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Docket Number

A95A2703

Attorney(S)

Zion, Tarleton Siskin, Jonathan J. Wade, for appellant. J. Tom Morgan, District Attorney, Desiree L.S. Peagler, Gregory J. Lohmeier, Robert M. Coker, Assistant District Attorneys, for appellee.

Judges

Gary Blaylock Andrews

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Smart Summary

Case Summary: Parker v. The State, A95A2703 (Ct. App. Ga. Feb. 21, 1996)

Factual and Procedural Background

Anthony Parker was tried in DeKalb Superior Court before Judge Seeliger and convicted by a jury of aggravated sodomy, possession of a firearm during the commission of a crime, two counts of aggravated assault, and two counts of simple battery. All charges arose from events at the victim's house on the evening of June 28, 1990. The victim testified that Parker violently attacked her — striking her in the face, choking her, threatening to stab her with scissors, holding a gun to her head while threatening to kill her, and, while the gun was within his reach immediately after these events, forcing her against her will to put his penis in her mouth. Physicians and a police officer testified to the victim's injuries and appearance. The State also introduced similar-offense evidence and evidence of prior difficulties between Parker and the victim. Parker testified in his own defense and denied the charges, offering an alternative explanation for the victim's injuries. Parker appealed from the judgment entered on his convictions. The Court of Appeals affirmed the judgment.

Legal Issues Presented

Whether the evidence presented at trial was sufficient to sustain Parker's convictions under the Jackson v. Virginia standard.
Whether the trial court's order prohibiting consultation between Parker and defense counsel during a weekend recess of his ongoing testimony violated the Sixth Amendment right to assistance of counsel.
Whether the trial court erred by responding in writing to a jury note during deliberations without consulting defense counsel on the record.
Whether the trial court improperly admitted similar-transaction and prior-difficulties evidence.
Whether trial counsel provided ineffective assistance on multiple asserted grounds (enumerated by appellant).
Whether constitutional claims about sentencing (including life imprisonment on the aggravated sodomy conviction) raised for the first time in the motion for new trial were reviewable on appeal.
Whether various evidentiary rulings (e.g., admission of physician testimony recounting victim's statements, admission of recorded telephone messages) and jury-charge issues were erroneous.
Whether the defendant's right to be present at all critical stages of the trial was violated when brief proceedings occurred in his absence.

Arguments of the Parties

Appellant's Arguments (Parker)

The evidence was insufficient to support the convictions.
The trial court's order forbidding consultation with counsel during a weekend recess of his ongoing testimony violated his Sixth Amendment right to assistance of counsel.
The court improperly answered a jury question without consulting defense counsel during deliberations.
The trial court erred by admitting similar-transaction evidence and evidence of prior difficulties between Parker and the victim.
Trial counsel was ineffective for numerous alleged failures (failing to object to character evidence, failing to investigate the scene, failing to prepare Parker to testify, failing to investigate chain of custody, failing to defend against similar transaction/prior difficulties evidence, failing to object to the consultation prohibition, failing to present mitigating evidence, failing to object to the jury note response, failing to call witnesses, waiving Parker's presence at critical stages, and failing to object to jury instructions/comments).
His constitutional rights were violated by sentencing (life imprisonment on aggravated sodomy) raised first in motion for new trial.
The record/transcript is incomplete or inaccurate; thus appellate review is inadequate.
The court improperly admitted certain statements and an audio tape without foundation or with incompleteness.
The trial court failed to give requested jury instructions and used improper language regarding reasonable doubt.

Appellee's Arguments (The State)

The evidence was sufficient for a rational trier of fact to convict under Jackson v. Virginia.
The trial court's order limiting consultation during the weekend applied only to ongoing testimony and, in the context, did not deny assistance of counsel; the State moved for the order.
The State made an affirmative pre-trial showing to establish admissibility of prior similar offenses; the similar-transaction evidence was admissible and sufficiently similar to the charged offenses.
The evidentiary foundations for admission of recorded messages and physician testimony were adequate.
The State relied on the trial record (and the absence of timely objections or record supplementation) to argue that asserted errors were waived or not preserved for appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Grier v. State, 218 Ga. App. 637 (463 S.E.2d 130) (1995)	Standard for viewing the evidence on appeal (presumption of innocence no longer applies; view evidence in light most favorable to verdict).	The court cited Grier in stating the appellate standard and concluded the evidence was sufficient to support convictions under that standard.
Jackson v. Virginia, 443 U.S. 307 (1979)	Standard for sufficiency of the evidence — whether any rational trier of fact could find guilt beyond a reasonable doubt.	The court applied the Jackson standard and held the evidence met that standard for all charged offenses.
Geders v. United States, 425 U.S. 80 (1976)	Prohibition on consulting counsel during an overnight (long) recess of ongoing testimony may violate the Sixth Amendment.	The court recognized Geders governs long recesses and concluded Geders is the applicable rule for the weekend recess issue unless waived or not shown on the record to have caused deprivation.
Perry v. Leeke, 488 U.S. 272 (1989)	Perry holds Geders does not apply to very brief recesses (e.g., 15 minutes); judge may maintain status quo during brief recess to prevent coaching.	The court contrasted Perry with Geders, explaining Perry permits limitation of consultation for brief recesses but concluded Geders controls for a weekend recess absent record evidence of a desire to consult.
Crutchfield v. Wainwright, 803 F.2d 1103 (11th Cir. 1986)	To preserve a claim of deprivation of assistance of counsel based on denial of consultation, defendant or counsel must indicate on the record a desire to confer.	The court relied on Crutchfield to hold that, because neither Parker nor counsel indicated a desire on the record to consult over the weekend, there was no preserved Sixth Amendment deprivation claim.
State v. O'Quinn, 192 Ga. App. 359 (384 S.E.2d 888) (1989)	On appeal, the appellant has the burden to show error by the record.	The court relied on O'Quinn to find Parker failed to supplement the record about the jury note and thus failed to meet his burden to show error.
Hunter v. State, 202 Ga. App. 195 (413 S.E.2d 526) (1991)	Failure to object contemporaneously to similar transaction evidence at trial waives the claim on appeal.	The court held Parker waived his challenge to similar-transaction evidence because he did not object at trial when the evidence was introduced.
Campbell v. State, 263 Ga. 824 (440 S.E.2d 5) (1994)	Similarity requirement for admission of prior offenses — prior acts may be admissible if sufficiently similar to tend to prove charged offense.	The court cited Campbell for the proposition that the prior offenses admitted were sufficiently similar to tend to prove the charged offenses.
Obiozor v. State, 213 Ga. App. 523 (445 S.E.2d 553) (1994)	Support for similarity analysis regarding prior offenses.	The court referenced Obiozor along with Campbell to support the admissibility of prior similar-offense evidence.
Toney v. State, 216 Ga. App. 240 (453 S.E.2d 813) (1995)	Failure to object at trial to prior-difficulties evidence waives appellate review.	The court relied on Toney to find Parker waived his claim concerning admission of prior-difficulties evidence when he failed to object at trial.
Williams v. State, 261 Ga. 640 (409 S.E.2d 649) (1991)	Standards and requirements for admission of prior similar transaction and related evidence.	The court addressed Parker's contention that Williams requirements were not complied with and concluded any omission in explicit on-the-record rulings caused no harmful error because sufficient evidence existed for compliance.
Maxwell v. State, 262 Ga. 73 (414 S.E.2d 470) (1992)	Discussion of Williams and related evidentiary rulings.	The court cited Maxwell in the context of Williams and retroactivity; it noted the trial occurred prior to Williams but that Williams is given retroactive effect.
Ramirez v. State, 205 Ga. App. 217 (422 S.E.2d 3) (1992)	Statement that Williams is given retroactive effect.	The court cited Ramirez to support the proposition that Williams is given retroactive effect despite the 1990 trial date.
Morales v. State, 210 Ga. App. 414 (436 S.E.2d 528) (1993)	Where trial court fails to make specific on-the-record Williams findings, appellate courts may nevertheless find no harmful error if evidence supports the requirements.	The court relied on Morales to conclude any lack of specific on-the-record Williams findings was not harmful because the evidence supported admission.
Black v. State, 264 Ga. 550 (448 S.E.2d 357) (1994)	Recognition that Sixth Amendment includes right to effective assistance of counsel.	The court cited Black in discussing the standards for ineffective assistance claims to be applied to Parker's numerous ineffectiveness allegations.
Strickland v. Washington, 466 U.S. 668 (1984)	Two-pronged test for ineffective assistance: deficient performance and prejudice.	The court applied Strickland's two-pronged test in evaluating each of Parker's ineffective-assistance claims.
Zant v. Moon, 264 Ga. 93 (440 S.E.2d 657) (1994)	Reiteration of Strickland standards as applied in Georgia.	The court cited Zant to support the application of Strickland's ineffective assistance framework.
Smith v. Francis, 253 Ga. 782 (325 S.E.2d 362) (1985)	Application of objective standard of reasonableness for counsel's performance.	The court cited Smith v. Francis in connection with measuring counsel's performance against an objective standard.
Williams v. State, 214 Ga. App. 106 (446 S.E.2d 789) (1994)	Deference to trial court findings that defendant received effective assistance unless clearly erroneous.	The court invoked this Williams (appellate) authority to note that trial court determinations on effective assistance are upheld unless clearly erroneous.
Baines v. State, 201 Ga. App. 354 (411 S.E.2d 95) (1991)	Consideration of mitigating evidence at sentencing and standards for counsel's performance at sentencing.	The court cited Baines in upholding the trial court's finding that counsel's performance at sentencing was not ineffective despite appellant's claims of omitted mitigating witnesses.
Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207 (88 S.E.2d 167) (1955)	Foundation requirements for introduction of recorded messages or tapes.	The court cited Solomon to support the conclusion that a proper foundation was laid for admission of the recorded telephone messages.
Southerton v. State, 205 Ga. App. 366 (422 S.E.2d 251) (1992)	Appellate courts will not presume error where appellant fails to establish what the record should reflect by methods in OCGA § 5-6-41.	The court applied Southerton to reject Parker's claims that the trial transcript was incomplete because Parker did not use statutory methods to supplement the record.
Edwards v. State, 255 Ga. 149 (335 S.E.2d 869) (1985)	Prior consistent out-of-court statements are admissible when the witness's veracity is at issue and the witness is present and subject to cross-examination.	The court cited Edwards to support allowing the physician to testify as to the victim's out-of-court statements identifying Parker.
Cuzzort v. State, 254 Ga. 745 (334 S.E.2d 661) (1985)	Same principle as Edwards regarding prior statements admissible when witness's veracity is at issue.	The court cited Cuzzort along with Edwards to justify admission of the victim's prior consistent statements through the physician.
Bryson v. State, 210 Ga. App. 642 (437 S.E.2d 352) (1993)	Permitting consideration of prior convictions in aggravation at sentencing when appropriate procedures followed.	The court cited Bryson in concluding there was no error in the trial court's consideration of tendered prior convictions at sentencing despite an apparent inadvertence in formal admission.
Clayton v. State, 149 Ga. App. 374 (254 S.E.2d 495) (1979)	Support for consideration of tendered prior convictions at sentencing under proper circumstances.	The court cited Clayton as additional authority to validate the trial court's consideration of the prior convictions.
Boney v. Tims, 254 Ga. 664 (333 S.E.2d 592) (1985)	Permissibility of considering evidence properly admitted during guilt-innocence phase when determining sentence.	The court cited Boney to reject Parker's contention that the trial court erred by considering evidence from the guilt-innocence phase at sentencing.
Gilbert v. State, 176 Ga. App. 561 (336 S.E.2d 828) (1985)	Analysis of whether separate acts constitute separate offenses for merger purposes.	The court cited Gilbert (and Taylor) to conclude aggravated assault by use of a handgun and aggravated sodomy did not merge because they were separate acts.
Taylor v. State, 202 Ga. App. 671 (415 S.E.2d 483) (1992)	Authority on merger of offenses and separate-act analysis.	The court cited Taylor alongside Gilbert in concluding the two offenses were distinct and did not merge.
Vance v. State, 262 Ga. 236 (416 S.E.2d 516) (1992)	Disapproval of phrasing "to a moral and reasonable certainty" when instructing on reasonable doubt.	The court acknowledged Vance disapproved the phrase but found no reversible error because the charge, viewed as a whole, accurately conveyed reasonable doubt.
Caldwell v. State, 263 Ga. 560 (436 S.E.2d 488) (1993)	Support regarding jury-charge language and the overall adequacy of reasonable-doubt instructions.	The court cited Caldwell to support the conclusion that any problematic phrasing did not create reversible error given the charge as a whole.
Armstrong v. State, 265 Ga. 18 (453 S.E.2d 442) (1995)	Reinforcement of standards for reasonable-doubt instruction adequacy.	The court cited Armstrong along with Vance and Caldwell to uphold the jury instruction despite use of the disapproved phrase.
Harrison v. State, 213 Ga. App. 366 (444 S.E.2d 613) (1994)	Issues not objected to at trial cannot be raised for the first time on appeal.	The court relied on Harrison to reject several appellate complaints that were not preserved by objection at trial.
Smith v. State, 209 Ga. App. 699 (434 S.E.2d 528) (1993)	Discussion of whether a brief hearing is a critical stage and the right to be present; precedents on presence/waiver.	The court cited Smith (and Stone) when discussing whether Parker's absence at a brief hearing constituted error and whether counsel's waiver bound Parker.
Stone v. State, 177 Ga. App. 750 (341 S.E.2d 280) (1986)	Authority on presence at trial and waiver issues.	The court cited Stone along with Smith in evaluating Parker's claim that he was absent from a brief hearing and did not consent.
Allen v. State, 199 Ga. App. 365 (405 S.E.2d 94) (1991)	Waiver and acquiescence principles regarding defendant's presence and counsel's waiver.	The court applied Allen to conclude Parker acquiesced to waiver by failing to repudiate it at the first opportunity.
Wilson v. State, 212 Ga. 73 (90 S.E.2d 557) (1955)	Defendant's right to be present at all stages of trial; when counsel's waiver binds defendant.	The court cited Wilson to explain that counsel's waiver binds the defendant only if made in the defendant's presence, by express authority, or later acquiesced in by defendant.
Woods v. State, 222 Ga. 321 (149 S.E.2d 674) (1966)	Constitutional claims must be raised at the first opportunity; cannot be first raised in a motion for new trial.	The court cited Woods to hold that Parker's sentencing-related constitutional claims raised first in the motion for new trial were not timely and thus not reviewable.
Harper v. State, 213 Ga. App. 611 (445 S.E.2d 300) (1994)	Support for the principle that untimely constitutional claims confers no jurisdiction for appellate review.	The court cited Harper in declining to consider Parker's late-raised constitutional sentencing claims.
Maynard v. State, 217 Ga. App. 344 (457 S.E.2d 253) (1995)	Same principle regarding timeliness of constitutional claims.	The court cited Maynard along with Harper to support exclusion of untimely sentencing-related constitutional claims.
Stanley v. State, 250 Ga. 3 (295 S.E.2d 315) (1982)	Standards for granting a mistrial and trial court's discretion in denying a mistrial.	The court cited Stanley in upholding the trial court's denial of a mistrial after a witness stated Parker "had a history of violence" and "had recently gotten out of jail" and in support of the court's instruction to disregard.

Court's Reasoning and Analysis

The court structured its analysis by addressing, in turn, each of the enumerated claims raised on appeal. The court applied established standards of appellate review and evidentiary and constitutional law to the facts in the record:

Sufficiency of the evidence: The court applied the Jackson v. Virginia standard (citing Grier) and concluded the evidence — victim testimony, medical testimony of contusions and neck tenderness, an officer's observation of the victim, similar-offense evidence, and Parker's prior difficulties with the victim — was sufficient for a rational trier of fact to find guilt beyond a reasonable doubt on all counts.
Sixth Amendment — consultation during recess: The court examined Geders (long recess rule) and Perry (short recess rule). Because the prohibition here covered a weekend recess, Geders principles control. However, the court emphasized the lack of any contemporaneous record indication that Parker or his attorney sought to consult over the weekend; defense counsel made no objection and stated there were no plans to consult. Relying on Crutchfield, the court held that a defendant or counsel must indicate a desire to confer on the record to preserve a deprivation claim; absent such an indication, there was no deprivation of the Sixth Amendment right.
Jury note and court's written response during deliberations: The record contained a jury note and a written judicial response denying the request for Parker's written statement. There was no transcript of the proceedings related to the inquiry, and the record did not show whether defense counsel was consulted. Parker bore the burden to show error and failed to supplement the record under OCGA § 5-6-41. Therefore the court found the record insufficient to consider the enumeration and found no reversible error.
Admission of similar transactions and prior difficulties: The State held a pretrial hearing and made an affirmative showing of admissibility of prior offenses against three ex-girlfriends. Parker objected only on the basis of insufficient similarity prior to trial but did not object at trial when the evidence was introduced, thereby waiving the claim under Hunter. In any event the court determined the prior offenses were sufficiently similar to tend to prove the charged crimes and relied on Campbell and Obiozor (and related authorities). The court also declined to address claims not raised in the trial court.
Admission of prior difficulties evidence: The court found the claim waived by failure to object at trial (citing Toney). Even if preserved, the court found no error in admitting such evidence, rejected the contention that such evidence is limited to murder cases, and found that Williams requirements were satisfied (or that any lack of on-the-record Williams findings was harmless under Morales).
Ineffective assistance of counsel: Applying Strickland and Georgia authorities (Black, Zant, Smith v. Francis), the court reviewed each subclaim. - Several claims were deemed abandoned for lack of citation/argument (e.g., failure to object to character evidence; chain-of-custody objection claim; some challenge to charges/comments). - The court found trial counsel's pretrial and trial investigation, preparation of Parker to testify, cross-examination and impeachment efforts (including use of a police report), sentencing mitigation efforts, and decisions regarding witnesses were within the range of reasonable professional judgment and did not satisfy Strickland's deficiency and prejudice prongs. Where the record lacked support for an ineffectiveness allegation, the claim failed. - On the specific claim that counsel waived Parker's presence when a juror was questioned during a telephone call, the court found no reasonable probability of prejudice and accepted counsel's testimony that he informed Parker upon return; Parker did not contradict that testimony at the new trial hearing.
Timeliness of sentencing-related constitutional claims: The court held that constitutional claims first raised in a motion for new trial are untimely and not preserved for appellate review, citing Woods, Harper, and Maynard.
Admission of physician testimony recounting victim's statements: Citing Edwards and Cuzzort, the court held that prior consistent out-of-court statements are admissible where the witness's veracity is at issue and the witness is present and subject to cross-examination; thus no error.
Admission of recorded telephone messages (audio tape): The court found the only trial objection was that a subsequent different message should have been admitted for impeachment; the court rejected that relevance argument and found proper foundation had been laid for admission (citing Solomon). Objections to unintelligible portions were not raised at trial and were not considered for the first time on appeal.
Defendant's presence at a brief hearing: The court reviewed the colloquy showing counsel waived Parker's presence and applied waiver/acquiescence principles (Wilson, Allen, Smith, Stone). Because defense counsel testified he would have informed Parker and Parker did not contradict that testimony, the court concluded Parker acquiesced and that denial of the motion for new trial on this ground was not erroneous.
Sentencing procedures and consideration of prior convictions: Although the tendered prior convictions were not formally admitted due to inadvertence, Parker did not object; they were part of the appellate record and apparently treated as evidence at sentencing. Citing Bryson and Clayton and Boney, the court found no error in considering such evidence at sentencing.
Merger of offenses: The court rejected Parker's argument that aggravated assault (with a handgun) merged with aggravated sodomy, finding the evidence established two separate acts (placing the gun to the victim's head and then later committing the sexual assault) and cited Gilbert and Taylor to support the conclusion.
Jury-charge language on reasonable doubt: The court acknowledged that the trial court used the phrase "to a moral and reasonable certainty," which was later disapproved in Vance. Nevertheless, applying Vance, Caldwell, and Armstrong, the court found no reversible error because the charge as a whole conveyed the concept of reasonable doubt accurately.
Comments and instructions regarding prior difficulties and similar transactions: The court rejected claims that the trial court improperly commented on the evidence or erred in giving instructions prior to introduction of evidence where no contemporaneous objection was made (citing Harrison) and found the instructions after the close of evidence were adequate; it also held the State's requested charges were correct statements of law.
Record completeness claims: The court refused to presume error where Parker failed to employ OCGA § 5-6-41 methods to supplement or correct the appellate record (citing Southerton).

Holding and Implications

JUDGMENT AFFIRMED.

Implications:

The convictions and sentences affirmed in the trial court judgment remain in force; Parker's convictions for aggravated sodomy, possession of a firearm during the commission of a crime, aggravated assaults, and simple batteries stand.
The court found no reversible error in the trial proceedings, no effective-deprivation of Sixth Amendment rights based on the weekend consultation prohibition (given the lack of a contemporaneous record showing a desire to consult), and no reversible ineffectiveness of counsel under Strickland.
Several appellate claims were rejected as waived for failure to object at trial or for lack of preservation/supplementation of the record; constitutional sentencing claims raised first in a motion for new trial were held untimely.
No new judicial precedent was created by this opinion; the court applied existing Georgia and federal authority to the facts presented and repeatedly relied upon established precedents to resolve Parker's claims.

Opinion by Judge Andrews. McMurray, P.J., and Blackburn, J., concur. Decided February 21, 1996; certiorari applied for.

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PARKER v. THE STATE

ANDREWS, Judge.

Anthony Parker was convicted by a jury of aggravated sodomy, possession of a firearm during the commission of a crime, two counts of aggravated assault, and two counts of simple battery. He appeals from the judgment entered on the convictions.

All of the charges stemmed from a series of incidents which occurred at the victim's house on the evening of June 28, 1990. The victim testified that Parker, her boyfriend at the time, violently attacked her and threatened to kill her. She testified that Parker repeatedly struck her in the face with his fists, choked her, threatened to stab her through the heart with a pair of scissors, and held a gun to her head while threatening to kill her. The victim further testified that, immediately after these events, and while the gun was within his reach, Parker forced her against her will to put his penis in her mouth.

Physicians who examined the victim shortly after the attack testified that she had contusion and abrasion injuries to her head and face and tenderness around her neck. A police officer testified that he observed the victim at the hospital the evening of the attack and that her face was swollen. The State also produced similar offense evidence and evidence of Parker's prior difficulties with the victim. Parker testified and denied all the charges. He claimed the victim received her injuries when she got into a fight with another woman at a local grocery store.

1. On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and the evidence is viewed in a light most favorable to the verdict. Grier v. State, 218 Ga. App. 637, 638 ( 463 S.E.2d 130) (1995). This Court does not assume the jury's role as fact-finder by weighing the evidence or by determining the credibility of witnesses, but only determines whether the evidence was sufficient under the standard of Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560) (1979), for a rational trier of fact to find Parker guilty of the charged offenses beyond a reasonable doubt. The evidence was sufficient under this standard to support Parker's conviction on all the charges. Id.

2. Parker claims his Sixth Amendment right to assistance of counsel was violated when, after he completed his direct testimony at the conclusion of proceedings on a Friday afternoon, the trial court ordered defense counsel not to consult with him about his ongoing testimony during the weekend recess of the trial.

In Geders v. United States, 425 U.S. 80 ( 96 SC 1330, 47 L.Ed.2d 592) (1976), the Supreme Court held that the defendant's Sixth Amendment right to assistance of counsel was denied by a court order prohibiting any consultation between the defendant and his attorney during an overnight recess which occurred during the defendant's ongoing testimony. In Perry v. Leeke, 488 U.S. 272 ( 109 SC 594, 102 L.Ed.2d 624) (1989), however, the Supreme Court decided the Geders rule did not apply to a similar order entered by the trial court prior to a brief 15-minute recess taken during the defendant's ongoing testimony. In Perry the Court stated that the defendant there had no constitutional right to confer with defense counsel to discuss his ongoing testimony and held that "just as a trial judge has the unquestioned power to refuse to declare a recess at the close of direct testimony — or at any other point in the examination of a witness — we think the judge must also have the power to maintain the status quo during a brief recess in which there is a virtual certainty that any conversation between the [defendant] witness and the lawyer would relate to the ongoing testimony." Id. at 283-284. The rule is designed to prevent unethical "coaching" or other improper influence on the witness during ongoing testimony. Id. at 282-283. Accordingly, the Court in Perry found that the order prohibiting consultation between the defendant and his attorney during the brief recess did not violate the defendant's Sixth Amendment right to assistance of counsel. In so holding, the Court noted that the contrary holding in Geders was based on a concern that during a long recess any consultation between the defendant and defense counsel would normally encompass matters beyond the defendant's ongoing testimony, which the defendant had a constitutional right to discuss with his attorney. Id. at 284. The Court in Perry concluded that: "It is the defendant's right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess. [ Geders, supra at 88]. The fact that such discussions will inevitably include some consideration of the defendant's ongoing testimony does not compromise that basic right." Perry, supra at 284.

Here, in response to a motion by the prosecutor, the trial court prohibited consultation between Parker and his attorney over the weekend recess only with respect to Parker's ongoing testimony. Since the order applied to a weekend recess, the Geders rule applicable to consultation during long recesses controls. Assuming the Geders rule provides for unrestricted access even as to the defendant's ongoing testimony, there is nothing in the record showing that Parker or his attorney indicated a desire to confer over the weekend recess but were prevented from doing so by the trial court's order. In fact, defense counsel made no objection to the motion and told the trial court there were no plans for any consultation between him and Parker over the weekend recess. "We conclude that a defendant or the defendant's counsel must indicate, on the record, a desire to confer in order to preserve a deprivation of assistance of counsel claim." Crutchfield v. Wainwright, 803 F.2d 1103, 1109 (11th Cir. 1986). In the absence of any such indication, we find no deprivation of the defendant's Sixth Amendment right to assistance of counsel. Parker's testimony at the motion for new trial hearing that he wanted to confer with defense counsel over the weekend recess was given long after the fact and does not serve to resurrect this claim.

3. Parker claims the trial court erred when, during jury deliberations, the jury sent a written question to the court, and the court sent a written response to the jury without consulting defense counsel.

The record contains a copy of a written note from the jury asking whether or not they could have Parker's written statement as evidence and a written response from the trial court stating: "No — the statement in written form cannot be given to you." There is no transcript of the proceedings relating to this inquiry and response, and nothing is in the record showing whether or not the trial court brought the jury's inquiry to the attention of defense counsel. At best, the testimony and colloquy at the hearing on the motion for a new trial showed a lack of recollection as to these events.

Parker has the burden on appeal to show error by the record. State v. O'Quinn, 192 Ga. App. 359, 360 ( 384 S.E.2d 888) (1989). The record was not supplemented by any of the methods provided in OCGA § 5-6-41 to establish the facts relating to this claim. Since the record is not sufficient for consideration of this enumeration, we find no error.

4. Parker claims the trial court erroneously admitted evidence of similar transactions.

The trial court conducted a pre-trial hearing at which the State made an affirmative showing establishing the admissibility of prior similar offenses committed by Parker against three of his ex-girlfriends. The only objection made by Parker prior to trial was that the prior offenses were not sufficiently similar to the present offenses. Since no objection was made when the similar transaction evidence was introduced at trial, this claim was waived. Hunter v. State, 202 Ga. App. 195, 197-198 ( 413 S.E.2d 526) (1991). In any event, there was sufficient similarity between the prior offenses admitted by the trial court and the crimes charged such that proof of the former tended to prove the latter. Campbell v. State, 263 Ga. 824, 825 ( 440 S.E.2d 5) (1994); Obiozor v. State, 213 Ga. App. 523, 526 ( 445 S.E.2d 553) (1994). We will not address other claims of error made on appeal but not raised in the trial court.

5. Parker claims the trial court erred by admitting evidence of prior difficulties between him and the victim.

We find no error. In the first place, since no objection was made at trial when this evidence was introduced, any such claim was waived. Toney v. State, 216 Ga. App. 240, 241 ( 453 S.E.2d 813) (1995). Even if these claims had been preserved for appellate review, there is no merit to Parker's claim that admission of prior difficulties evidence is limited to murder cases ( Sloan v. State, 214 Ga. App. 784, 785 ( 449 S.E.2d 328) (1994), and no merit to the claim that the requirements of Williams v. State, 261 Ga. 640 ( 409 S.E.2d 649) (1991), were not complied with in the introduction of prior difficulties and similar transactions evidence. See Maxwell v. State, 262 Ga. 73, 74-75 ( 414 S.E.2d 470) (1992). This case was tried in 1990 prior to the Williams, supra, decision which, nevertheless, is given retroactive effect. Ramirez v. State, 205 Ga. App. 217-218 ( 422 S.E.2d 3) (1992). Even if the trial court did not make specific rulings on the record that each of the elements enunciated in Williams for admission of the evidence was satisfied, there was no harmful error because the evidence was sufficient for the trial court to have concluded that the Williams requirements were satisfied. Morales v. State, 210 Ga. App. 414, 416 ( 436 S.E.2d 528) (1993).

6. Parker claims his convictions must be reversed because his trial counsel was ineffective in: (a) failing to object to character evidence; (b) failing to investigate the crime scene; (c) failing to prepare him to testify; (d) failing to object to or investigate the chain of custody of certain evidence; (e) failing to investigate or defend against similar transaction and prior difficulties evidence; (f) failing to object to the trial court's order prohibiting him from consulting with counsel; (g) failing to present mitigating evidence during the sentencing portion of the trial; (h) failing to discover and object to the trial court's response to a note from the jury; (i) failing to call witnesses mentioned in the opening statement; (j) improperly waiving and otherwise failing to insure his presence at critical stages of the trial, and (k) failing to object to the trial court's improper charges and comments on the evidence.

The Sixth Amendment right to assistance of counsel also guarantees a criminal defendant the right to effective assistance of counsel. Black v. State, 264 Ga. 550 ( 448 S.E.2d 357) (1994). In order to obtain the reversal of a conviction on a claim of ineffectiveness of counsel, a defendant has the burden of proof under both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668 (104 SC 2052, 80 L.Ed.2d 674) (1984). Zant v. Moon, 264 Ga. 93, 97 ( 440 S.E.2d 657) (1994). Under Strickland, supra, the defendant must prove: (1) counsel's performance was deficient, and (2) counsel's deficient performance prejudiced the defense. In determining whether or not counsel's performance was deficient under the first prong, a court must measure counsel's performance against an objective standard of reasonableness in light of all the circumstances and apply the strong presumption that all of counsel's significant decisions were made in the exercise of reasonable professional judgment. Strickland, supra; Smith v. Francis, 253 Ga. 782, 783 ( 325 S.E.2d 362) (1985). Under the second prong, the test is whether there was a reasonable probability that the outcome of the proceedings would have been different but for counsel's deficient performance. Id. "A trial court's finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous." Williams v. State, 214 Ga. App. 106 ( 446 S.E.2d 789) (1994). We apply these standards to each of the claims of ineffectiveness.

As to the claim that trial counsel failed to object to the admission of improper evidence of Parker's character, we find no citation of authority, no argument, and no reference to the record addressed to this claim. Accordingly, we deem this claim abandoned. Court of Appeals Rule 27 (c). To the extent Parker may be generally referring to the admission of similar transaction and prior difficulties evidence, this evidence was properly admitted, and there is no merit to the claim. See Divisions 4 and 5.

Parker claims trial counsel failed to investigate the crime scene and, thus, failed to determine whether the physical condition of the premises supported the victim's testimony that she was violently attacked. The victim testified that Parker damaged some items in her house months prior to the present attack and that, during the present attack, she bled on the carpet when her finger was cut. Even if trial counsel could have conducted a more complete investigation, we find no basis for reversing the convictions on the possibility that an investigation of the victim's house may have shown the absence of damage which occurred months prior to the present charges or the absence of blood on the floor from the cut sustained by the victim. There was no showing that trial counsel's investigation fell below an objective standard of reasonableness, or, even if it did, that there was a reasonable probability that the outcome of the case would have been different but for the alleged deficiencies.

Parker claims trial counsel failed to prepare him to testify. Defense counsel testified at the hearing on the motion for a new trial that he met with Parker four times prior to trial for at least 5 hours during which he discussed defense strategy and Parker's testimony. We find no merit to this claim of ineffectiveness.

As to the claim that defense counsel failed to object to or investigate the chain of custody of certain evidence, Parker has provided no references to the record, no substantive argument, and no citation of authority in support of this claim. Accordingly, it is deemed abandoned. Court of Appeals Rule 27 (c).

Parker claims trial counsel failed to investigate or defend against similar transaction and prior difficulties evidence. The only citation to the record and argument made by Parker in support of this claim relates to his assertion at the motion for new trial hearing that trial counsel failed to investigate and raise the fact that one of his ex-girlfriends, who gave similar transaction testimony about a prior assault, initially lied to the police about an incident involving him. Parker claims trial counsel should have obtained the testimony of the police officers involved to impeach the witness. There is no merit to this ineffectiveness claim. Defense counsel used the police report on cross-examination of the witness to demonstrate that she lied to the police, and Parker did not demonstrate that testimony from the police officers would have added anything further.

Parker claims trial counsel was ineffective for failing to object to the trial court's order prohibiting him from consulting with counsel over the weekend recess about his ongoing testimony. Even if defense counsel could have objected and argued that Parker was entitled to unrestricted access to counsel over the weekend recess (see Division 2, supra), there is no indication in the trial record that there was any desire or request for any such communication over the weekend recess. Accordingly, there has been no showing that any such deficiency had the effect of denying access to counsel or that there was a reasonable probability that the outcome of the proceedings would have been different but for counsel's deficient performance.

Parker claims trial counsel was ineffective in failing to present mitigating evidence during the sentencing phase of the trial. Although defense counsel offered no witnesses, he called the court's attention to evidence that Parker had two children, that he had been working and had been educated through two years of college, and that he had earned an honorable discharge after serving three years in the United States Marine Corps. Parker testified at the sentencing phase that he did not commit any of the offenses for which he had just been convicted. At the hearing on his motion for new trial, Parker testified that he had family members, friends, or employers who could have testified in mitigation of his sentence about "what kind of person I am in relationships . . . knowing I work . . . my conduct in the community . . . anything to show that [I'm] not as bad a person as the State's portraying [me] to be . . . [and] the kind of person I am in general." The trial judge who sentenced Parker heard this description of the mitigating evidence Parker said should have been presented and found no basis for concluding that counsel was ineffective. We find no reason to conclude this decision was clearly erroneous. See Baines v. State, 201 Ga. App. 354, 355 ( 411 S.E.2d 95) (1991).

Parker claims trial counsel was ineffective for failing to discover and object to the trial court's response to a note from the jury. In the absence of any transcript of the proceedings related to this claim and the lack of any record established pursuant to OCGA § 5-6-41, the record is not sufficient to address the claim. See Division 3.

Parker contends trial counsel promised in the opening statement to present testimony from a witness who was never called to testify. The witness at issue was a person Parker said might have assaulted the victim. Trial counsel testified at the new trial hearing that he was unable to locate this witness despite using a private investigator, that he never mentioned the witness in opening statement, and he never stated he would call him as a witness. The opening statements of counsel were not part of the record. Parker also claims trial counsel was ineffective for failing to call the victim's next door neighbor as a witness because she could have corroborated Parker's claim that no physical altercation occurred between him and the victim. Parker did not produce this witness at the new trial hearing to substantiate this claim, and the witness' statement given to defense counsel prior to the trial and defense counsel's testimony at the new trial hearing about the witness indicated that the witness had a vague recollection of the events and could not say whether or not the man she saw was Parker. There is no basis for reversing the trial court's conclusion that trial counsel was not ineffective for failing to call these witnesses.

Parker claims trial counsel improperly waived and otherwise failed to ensure his presence at critical stages of the trial. The record reflects that, during a break in the trial, it was brought to the trial court's attention that, while a juror was using the telephone, he may have had the opportunity to hear some comments about the case. With defense counsel and the prosecutor present, the trial court asked the juror if he had heard any comments about the case while he was using the phone and the juror replied that he had not heard anything. Parker was not present when the juror was questioned because defense counsel waived his presence. Pretermitting whether this brief exchange was a critical stage at which Parker had a right to be present, we find no basis for concluding that defense counsel's failure to insist on Parker's presence had any reasonable probability of causing a different outcome in the case. Parker also testified from memory that he believed he was not present when the trial court questioned the jury about the status of ongoing deliberations. Given defense counsel's testimony that he had no recollection of Parker's absence during that period, and the lack of any support in the record for Parker's claim that he was not there, we find no error in the trial court's ruling that counsel was not ineffective on this basis.

Although Parker also claims trial counsel was ineffective for failing to object to the trial court's charges to the jury and alleged comments on the evidence, he provides no argument, citation of authority, or references to the record in support of these claims. They are deemed abandoned. Court of Appeals Rule 27 (c).

7. Parker's claim that his constitutional rights were violated when the trial court sentenced him to life imprisonment on the aggravated sodomy conviction were raised for the first time in his motion for new trial. These claims "cannot be raised for the first time in a motion for new trial but must be made at the first opportunity, either in pleadings, objections to evidence, or in some other appropriate way pending the trial." Woods v. State, 222 Ga. 321 ( 149 S.E.2d 674) (1966). Since these constitutional claims were not timely raised and ruled upon by the trial court, they conferred no jurisdiction upon the Supreme Court and present nothing for appellate review in this Court. Harper v. State, 213 Ga. App. 611 612 ( 445 S.E.2d 300) (1994); Maynard v. State, 217 Ga. App. 344, 345 ( 457 S.E.2d 253) (1995).

8. Parker claims the trial court erroneously allowed the State to improperly place his character into evidence.

During the State's direct examination of the witness, in response to a question from the prosecutor about how many times a week Parker would call her, the witness testified that Parker "had a history of violence [and] had recently gotten out of jail." Defense counsel objected and moved for a mistrial. The trial court denied the motion for a mistrial and immediately instructed the jury to disregard those comments by the witness. The trial court did not abuse its discretion in determining that a mistrial was not necessary under the circumstances to preserve Parker's right to a fair trial. Stanley v. State, 250 Ga. 3 ( 295 S.E.2d 315) (1982).

9. Parker contends his right to due process, equal protection, confrontation, effective appellate counsel, and direct appeal were violated because the transcript of the proceedings in the trial court does not fully and accurately reflect what occurred below. Appellate counsel has abandoned most of these claims by failing to support them with argument or citation of authority. Court of Appeals Rule 27 (c). Nevertheless, this enumeration of error has no merit. Since Parker, through his appellate counsel, has not attempted to establish what he claims the record should reflect by any of the methods provided in OCGA § 5-6-41, we will not presume error. See Southerton v. State, 205 Ga. App. 366, 367 ( 422 S.E.2d 251) (1992).

10. Parker claims the trial court erroneously allowed a physician to testify over defense objection as to statements made by the victim to him during his examination of the victim at the hospital in which the victim described the attack and stated Parker was the attacker. There was no error. "[W]here the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible." Edwards v. State, 255 Ga. 149, 151 ( 335 S.E.2d 869) (1985); Cuzzort v. State, 254 Ga. 745 ( 334 S.E.2d 661) (1985).

11. Parker claims the trial court erroneously admitted an audio tape of threatening telephone messages the victim claimed Parker left on her answering machine. He claims no proper foundation was laid for admission of the tape, the admitted tape was incomplete and inaccurate because parts of it were unintelligible, and the complete tape was not admitted.

As to the claim that portions of the tape were unintelligible, this objection was not made in the trial court and will not be considered for the first time on appeal. The only objection made by defense counsel at trial to the admissibility of the tape was that the trial court should have admitted not only the portion of the tape reflecting numerous messages the victim testified were left by Parker, but also a subsequent message on the same tape left by another man stating he would like to meet with the victim. Defense counsel argued that the subsequent message was relevant for purposes of impeaching the credibility of the victim by showing that another man had called her. As the victim had never contended otherwise, we find no error in the trial court's conclusion that the subsequent message was not relevant for this purpose. The trial court correctly concluded that a proper foundation was laid for admission of the recorded messages. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207, 211-212 ( 88 S.E.2d 167) (1955).

12. Parker claims the trial court erred in conducting a critical stage of the trial when he was not present.

A question was raised as to whether a juror who was making a telephone call during a break in the trial may have had the opportunity to overhear comments about the case. The trial court conducted a brief hearing at which only the juror, the prosecutor and defense counsel were present. The trial court asked the juror if he had heard any comments about the case and the juror said he had heard nothing about the case. Parker was not present at the brief hearing. The record reflects that, prior to asking the juror the question, the following colloquy occurred between the trial court and defense counsel: "Defense Counsel: And we need Mr. Parker. Trial Court: Oh, yes. Where is he? . . . Would you waive Mr. Parker's presence at this point? Or would you rather have him here? Defense Counsel: I'll waive it."

"It is the legal right of a person accused of a crime in this State to be present at all stages of his trial . . ." Wilson v. State, 212 Ga. 73, 74 ( 90 S.E.2d 557) (1955). Although a defendant can personally waive this right, in order for a waiver by the defendant's counsel to be binding on the defendant, defense counsel's waiver must be made in the defendant's presence, or by the defendant's express authority, or the defendant must subsequently acquiesce in the waiver. Id. at 77-78.

Parker testified at the new trial hearing that he was not present at the brief hearing and that he did not give defense counsel permission to waive his presence. Defense counsel was questioned at the hearing about the waiver of Parker's presence and was asked if he brought the colloquy he had with the court to Parker's attention after he returned. Defense counsel testified that since it was his normal policy to insure the defendant's presence at all times, he would have informed Parker of what happened when he returned. Parker did not contradict defense counsel's testimony. Accordingly, there was evidence upon which the trial court could conclude that defense counsel immediately informed Parker that the trial court requested and counsel agreed to waive his presence at the brief hearing. There is no evidence that Parker subsequently indicated any objection to the waiver until he raised the issue in his motion for new trial. Pretermitting whether this brief hearing was a critical stage of the trial at which Parker had a right to be present (see Smith v. State, 209 Ga. App. 699, 700 ( 434 S.E.2d 528) (1993); Stone v. State, 177 Ga. App. 750, 751 ( 341 S.E.2d 280) (1986)), we find the evidence was sufficient to support a finding that Parker knew about the hearing and the waiver and acquiesced in the waiver by failing to repudiate it at the first opportunity. See Allen v. State, 199 Ga. App. 365, 368 ( 405 S.E.2d 94) (1991); Wilson, supra at 78. Accordingly, the denial of the motion for new trial on this basis should not be disturbed. Allen, supra at 368.

13. Parker contends the trial court erroneously ignored the requirements of OCGA § 17-10-2 during the pre-sentencing hearing.

He does not contend the state failed to notify him of its intention to use three prior convictions in aggravation of punishment. Nevertheless, he claims the trial court erred in considering the convictions at the sentencing hearing because, after being tendered by the State, they were not formally admitted into evidence. Although apparently through inadvertence the tendered exhibits were not formally admitted, Parker did not object, they are a part of the record on appeal, and they were apparently treated as evidence at the sentencing hearing. Under these circumstances, we find no error in the trial court's consideration of the prior convictions. Bryson v. State, 210 Ga. App. 642, 644 ( 437 S.E.2d 352) (1993); Clayton v. State, 149 Ga. App. 374, 375 ( 254 S.E.2d 495) (1979). Contrary to Parker's contentions, there was no error in the trial court's consideration of any evidence properly admitted in the guilt-innocence phase of the trial in determining the sentence. Boney v. Tims, 254 Ga. 664, 665 ( 333 S.E.2d 592) (1985).

14. There is no merit to Parker's contention that the offenses of aggravated assault by use of a handgun and aggravated sodomy merged as a matter of fact. The evidence clearly shows the commission of two separate and distinct offenses — aggravated assault when Parker placed the gun to the victim's head and threatened to kill her, followed by aggravated sodomy when Parker put the gun down and forced the victim to put his penis in her mouth. Gilbert v. State, 176 Ga. App. 561, 562 ( 336 S.E.2d 828) (1985); Taylor v. State, 202 Ga. App. 671 ( 415 S.E.2d 483) (1992). Parker has abandoned his claim that the two crimes merged as a matter of law. Court of Appeals Rule 27 (c).

15. Parker contends the trial court erroneously used the phrase "to a moral and reasonable certainty" in its charge to the jury dealing with reasonable doubt. The trial court gave the same charges during this 1990 trial which were later disapproved in Vance v. State, 262 Ga. 236, 237-238 ( 416 S.E.2d 516) (1992). Although the better practice is to omit any references to a "moral and reasonable certainty," there was no reversible error because the charge viewed in its entirety "repeatedly and accurately conveyed to the jury the concept of reasonable doubt." Id. at 237; Caldwell v. State, 263 Ga. 560, 563-564 ( 436 S.E.2d 488) (1993); Armstrong v. State, 265 Ga. 18, 19 ( 453 S.E.2d 442) (1995).

16. Parker claims the trial court: (a) improperly made comments to the jury which expressed an opinion in the case in violation of OCGA § 17-8-57, and (b) erroneously charged the jury on evidence of prior difficulties just prior to the introduction of this evidence during the course of the trial.

Parker's claim that the trial court commented on the victim's testimony in a manner that violated OCGA § 17-8-57 by expressing an opinion as to what had been proved or as to Parker's guilt is patently without merit. The record shows that, as an introduction to the court's instructions to the jury on evidence of Parker's prior difficulties with the victim, the trial court simply reminded the jury that they had heard testimony from the victim about events presently at issue. There was no error.

Since no objection was made in the trial court to the instructions given immediately prior to introduction of the prior difficulties evidence, this claim cannot be raised for the first time on appeal. Harrison v. State, 213 Ga. App. 366, 367 ( 444 S.E.2d 613) (1994).

17. Parker claims the trial court: (a) committed error in its instructions to the jury on similar transaction evidence given immediately prior to the admission of this evidence during the course of the trial, and (b) erred in refusing to give his request to charge number 5 on similar transactions during the court's instructions to the jury after the close of the evidence.

Since no objection was made in the trial court to the instructions given immediately prior to introduction of the similar transaction evidence, this issue cannot be raised for the first time on appeal. Harrison, supra at 367.

The trial court adequately charged the jury after the close of evidence as to consideration of the similar transaction evidence. Accordingly, there was no error in the court's refusal to give Parker's requested charge.

18. Contrary to Parker's contentions, the trial court did not err by giving the State's requested charges on similar transactions which Parker admits were correct statements of the applicable law.

19. Parker contends the trial court failed to instruct the jury to separately consider his guilt or innocence on each offense charged in the indictment.

There is no merit to this claim. The trial court instructed the jury as to the elements of each offense Parker was charged with under each count of the indictment. The court also instructed the jury that it must consider each count of the indictment individually and that the State had the duty of proving Parker's guilt beyond a reasonable doubt as to each of the separate counts.

Judgment affirmed. McMurray, P.J., and Blackburn, J., concur.