Andrew Fordham v. State

Citation: Not availableDocket: A19A1575

Court: Court of Appeals of Georgia; October 25, 2019; Georgia; State Appellate Court

Original Court Document: View Document

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Motions for reconsideration must be received in the clerk's office within ten days of the decision to be considered timely. In the case of Fordham v. The State, Andrew Fordham was convicted of two counts of aggravated battery and one count of aggravated assault after a jury trial. He appeals his conviction and the trial court's denial of his motion for new trial, raising three main arguments: (1) denial of his constitutional right to be present at critical stages of the trial; (2) ineffective assistance of counsel due to failure to object to a witness's improper opinion on the case's ultimate issue; and (3) error in the trial court's failure to merge the aggravated battery and aggravated assault convictions for sentencing purposes. After reviewing the record, the Court of Appeals affirms the denial of the new trial motion, finding no deprivation of Fordham's right to be present or ineffective assistance of counsel. However, it vacates his sentence due to the merger of the aggravated battery and aggravated assault counts and remands for re-sentencing. The incident involved Fordham splashing sulfuric acid drain cleaner on his girlfriend, C. S., causing severe chemical burns, resulting in her being placed in a medically-induced coma and undergoing numerous surgeries. Evidence presented included inconsistencies in Fordham's account and physical evidence from the scene that contradicted his claim of an accident. The jury ultimately convicted him based on the severity of the injuries and the circumstances surrounding the incident.

The trial court imposed a sentence of 20 years’ probation on Count 1 to run consecutively with 20 years’ imprisonment on Count 2 and concurrently with 20 years’ imprisonment on Count 3. Fordham filed multiple motions for a new trial, all of which were denied after a hearing, leading to this appeal. Fordham’s first argument on appeal contends that his exclusion from bench conferences during jury selection, where certain jurors were excused for cause, violated his constitutional right to be present at critical stages of the trial. The court found that he acquiesced to his absence since he did not object during the proceedings. While a defendant has a constitutional right to be present during jury selection, this right can be waived either personally or through counsel. A waiver by counsel is binding if made at the defendant’s express direction or in their presence; otherwise, it can be effective through acquiescence, which can occur if the defendant fails to object after being made aware of the proceedings. In this case, Fordham's trial counsel did not object to the jury selection process, indicating that Fordham was aware of and tacitly consented to his absence. 

Fordham's second argument claims he received ineffective assistance of counsel when his attorney did not object to the EMT's testimony, which he alleges improperly influenced the jury. To establish a claim of ineffective assistance, Fordham must demonstrate that his attorney's performance was deficient and that he suffered prejudice as a result. Deficiency is determined by whether the performance was objectively unreasonable under prevailing standards, and prejudice requires showing a reasonable probability that the trial outcome would have been different absent the errors. The court concluded that Fordham failed to meet this burden.

A reasonable probability undermines confidence in a legal outcome. Under the Strickland test for ineffective assistance of counsel, failing to meet either the performance or prejudice prong defeats the claim, with the court not needing to assess the other prong if one is unsatisfied. Factual findings from trial courts in these inquiries are upheld unless clearly erroneous. Fordham's defense was that the incident causing C.S.'s injuries was accidental, claiming his counsel should have objected to an EMT's testimony suggesting otherwise. Georgia law restricts witnesses from offering opinions on ultimate issues to avoid influencing the jury; however, witnesses may share impressions based on their observations. The EMT’s comments indicated his perception of inconsistencies but did not directly assert that the incident was not an accident. Fordham failed to demonstrate that his counsel's inaction on this testimony was deficient since the objection would have been meritless. Counsel explained that he viewed the EMT’s testimony as non-significant and supportive of the defense's accident theory, reflecting a strategic decision. Trial strategy is generally not grounds for ineffective assistance claims unless clearly unreasonable, and Fordham did not prove his counsel's strategy was unreasonable. Consequently, he did not meet the burden to show ineffective assistance. Additionally, Fordham contended that sentencing on multiple aggravated battery counts and an aggravated assault count for a single act was erroneous, with the State agreeing that he should be resentenced, as the doctrine of merger prevents multiple punishments for the same conduct.

Whether offenses merge is determined as a legal question. An accused can be prosecuted for multiple crimes stemming from the same conduct, but cannot be convicted of more than one crime if one crime is included in the other. A crime is included when it is established by the same or fewer facts or a less culpable mental state, or when it requires a lesser injury or risk of injury. The 'required evidence test' helps determine if multiple convictions are precluded based on the proof necessary for each crime.

In Fordham's case, he faced two counts of aggravated battery for harming C.S. by throwing drain cleaner, and one count of aggravated assault for using the drain cleaner as a weapon. The court found sufficient evidence for all three charges but noted that the aggravated battery counts arose from the same act and should merge for sentencing. The aggravated assault, which also stemmed from the same act, differed only in the specifics of injury and should similarly merge with the aggravated battery counts. Consequently, the State acknowledged the need to vacate the sentence on these counts and remand for resentencing. The judgment was affirmed in part, vacated in part, and the case was remanded with directions.