Full Opinion

FIRST DIVISION BARNES, P. J., MARKLE and HODGES, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.gov/rules September 22, 2026 In the Court of Appeals of Georgia A26A0946. JONES v. THE STATE. MARKLE, Judge. Following a jury trial, Allen Jones was convicted of two counts of aggravated assault (OCGA § 16-5-21(a)(2) (July 2015)), and one count of possession of a firearm during the commission of a felony (OCGA § 16-11-106(b)(1) (2015). He now appeals from the denial of his motion for new trial and the 45-year sentence imposed, arguing that (1) the evidence was insufficient to support his convictions and the trial court erred by denying his motion for directed verdict and refusing to exercise its discretion under the general grounds, OCGA §§ 5-5-20; 5-5-21; (2) the trial court abused its discretion by admitting evidence from a photo lineup; (3) the sentence imposed violates the Eighth Amendment; (4) he received ineffective assistance of counsel due to the failure to seek First Offender treatment; and (5) these cumulative errors require reversal. After a thorough review of the record, we conclude these enumerations are without merit and, accordingly we affirm. Viewing the evidence in the light most favorable to the verdict, Jackson v. Virginia, 443 US 307 (99 SCt 2781, 61 LE2d 560) (1979), the record shows that one evening in November 2015, Demeco Person and Anthony Lundy drove to College Park, Georgia to meet a friend at a party. As they drove through the area, there were numerous people milling about on the sidewalks and a man Person recognized as Jones was standing in the middle of the street. Jones blocked the street for a moment and then walked by the driver’s side as Person drove away. Unable to find the friend’s apartment in the dark, Person and Lundy parked the van Person was driving and walked through the apartment complex. Someone approached them and asked if they were lost. Person responded that they were okay and suggested to Lundy that they walk back to the van and leave. Reco Smith, who had observed Person and Lundy, was concerned that they might be trying to rob someone, and he warned the neighborhood to be careful of the two men. As Person and Lundy drove out of the neighborhood, they paused for a moment to double check the 2 apartment numbers, at which point several people began shooting. One bullet struck Lundy, killing him. The police later identified the shooters as Jones, Percy Small, and Jerrontae Morris. During an interview with police, Dejuan Grier, who was outside that evening, confirmed that Morris, Small, and Jones fired several weapons at the van or in the air. Grier also identified Jones from a photo lineup. Jones was then indicted for murder, two counts of felony murder, criminal damage to property, two counts of aggravated assault, and possession of a firearm during the commission of a felony.1 At trial, Person testified as described above and identified Jones in court as the man he saw in the street that night. The jury also viewed his recorded interviews with police and the photographic lineup in which Person identified Jones. Reco Smith testified that he saw the two men walking around the neighborhood dressed in black and asked them if they were looking for someone. He then returned to the area where Jones, Small, and Morris were, and warned everyone to be careful of the two men. 1 Small and Morris were indicted on additional charges along with another defendant. 3 During his testimony, Grier refused to identify anyone involved, recanted his statements, and claimed that he made the identifications in the interview because he was told to do so by police. The lead investigator testified that Grier identified Small, Jones, and Morris as the shooters during his interviews with police. He further explained that he corroborated portions of Grier’s statements through other witnesses. The jury convicted Jones of the two aggravated assault counts, and the firearm possession, but acquitted him of murder, felony murder, and criminal damage to property.2 The trial court then sentenced Jones to a total of 45 years’ imprisonment. Jones filed a motion for new trial, which he amended several times. Following a hearing, the trial court denied the motion. Jones now appeals. 1. In related enumerations of error, Jones argues that the evidence was insufficient to support his convictions, and the trial court should have granted his motion for a directed verdict. He contends that the only evidence against him was the 2 Morris was convicted of murder, felony murder, and firearms offenses. Small was convicted of aggravated assault and the firearm offenses. Our Supreme Court affirmed Morris’s convictions. Morris v. State, 317 Ga. 87 (891 SE2d 859) (2023). And we affirmed Small’s convictions. Small v. State, 369 Ga. App. 824 (892 SE2d 193) (2023). 4 inconsistent and uncorroborated statements of an accomplice, and there is no other testimony or physical evidence linking him to the shooting. And he argues that his conviction cannot stand under the general grounds, OCGA §§ 5-5-20; 5-5-21, or where it is based on circumstantial evidence that does not exclude every other reasonable hypothesis except his guilt. Finally, he asserts that the firearm possession charge cannot stand because the underlying felony must be reversed. We are not persuaded. The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction: the evidence must be sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. The evidence must be viewed in the light most favorable to support the verdict and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine the credibility of witnesses. Hughes v. State, 297 Ga. App. 217, 217 (676 SE2d 852) (2009) (citation modified). “A motion for a directed verdict should be granted only when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Id. With 5 these standards in mind, we turn to Jones’s arguments regarding the sufficiency of the evidence. (a) Sufficiency. Jones was charged with aggravated assault with a deadly weapon by committing an assault against Lundy by shooting him and against Person by “shooting at, toward, and in his direction with a handgun.” [A]ggravated assault with a deadly weapon occurs when someone attempts to commit a violent injury to another or commits an act which places another in reasonable apprehension of immediately receiving a violent injury by use of a deadly weapon. Whether a victim has been placed in reasonable apprehension of injury is a question of fact, which may be established by indirect or circumstantial evidence. The presence of a deadly weapon would normally place a victim in reasonable apprehension of being injured violently. Colvin v. State, 378 Ga. App. 135, 138(1) (924 SE2d 469) (2025) (citation modified). See also OCGA §§ 16-5-20(a)(1); 16-5-21(a)(2); Hooks v. State, 318 Ga. 850, 852(2)(a) (901 SE2d 166) (2024). Evidence that the men were firing into the air and at the van is sufficient to support a conviction for aggravated assault with a deadly weapon individually or as a 6 party to the crime.3 State v. Small, 369 Ga. App. 824, 827 (892 SE2d 193) (2023); Cammer v. State, 263 Ga. App. 277, 277(2) (587 SE2d 656) (2003). See also OCGA § 16-2-20(a) (“Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.”). Moreover, although Grier recanted his identification of Jones as one of the shooters, it was for the jury to weigh his testimony, evaluate his credibility, and resolve any inconsistencies in the witness’s testimony. Perkins v. State, 313 Ga. 885, 891(2)(a) (873 SE2d 185) (2022); Cox v. State, 306 Ga. 736, 736(1) (832 SE2d 354) (2019); Worthen v. State, 306 Ga. 600, 603(1)(b) (832 SE2d 335) (2019). And, because there was evidence that Jones fired a weapon, the evidence was also sufficient to convict him of possession of a firearm during commission of a felony. Hall v. State 308 Ga. 475, 478 (841 SE2d 672) (2020); OCGA § 16-11-106(b)(1). (b) Accomplice testimony. Jones also contends the evidence was insufficient because it was based solely on accomplice testimony that lacked any corroboration. 3 The jury was instructed on party to a crime, OCGA § 16-2-20. A person is a party to a crime if he commits the crime or “[i]ntentionally aids or abets in the commission of the crime.” OCGA § 16-2-20(b)(1), (3). 7 “OCGA § 24-14-8 provides that corroboration is required to support a guilty verdict in felony cases where the only witness is an accomplice.” Clements v. State, 317 Ga. 772, 789(4) (896 SE2d 549) (2023) (citation modified). It is the jury’s role to determine whether a witness was an accomplice. Doyle v. State, 307 Ga. 609, 612(2)(a) (837 SE2d 833) (2020). See also Caldwell, 313 Ga. 640, 643(1) (872 SE2d 712) (2022). But Grier was not charged with any offenses, and the jury, which was instructed about accomplice testimony, could have found Grier was not an accomplice.4 See Baker v. State, 320 Ga. 156, 162(2)(a) (907 SE2d 824) (2024); Caldwell, 313 Ga. at 643- 45(1). And it is well settled, that “when the issue of whether a witness was an accomplice was submitted to the jury and there was evidence allowing the jury to find that the witness was not an accomplice, corroborating evidence is not required to sustain a guilty verdict on appeal.” Caldwell, 313 Ga. at 644(1). When we view the evidence in the light most favorable to the verdict, we must conclude that the jury 4 The jury was instructed on accomplice testimony and the requirement for corroboration, enabling the jury to determine whether Grier was an accomplice. See Baker v. State, 320 Ga. 156, 162(2)(a)(907 SE2d 824) (2024); Caldwell, 313 Ga. at 643- 44(1). See also Montanez v. State, 311 Ga. 843, 848-49(1)(b) (860 SE2d 551) (2021) (“ the evidence may also authorize a properly instructed jury to find that a witness was not an accomplice, and in that case, the testimony of that witness is sufficient to convict the defendant.”). 8 found Grier was not an accomplice. Thus, his testimony alone was sufficient to establish Jones’s role in the offenses. OCGA § 24-14-8. Caldwell, 313 Ga. at 645(1). (c) General grounds. Jones also argues that the trial court should have exercised its discretion under OCGA §§ 5-5-20 and 5-5-21 to act as the thirteenth juror and grant a new trial. “In any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury.” OCGA § 5-5-20. In addition, “[t]he presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.” OCGA § 5-5-21. These statutes apply what is “commonly known as the ‘general grounds’ for new trial.” State v. Denson, 306 Ga. 795, 798(2) (833 SE2d 510) (2019). Application of these general grounds is a distinct issue from that of the sufficiency of the evidence. Wilkerson v. State, 307 Ga. 574, 574 (837 SE2d 300) (2019). A motion raising the general grounds requires the trial court to exercise its discretion to review the evidence and sit as the “thirteenth juror.” Denson, 306 Ga. at 798(2). In doing so, the 9 court “must consider some of the things that [it] cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence.” Id. (quotation marks omitted). Importantly, however, “[t]he merits of the trial court’s decision on the general grounds are not subject to our review, and the decision to grant a new trial on the general grounds is vested solely in the trial court.” Richardson v. State, 324 Ga. 375, 379(3) (930 SE2d 426) (2026) (citation modified). Here, the record shows that the trial court considered the general grounds independently of the sufficiency review, and exercised its discretion not to grant a new trial. As a result, there is nothing for this Court to review. Richardson, 324 Ga. at 379(3). (d) Circumstantial evidence. Finally, Jones contends his conviction cannot stand because it is based on circumstantial evidence that does not exclude every other reasonable hypothesis except his guilt. Under OCGA § 24-14-6, “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall 10 exclude every other reasonable hypothesis save that of the guilt of the accused.” But, this statutory requirement applies only where the evidence is purely circumstantial; thus, where there is direct evidence of guilt, the statute does not apply. Montgomery v. State, 323 Ga. 188, 191(2) (924 SE2d 335) (2025). Eyewitness testimony is direct evidence, not circumstantial. Douglas v. State, 321 Ga. 739, 747(1)(b) (917 SE2d 115) (2025). Because Grier provided first-hand eyewitness testimony that he observed Jones firing a weapon, the State was not required to eliminate all reasonable hypothesis except that of his guilt. Montgomery, 323 Ga. at 191(2); Douglas, 321 Ga. at 747(1)(b). Accordingly, the trial court properly denied the motion for new trial because the evidence was sufficient, and, on this same basis, the trial court properly denied the motion for a directed verdict. 2. Jones next argues that the trial court abused its discretion by admitting the unauthenticated photographic line-up because (1) the admission of Grier’s identification violated OCGA § 24-9-923(c) in that the procedure to obtain the identification was unreliable; (2) there was no admonition attached, in violation of OCGA § 17-20-2; and (3) the identification was the product of coercive police measures. We discern no reversible error. 11 We review the admission of evidence under an abuse of discretion standard.5 Kirkland v. State, 310 Ga. 738, 740(2) (854 SE2d 508) (2021). (a) OCGA § 24-9-923.6 OCGA § 24-9-923(b) provides: [s]ubject to any other valid objection, photographs, motion pictures, video recordings, and audio recordings shall be admissible in evidence when necessitated by the unavailability of a witness who can provide personal authentication and when the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered. Here, Grier recanted his identification at trial and effectively refused to answer questions, essentially making him “unavailable,” and triggering the authentication requirements. OCGA § 24-9-923(a)(2), (a)(3). But his refusal does not render the 5 During trial, when the State asked Grier about his identification in the photo- lineup, Jones objected to the exhibit because there was no separate admonition attached to it. The trial court overruled the objection, finding the testimony showed Grier had been given the admonition at the time of the prior line-up. 6 Although Jones cites to OCGA § 24-9-923(c), it seems that his argument is actually based on subsection (b), which provides for the admission of photos where the authenticated witness is unavailable, as long as there is “competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered.” OCGA § 24-9-923(b). 12 evidence inadmissible; rather, Grier’s refusal to identify Jones at trial “goes to the weight of the evidence and the credibility of the witness, which are questions for the jury to decide.” Butler v. State, 276 Ga. App. 161, 166(3)(a) (623 SE2d 132) (2005). And, the officer involved in Grier’s interview confirmed that Grier made the identification during an interview and that he had reviewed the video from that interview and the statement Grier made, and they were accurate representations of Grier’s identification. See OCGA § 24-9-923(b); Beamon v. State, 348 Ga. App. 732, (824 SE2d 624) (2019). Cf. Shells v. State, 323 Ga. 527, 538(4) (925 SE2d 905) (2026) (under OCGA § 24-9-901(a), no abuse of discretion in admitting video recordings that were verified by detective involved to establish that evidence was as the State asserted). As such, the trial court was authorized to conclude that there was competent evidence to show that the photo identification was authenticated, and the trial court properly admitted the evidence. (b) OCGA § 17-20-2. Under OCGA § 17-20-2(b), police departments are required to utilize certain policies, including the recitation of an admonition prior to any identification, to ensure the photo identification procedure is not tainted. But, as our Supreme Court has 13 explained, the failure to adhere to these procedures does not require exclusion of the identification. Kirkland, 310 Ga. at 741-42(2)(a); OCGA § 17-20-3 (“The court may consider the failure to comply with the requirements of this chapter with respect to any challenge to an identification; provided, however, that such failure shall not mandate the exclusion of identification evidence.”). Instead, the focus is whether the lineup was unduly suggestive. Kirkland, 310 Ga. at 742(2)(a). See also Roseboro v. State, 308 Ga. 428, 433-34(2)(a) (841 SE2d 706) (2020) (noting that failure to read admonition does not render photo lineup unduly suggestive). “If an out-of-court identification by a witness is so impermissibly suggestive that it could result in a substantial likelihood of misidentification, evidence of that out-of-court identification violates due process and is inadmissible at trial.” Kirkland, 310 Ga. at 740(2) (quotation marks omitted). We consider the admission of identification evidence using a two-step process. Id. First, we review a trial court’s determination that a lineup was not impermissibly suggestive for an abuse of discretion. An identification procedure is not impermissibly suggestive unless it leads the witness to the virtually inevitable identification of the defendant as the perpetrator, and is the equivalent of the authorities telling the witness, “This is our suspect.” Second, if a trial court properly concludes that the State 14 employed an impermissibly suggestive pre-trial identification procedure, the issue becomes whether, considering the totality of the circumstances, there was a substantial likelihood of irreparable misidentification. Kirkland, 310 Ga. at 740-41(2) (citation modified). Where the trial court properly determines the identification process was not unduly suggestive, we need not consider the second prong. Id. In its order denying the motion for new trial, the court found that the identification procedure was not so “unnecessarily suggestive” that it created a substantial likelihood of misidentification. We agree. When Grier was first interviewed and shown a photo line-up, the investigator read the admonition. The fact that the officer did not read it again a few days later at the second interview does not automatically warrant exclusion. See Kirkland, 310 Ga. at 741(2)(a); OCGA § 17-20-3. And, although Jones points to certain comments the officer made to assert that Grier was coerced and the identification was not made voluntarily, he has not shown that the officer essentially instructed Grier that Jones was the suspect the police wanted him to identify. See Kirkland, 310 Ga. at 740-41(2). See also Davis v. State, 286 Ga. 74, 77(2)(a) (686 SE2d 249) (2009). Moreover, it was for the jury to judge Grier’s credibility and that of the officers involved in the photo lineup. Butler, 276 Ga. App. 15 at 166(3)(a). On this record, we cannot say the trial court abused its discretion in finding that the lineup was not impermissibly suggestive. Thus, this claim of error fails. (c) Coercive measures. Finally, Jones argues that Grier’s identification was unreliable because the police used coercive tactics and pressured Grier to identify him. At trial, Grier testified that the officer who interviewed him threatened to charge him with a crime if he did not identify someone involved in the shooting, so he told police whatever they wanted to hear. Notably, the jury was able to view the police interviews with Grier and could judge his credibility about whether he was coerced. Mitchell v. State, 314 Ga. 566, 573(2)(a) (878 SE2d 208) (2022). Moreover, these recordings do not support Grier’s claim that he was threatened or coerced. See id. (“statements and demeanor in the recording of the interview support the conclusion that [the statement] was not induced by any brutality or deprivation before or during the interview or by any perceived threat of future injury.”) (citation modified). Accordingly, Jones has not shown that the trial court abused its discretion by admitting Grier’s identification. 16 3. Jones further argues that the sentence imposed violates the Eighth Amendment prohibition on cruel and unusual punishment. We disagree. Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. Amend VIII. The legislature’s choice of sentence is insulated from judicial review unless it is wholly irrational or so grossly disproportionate to the severity of the crime that it constitutes cruel and unusual punishment which is prohibited by the Eighth Amendment of the United States Constitution. Courts must defer to the legislature in determinations of sentencing parameters unless a sentence is so overly severe or excessive in proportion to the offense as to shock the conscience. Sosebee v. State, 317 Ga. 424, 430–31(2) (893 SE2d 653) (2023) (citation modified). Thus, we presume a sentence within the statutory limits does not constitute a cruel and unusual punishment. Middleton v. State, 313 Ga. App. 193, 194 (721 SE2d 111) (2011). Here, under OCGA § 16-5-21, the statutory maximum sentence for aggravated assault is 20 years’ imprisonment. OCGA § 16-5-21(c) (July 2015). And, under OCGA § 16-11-106(b), a conviction for possession of a firearm during the commission of a felony requires a consecutive five-year sentence. Thus, the sentences as imposed are 17 within the statutory maximum. Moreover, unless required otherwise by statute, the trial court has discretion to determine if sentence will run concurrently or consecutively. State v. Riggs, 301 Ga. 63, 69-70(2)(a)(799 SE2d 770) (2017). The sentences imposed here, although lengthy, fall within the statutory maximum and the trial court’s discretion to impose consecutive sentences. Miller v. State, 351 Ga. App. 757, 769-70(2)(b)(833 SE2d 142) (2019) (statutory maximum sentences imposed to run consecutively did not violate Eighth Amendment). See also Rooney v. State, 287 Ga. 1, 3-4(3) (690 SE2d 804) (2010). On this record, Jones has not shown how his sentence is improper. 4. Jones also contends that he received ineffective assistance of counsel where trial counsel failed to advise him about First Offender eligibility and failed to request such treatment at sentencing. To succeed on a claim that counsel was constitutionally ineffective, [Jones] must show both that his attorney’s performance was deficient, and that he was prejudiced as a result. Strickland v. Washington, 466 US 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). Under the first prong of this test, counsel’s performance will be found deficient only if it was objectively unreasonable under the circumstances and in light of prevailing professional norms. And under the second prong, prejudice is demonstrated only where there is a reasonable 18 probability that, absent counsel’s errors, the result of the trial would have been different. A “reasonable probability” is defined as a probability sufficient to undermine confidence in the outcome. Failure to satisfy either prong of the Strickland test is sufficient to defeat a claim of ineffective assistance, and it is not incumbent upon this Court to examine the other prong.. And although both the performance and prejudice components of an ineffectiveness inquiry involve mixed questions of law and fact, a trial court’s factual findings made in the course of deciding an ineffective assistance of counsel claim will be affirmed by the reviewing court unless clearly erroneous. Green v. State, 302 Ga. 816, 817–18(2) (809 SE2d 738) (2018) (citation modified). Pretermitting whether counsel’s performance was deficient in failing to advise Jones of possible First Offender sentencing once he was acquitted of murder, Jones cannot establish prejudice. At sentencing, counsel asked for a more lenient sentence that would probate some of the term, and the trial court expressly declined to do so. Thus, Jones cannot show that the outcome would have been different had counsel requested treatment as a First Offender. See Glass v. State, 255 Ga. App. 390, 404(10)(j)(565 SE2d 500) (2002) (counsel’s failure to request first offender status was reasonable strategy, and the sentence imposed demonstrated that counsel’s judgment was correct). 19 5. Finally, Jones contends that the cumulative effect of these errors warrants a new trial. “To establish cumulative error, [Jones] must show that at least two errors were committed in the course of the trial and considered together along with the entire record, the multiple errors so infected the jury’s deliberation that they denied him a fundamentally fair trial.” Huff v. State, 315 Ga. 558, 567-568(6) (883 SE2d 773) (2023) (citation modified). Because we conclude that were no errors during the trial, Jones’s claim of cumulative error is without merit. Heade v. State, 312 Ga. 19, 29(5) (860 SE2d 509) (2021); Henry v. State, 374 Ga. App. 246, 253(2)(c) (911 SE2d 455) (2025). Judgment affirmed. Barnes, P. J., and Hodges, J., concur. 20