FIFTH DIVISION
                               MCFADDEN, P. J.,
                             RAY and RICKMAN, 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.
                               http://www.gaappeals.us/rules


                                                                      June 8, 2018




In the Court of Appeals of Georgia
 A18A0330. BRYANT v. THE STATE.

      MCFADDEN, Presiding Judge.

      After a jury trial, Michael Jerome Bryant was convicted of rape. He appeals the

denial of his motion for new trial, arguing that trial counsel was ineffective, but he

has not met his burden of showing both deficient performance and prejudice. He also

argues that the trial court erred by refusing to admit certain sexually explicit

photographs the victim allegedly sent Bryant, but the trial court’s ruling was within

his discretion. So we affirm.

      1. Facts.

      Viewed in the light most favorable to the verdict, Newsome v. State, 324 Ga.

App. 665 (751 SE2d 474) (2013), the evidence showed that the victim and Bryant had

an on-again, off–again romantic relationship that lasted about two-and-a-half years.
Months after their relationship had ended, Bryant showed up at the victim’s

apartment, surprising her.

      The victim was wearing a house dress, so she went upstairs to change clothes.

Bryant entered her bedroom, uninvited, while she was changing. The victim asked

Bryant to return downstairs, but instead he closed and locked the door. He told the

victim that he wanted to have sex with her. She responded that she was in a

relationship with someone else and did not want to have sex with him. Bryant became

aggressive. He pushed the victim onto the bed, removed her clothing, and had sexual

intercourse with her.

      2. Ineffective assistance of counsel.

      Bryant argues that his trial counsel was constitutionally ineffective in failing

to inform him that he was under no obligation to testify and in failing to object to the

assistant district attorney’s reference to his post-arrest silence. To prevail on this

claim, Bryant

      must show that his trial counsel provided deficient performance and that,
      but for that unprofessional performance, there is a reasonable probability
      that the outcome of the proceeding would have been different. See
      Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SCt 2052, 80
      LE2d 674) (1984). In examining an ineffectiveness claim, a court need
      not address both components of the inquiry if the defendant makes an

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         insufficient showing on one. In particular, a court need not determine
         whether counsel’s performance was deficient before examining the
         prejudice suffered by the defendant as a result of the alleged
         deficiencies.


Jones v. State, 290 Ga. 576, 578 (3) (722 SE2d 853) (2012) (citation and punctuation

omitted).

         (a) Failure to advise Bryant of his right not to testify.

         Bryant argues that trial counsel was ineffective for failing to inform him that

he was not obligated to testify and that the choice to testify was his. Because we

conclude that Bryant has not shown prejudice, we need not decide whether the record

shows that trial counsel performed deficiently by failing to advise Bryant that he did

not have to testify.

         At the motion for new trial hearing, trial counsel testified that the defense

strategy was to show that the victim had consented, so Bryant’s testimony was

essential. Bryant agreed with this defense. Although Bryant testified at the motion for

new trial hearing that he would not have testified had he been informed that the

choice was his, he conceded that he was the only person who could tell his side of the

story.



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      Bryant does not argue that the outcome of the trial would have been different

had he not testified. He “cannot show harm because his testimony at trial provided the

[only testimonial] evidence in support of his defense that [any] sexual contact with

the victim [was consensual]. As such, there is no probability, much less a reasonable

one, that the outcome of [Bryant’s] trial would have differed but for trial counsel’s

alleged error.” Stevens v. State, 329 Ga. App. 91, 93 (b) (762 SE2d 833) (2014). See

also Neal v. State, 308 Ga. App. 551, 554 (4) (b) (707 SE2d 503) (2011) (no

ineffective assistance of counsel because, assuming trial counsel prevented defendant

from testifying when he wanted to, defendant failed to show a reasonable probability

“that the outcome of the trial would have been different had counsel acted

otherwise”).

      (b) Failure to object to question about Bryant’s post-arrest silence.

      Bryant argues that trial counsel was ineffective in failing to object to questions

that he contends improperly commented on his post-arrest silence. Any objection

would have lacked merit, so counsel did not perform deficiently by failing to object.

      The questions Bryant challenges concerned inconsistencies between his trial

testimony and the statement he gave to police, a recording of which was played for

the jury. “It was not improper . . . for the prosecutor to point out inconsistencies and

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omissions in what [Bryant] actually said . . . to the police . . . after the [incident]

compared to what he told the jury at trial. . . . [T]rial counsel was not ineffective in

failing to make a meritless objection.” Hernandez v. State, 299 Ga. 796, 801 (4) (792

SE2d 373) (2016) (citations omitted).

      3. Photographs.

      Bryant argues that the trial court abused his discretion by refusing to allow

Bryant to introduce sexually explicit photographs the victim allegedly sent to Bryant.

Bryant argues that their graphic nature would communicate to the jury that Bryant

could have assumed that the victim consented to have sex with him. See OCGA § 24-

4-412 (b) (trial court may admit evidence relating to complaining witness’ past sexual

behavior if it determines the evidence involved the accused and “supports an

inference that the accused could have reasonably believed that the complaining

witness consented to the conduct complained of in the prosecution”).

      The trial court ruled that Bryant could cross-examine the victim about their

relationship and could question her about texts she allegedly sent him that were

provocative and sexual in nature, but he could not introduce the photographs because

they were “unnecessary to establish the existence or nature of the relationship, and

[were] irrelevant to whether the alleged rape was a consensual act.” “We review the

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trial court’s ruling on the admissibility of evidence for a clear abuse of discretion.”

Ramirez v. State, __ Ga. __, __ (II) (__ SE2d __) (Case No. S17A1662, decided

March 5, 2018) (citation omitted).

      Bryant concedes that the photographs were sent before he and the victim had

ended their relationship, at least ten months before the incident at issue. And it was

undisputed that the parties had a consensual, sexual relationship at that time. So we

cannot say that the trial court clearly abused his discretion by refusing to allow Bryant

to introduce the explicit photographs. Cf. United States v. Burdette, 86 F. Appx. 121,

128-129 (II) (B) (6th Cir. 2004) (trial court did not err under Fed. R. Evid. 403 in

admitting sexually suggestive photographs of defendant in possession of her co-

conspirator because, unlike in this case, defendant testified that their relationship was

not consensual).

      Judgment affirmed. Ray and Rickman, JJ., concur.




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