disguised his voice, but she believed the perpetrator was someone she knew. Once she was on the floor, Seals tore S. P.’s bra off and had sex with her against her will.Eventually, Seals fled the scene, and S. P. called her father, whose girlfriend then called the police. When the police arrived, S. P. told them about the attack before going to the hospital for treatment and to have a rape kit performed. The police also interviewed S. P.’s children about what happened, and her eldest child identified the intruder as Seals. An investigation ensued, and during a search of S. P.’s home, police recovered a kitchen knife in the living room, where the incident reportedly occurred. Approximately one month after the attack, on July 14, 2009, Seals was arrested, and investigators obtained a DNA sample from him for comparison with the DNA collected from the rape kit performed on S. P. Ultimately, the Georgia Bureau of Investigation tested S. P.’s rape kit and discovered both Seals and S.P.’s DNA.On July 10, 2009, just days before his arrest, Seals encountered S. T. when she was walking home, and he threatened her, saying that if she “[didn't] give [him] none,” he would kill her. S. T. believed this statement to mean that if she did not have sex with Seals, he would “hurt [her] real bad.” But S. T. did not want to have sex with Seals, and she immediately told him so. Despite her protests, Seals pulled S. T.’s hair and choked her while she fought back and tried to escape. Seals then told S. T. to “shut the hell up,” pulled down her pants, and “put his [penis] inside [her] vagina.” During the attack, Seals held S. T.’s neck so tight that she could hardly breathe, and he told her that if she told anyone about what happened, he would kill her. When the assault was over, S. T. walked home and called the police. S. T. reported these events before going to the hospital, where a rape kit was performed. As with S. P., investigators later confirmed that Seals’s DNA was found inside S.T.’s rape kit.Subsequently, as to the attack on S. T., Seals was charged with rape, and as to his assault on S. P., he was charged with rape, burglary, aggravated assault, and false imprisonment. Additionally, Seals was charged with one count each of cruelty to children as to S. P.’s three children. Following a jury trial, Seals was convicted of all charged offenses. He then obtained new counsel and filed a motion for a new trial; and after a hearing on the matter, his motion was denied. This appeal follows.1. Addressing Seals’s last argument first, he contends that the evidence presented at trial was insufficient to support his convictions. We disagree.When a criminal conviction is appealed, “the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.”[2] And in evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility but only resolve whether “a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.”[3] The jury’s verdict will be upheld, then, so long as “there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.”[4] With these guiding principles in mind, we turn now to Seals’s specific challenge to the sufficiency of the evidence presented in this case.Here, citing only the standard for considering whether evidence is sufficient to support a conviction, Seals summarily asserts that the State failed to prove his guilt beyond a reasonable doubt. But he does not argue that the State failed to prove a particular element of any one of his many offenses. Indeed, in his three-paragraph argument as to this claim, Seals does not assert arguments as to any individual offense, cite legal authority applicable to any of his offenses, or present meaningful arguments applying the relevant law to the particular facts of this case. Thus, Seals has abandoned any contention that the State failed to prove the essential elements of each charged offense.[5]Instead of addressing each of his convictions separately, Seals reiterates a small portion of the evidence presented at his three-day trial and essentially asks us to substitute our judgment for that of the jury. Specifically, he points to the testimony he offered in his defense, claiming that he “provided reasonable explanations why the complaining witnesses would testify falsely against him.” He similarly argues that due to “the conflicting nature of the evidence introduced at trial[,]” including his testimony and that of the victims, the State failed to prove its case. But Seals’s argument ignores that the jury obviously did not find his testimony and claims of innocence credible. And, of course, the determination of a witness’s credibility, including the defendant’s testimony, is “ within the exclusive province of the jury.”[6] Indeed, it is the role of the jury, not this Court, to “determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.”[7] And here, Seals’s challenge to his convictions based solely on conflicts in the evidence, which the jury resolved against him, is meritless.[8]2. Next, Seals argues that the trial court plainly erred when it failed to rule on his request for a jury charge that sexual battery is a lesser-included offense of rape until after closing arguments and by giving an improper sequential jury charge. Again, we disagree.As Seals concedes, he failed to object at trial to the timing of the trial court’s ruling on the sexual-battery charge and to the allegedly improper sequential charge. Under such circumstances, we review these issues for plain error under OCGA § 17-8-58 (b).[9] In doing so, we apply a four-prong test. First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived by the appellant.[10] Next, the legal error must be clear or obvious, “rather than subject to reasonable dispute.”[11] Additionally, the error must have affected the appellant’s substantial rights, “which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings.”[12] Lastly, if the above three prongs are satisfied, the appellate court has “the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.”[13] With this standard of review in mind, we will now consider Seals’s specific claims of error.(a) The sexual-battery charge. Shortly before the State rested its case, the trial court discussed certain jury charges with the parties, and at that time, Seals’s trial counsel requested, inter alia, a jury charge on sexual battery as a lesser-included offense at least as to the rape charge involving S. T. Defense counsel noted that Seals planned to testify and deny attacking S. T., but argued that the instruction was proper based on evidence that he grabbed her throat. The court expressed concern that such an instruction might be improper, but ultimately indicated that it needed to “think about” the requested instruction and suggested that the parties discuss the issue further. The court then moved on to address other, unrelated, jury charges, and neither party objected when it did so.Following this discussion, the State presented its final witness and rested its case. The defense then presented several witnesses, including Seals, who admitted having sex with S. P. and S. T., but claimed both sexual encounters were consensual. Then, after the close of evidence and closing arguments, the trial court addressed some outstanding issues before it charged the jury. As to the sexual-battery jury instruction requested by Seals, the parties agreed that it was a lesser-included offense of rape, and the court ruled that it would give the instruction as to both rape charges. And indeed, when charging the jury, the trial court instructed that, as to both rape counts, it could find Seals not guilty of rape, but guilty of sexual battery as a lesser-included offense of rape.Nevertheless, Seals argues that the trial court erred by failing to rule on his request for the sexual-battery charge until after closing arguments, thereby depriving his counsel of the opportunity to make arguments related to that charge. In this regard, OCGA § 5-5-24 (b) provides, in relevant part:In all cases, at the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may present to the court written requests that it instruct the jury on the law as set forth therein. . . . The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury but shall instruct the jury after the arguments are completed.[14]And this is a mandatory rule, “designed to permit counsel to argue the case intelligently before the jury.”[15] And in applying this rule, Georgia courts have found, in some cases, that a trial court’s failure to inform the parties of which jury instructions it planned to give prior to closing arguments constituted reversible error.[16] Nevertheless, as in any case, “[a] party must show harm as well as error on appeal[,]“[17] and as explained supra, under the deferential plain-error standard of review, to warrant reversal of a conviction, “the error must have affected the appellant’s substantial rights, which in the ordinary case” requires the defendant to “demonstrate that it affected the outcome of the trial court proceedings.”[18]Here, at trial, Seals’s sole defense was that he had consensual sex with the victims, he never attacked them, and they fabricated their rape allegations. If the jury believed this defense, it would not be authorized to find Seals guilty of rape or sexual battery. Thus, even if trial counsel had known he could argue to the jury that it could find Seals guilty of sexual battery instead of rape, such an argument would have been in direct conflict with Seal’s own theory of defense. Moreover, as acknowledged by Seals’s trial counsel at the motion-for-new-trial hearing, the evidence presented at trial, including the victims’ testimony, the DNA evidence, and Seals’s admission to having sex with both victims, did not support a conviction for sexual battery because a rape conviction requires evidence of penetration, while sexual battery does not.[19] If counsel had argued otherwise during his closing argument, it would have been unsupported by the evidence and may have served only to confuse the jury.[20] Given these particular circumstances, Seals cannot show that he was harmed when the trial court failed to notify his counsel of its ruling on the sexual-battery charge before closing arguments,[21] much less that the alleged error affected his substantial rights or the outcome of the trial court proceedings.[22](b) The sequential jury charge. Seals argues that the trial court erred in giving an improper sequential jury charge, which instructed the jury that it must unanimously reach a verdict as to rape before considering whether he was guilty of the lesser-included offense of sexual battery.As to sequential jury charges, our Supreme Court recently reiterated its long-standing precedent that “a sequential charge requiring the jury to consider [a lesser-included offense] only if they have considered and found the defendant not guilty of [the greater indicted offense] is not appropriate [when] there is evidence that would authorize a charge on [the lesser offense].”[23] But instructing the jury that it must consider the greater offense before considering any lesser-included offense is “not equivalent to instructing them that they may consider the lesser included offense only if they have considered and found the defendant not guilty of the greater offense.”[24] Indeed, a trial court may instruct a jury to consider “a greater offense before it considers a lesser offense[,] [but] [a] trial court may not . . . instruct the jury that it must reach a unanimous verdict on the greater offense before considering the lesser offense.”[25]Here, Seals argues that the following excerpt from the trial court’s jury charge was improper:If, after considering the testimony and the evidence presented to you, together with the instructions that I’ve given you, you should find and believe beyond a reasonable doubt that Mr. Seals, on July 10, 2009, in Greene County, Georgia, committed the offense of rape, as alleged in Count 1 of the indictment, then you would be authorized to find him guilty. And in that event, the form of your verdict as to that charge would be, “We, the jury, find the defendant guilty.” And you would simply write in the word guilty.If you do not believe that he is guilty of that charge, or if you have any reasonable doubt as to his guilt on that charge, then it’s your duty to acquit him of that particular charge. And in that event, the form of the verdict would be, “We, the jury, find the defendant not guilty.”Now, on the first two counts, there is a lesser[-]included offense which is called sexual battery that I defined for you a minute ago. Now, as to the first two counts of the indictment only, if you do not believe beyond a reasonable doubt the defendant is guilty of the offense of rape, on either one or both charges, but you do believe beyond a reasonable doubt that he is guilty of the offense of sexual battery, then you would be authorized to find him guilty of sexual battery. And in that event, the form of your verdict as to Count 1 and 2[ ] would be, “We, the jury, find the defendant guilty of sexual battery.” And you’d just write out the words sexual battery.Contrary to Seals’s argument, this sequential charge on rape and sexual battery was not improper. First, a sequential jury charge is only improper if, inter alia, there is sufficient evidence to authorize a guilty verdict on the lesser offense,[26] and as previously discussed, the evidence here did not support a sexual-battery conviction because it was undisputed that Seals penetrated both victims.[27] Second, a trial court is permitted to instruct the jury to consider the greater-indicted offense before considering the lesser-included offense, which is exactly what the trial court did in this instruction.[28] There is simply no language in the challenged instruction on rape and sexual battery suggesting that the jury was required to reach a unanimous verdict as to rape before considering the lesser-included offense of sexual battery, and Seals identifies no such language. While Seals uses the word “unanimous” throughout his brief when addressing this claim of error, the trial court did not use that word or any other language that could given the jury the impression that it must reach a unanimous verdict on rape before even considering sexual battery. And because Georgia’s appellate courts have held that sequential jury instructions similar to the one in this case were not reversible error, Seals has not shown that the trial court erred, plainly or otherwise.[29]3. Finally, Seals argues that he received ineffective assistance of counsel in several respects. Once again, we disagree.In evaluating Seals’s claims that his trial counsel rendered constitutionally ineffective assistance, we apply the twopronged test established in Strickland v. Washington,[30] which requires that he show his trial counsel’s performance was “deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.”[31] Additionally, there is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption.[32] In applying the second prong, the question is whether “there exists a reasonable probability that, but for his counsel’s errors, the jury would have had reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”[33] And unless clearly erroneous, this Court will “uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel; however, a trial court’s legal conclusions in this regard are reviewed de novo.”[34] Bearing this analytical framework in mind, we will now address each of Seals’s claims in turn.(a) Seals argues that his trial counsel was ineffective by failing to object to the trial court’s failure to rule on his request for a sexual-battery jury charge until after closing arguments because it deprived counsel of an opportunity to address that issue during his closing argument.At the motion-for-new-trial hearing, Seals’s trial counsel testified about his chosen trial strategy, explaining that he focused on an argument that the victims’s sexual encounters with Seals were consensual and presented an “all or nothing” defense because he did not believe the charge on sexual battery was supported by the evidence. Although he requested the sexual-battery instruction as “a shot in the dark[,]” he testified that arguing that issue would not have been consistent with his consent defense, and the evidence presented showed only sexual intercourse and penetration.[35] And while counsel testified that he would not “give up” other possible defenses, he chose to focus on a consent defense because, inter alia, Seals admitted having sex with both victims, and his testimony was supported by DNA evidence. According to defense counsel, the jury’s only task was to determine whether the sex was consensual or constituted rape.Given this testimony, and the evidence presented at trial, Seals’s counsel was not deficient for pursuing an “all or nothing” defense, rather than arguing to the jury that it could find Seals guilty of sexual assault instead of rape and seeking the court’s permission to do so. As our Supreme Court has explained, “[a]n attorney’s decision about which defense to present is a question of trial strategy[,] [and] [m]ore specifically, pursuit of an ‘all or nothing’ defense generally is a permissible trial strategy.”[36] And for the same reasons, Seals cannot show that he was prejudiced by trial counsel’s decision not to seek a ruling on the sexual-assault jury charge prior to closing arguments.[37](b) Next, Seals argues that his trial counsel was ineffective for failing to object to the trial court’s improper sequential charge to the jury. Given our holding in Division (2) (b) supra, that the challenged jury instruction was permissible, trial counsel was not ineffective for failing to make a futile, meritless objection to it.[38](c) Seals also contends that his counsel was ineffective by failing to object to numerous hearsay statements that tended to bolster the credibility of the two alleged victims.Here, Seals challenges testimony by doctors and police investigators, in which they described what they observed when interacting with the victims and statements the victims made to them at that time. Each of these witnesses provided testimony that was substantially consistent with S. P. and S. T.’s testimony at trial about their sexual assaults.In Georgia, a witness’s prior consistent statement is admissible only when: “(1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for crossexamination.”[39] And a witness’s veracity is placed in issue so as to permit the introduction of a prior consistent statement if “affirmative charges of recent fabrication, improper influence, or improper motive are raised during crossexamination.”[40] Finally, to be admissible to refute the allegation of fabrication, the prior statement must “predate the alleged fabrication, influence, or motive.”[41]Here, it is undisputed that both victims were present at trial, and their veracity was challenged when Seals contended that the victims fabricated their rape allegations. The State appears to suggest that the victims’ prior out-of-court statements were admissible because Seals insinuated at trial that each victim had an improper motive to accuse him of rape. Specifically, as to S. P., the State notes that Seals presented evidence that she was motivated to lie because he failed to pay her money that he promised to pay, and S. T. may have lied because she did not want her boyfriend to find out she was “fooling around.” But even if Seals had explicitly argued that the victims had these improper motives to lie, the motives would have arisen before the victims told anyone, prior to or during trial, that they were raped. Thus, Seals’s counsel may have been able to raise objections to the testimony at issue.[42]Nevertheless, at the motion-for-new-trial hearing, Seals’s trial counsel testified that any hearsay testimony from law enforcement or treatment providers was harmless in this case because “it didn’t bolster the [victims' testimony] and it didn’t add any out-of-court statement that [he] didn’t have a chance to cross-examine prior to [the witnesses] making them.” Defense counsel conceded that he may have been wrong, but maintained this was his opinion at the time. Additionally, counsel noted that “sometimes an objection to something like this can do more harm than good in the case.” For example, counsel testified that the prosecutor in this case appeared nervous during the trial and “kind of stutter[ed] along,” and he did not want to give the jury the impression that he was attacking the victim or opposing counsel. Seals’s counsel also believed that in a “sexual assault case of any nature,” one should avoid raising certain objections or “[y]ou’ll get hurt.” But counsel acknowledged that there is a fine line when making decisions about whether to object in these circumstances and the “boundaries of that line are sort of . . . fuzzy.”Given this testimony, even if Seals has identified meritorious objections that his counsel could have made to hearsay testimony during trial, he cannot show that counsel’s affirmative decision not to raise such objections was so patently unreasonable that no competent attorney would have made the same decision. Indeed, reasonable decisions as to whether or not to raise a specific objection are “ordinarily matters of trial strategy and provide no ground for reversal.”[43] As detailed above, trial counsel provided strategic reasons for his failure to raise such objections to the testimony identified by Seals. And we have held that these types of decisions constitute reasonable trial strategy and do not amount to ineffective assistance of counsel.[44]For all these reasons, we affirm Seals’s convictions.Judgment affirmed. Gobeil and Hodges, JJ., concur.
