CourtListener 10680392

Full text

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: February 6, 2024

S23A0864. RASHAD V. THE STATE.

MCMILLIAN, Justice.

Appellant Hassan Shareef Rashad was convicted of the malice

murder of two-year-old Adrian Mitchell, Jr. and other crimes.1

1 On June 29, 2018, Rashad was indicted for the malice murder of Adrian

(Count 1); felony murder of Adrian predicated on cruelty to children in the first
degree, aggravated assault, and aggravated battery (Count 2); murder of
Adrian in the second degree (Count 3); aggravated assault upon Adrian (Count
4); aggravated battery upon Adrian (Count 5); cruelty to children in the first
degree against Adrian (Count 6); three counts of cruelty to children in the
second degree against Adrian (Counts 7, 8, and 9); cruelty to children in the
third degree against Adrian’s sister L.D. (Count 10); and driving with a
suspended and revoked license (Count 11). Sydney Dean, Adrian’s mother, was
indicted with Rashad on Counts 3, 8, and 9. Sydney entered a guilty plea to
Count 3 and testified against Rashad at trial, while Counts 8 and 9 against her
were nolle prossed. Counts 3, 7-9, and 11 against Rashad were also nolle
prossed.
On November 16, 2021, Rashad was tried and found guilty on all
remaining counts—Counts 1, 2, 4-6, and 10. On December 2, 2021, he was
sentenced to life in prison without the possibility of parole for malice murder
(Count 1) and twelve months in prison for cruelty to children in the third
degree (Count 10), to be served concurrently. The felony murder count (Count
2) was vacated by operation of law, and Counts 4, 5, and 6 merged into Count
1. On December 2, 2021, Rashad filed a motion for new trial, which he amended
via new counsel on January 11 and February 13, 2023. After a hearing held on
February 14, 2023, the trial court entered an order, dated March 20, 2023,
denying Rashad’s amended motion for new trial. After Rashad filed a notice of
Rashad now appeals, contending that the evidence was insufficient

to sustain his convictions and that his trial counsel provided

constitutionally ineffective assistance. For the reasons that follow,

his claims fail, and so we affirm.

1. Viewed in the light most favorable to the jury’s verdict, the

evidence at trial showed the following.

In the summer of 2017, Rashad entered into a romantic

relationship with Sydney Dean, who had two children from past

relationships, Adrian and L.D. The couple began living together in

September 2017, and after about a month, their relationship started

to deteriorate: Rashad verbally abused Sydney and began isolating

her from her family, starting with her father. Still, Rashad and

Sydney continued living together.

Throughout Sydney and Rashad’s relationship, witnesses

observed concerning details related to Adrian and Rashad. Sydney’s

neighbor noticed bruises and dark marks on Adrian after Rashad

appeal on March 23, 2023, this case was docketed to the August 2023 term of
this Court and submitted for a decision on the briefs.
2
moved in. In separate instances, that neighbor and Sydney’s father,

Daryl Dean, each saw Adrian shaking when he was with Rashad.

Adrian’s sister L.D., who was eight years old at trial, testified that

Rashad would “hang [Adrian] upside down and then start

whoopping [sic] him” even if he had not done anything wrong. And

as Sydney recounted, once in September 2017 after returning home,

where Rashad was with Adrian at the time, she found a broken

wooden back scratcher and saw a “mark” on Adrian’s chest. When

she asked Rashad what happened, Rashad replied that Adrian had

broken the back scratcher by banging it on the floor. As for the mark

on Adrian’s chest, he said Adrian was clumsy.

(a) The October 2017 Leg Injury

On October 8, 2017, Adrian was taken to the hospital, where

doctors concluded that his leg was fractured. The day prior, Adrian

had been playing and running around at home, as Daryl, who had

been with Adrian alone that day for a period of time, testified and

captured on video. At one point, Sydney and Rashad returned home,

and Daryl left. Adrian was walking around “fine” and did not

3
complain of leg pain after Daryl left, as Sydney later testified at

trial. Sydney then left to run errands, leaving Adrian alone at home

with Rashad. When she returned, before entering the house, she

heard Adrian screaming. When she went inside and asked Rashad

why Adrian was “screaming like he [was] dying[,]” Rashad replied

that he was just trying to change Adrian’s diaper. Sydney then took

Adrian with her to do another errand. At this time, she later

recounted at trial, Adrian was “whimpering,” though she could not

tell if anything was wrong with his leg.

After returning home, Sydney noticed that Adrian “was

holding onto the couch . . [and] acting like he couldn’t walk on his

leg.” At another point, she saw Adrian lying “balled on the ground.”

Despite this concerning behavior, she put Adrian in bed that night

and went to sleep. The next morning on October 8, Sydney woke up,

saw Rashad changing Adrian’s diaper, and heard Adrian “hollering”

again. Rashad told Sydney that he thought something was wrong

with Adrian’s leg. Now thinking that Adrian had a sprained ankle,

Sydney took him to the hospital.

4
Doctors who examined and treated Adrian then concluded that

he had a fractured leg. Dr. Garrett Barnes, who was working in the

emergency room that day, testified that Adrian showed a type of leg

fracture that usually requires significant force, such as force from a

high-height fall or a car accident. This fracture, he testified, was

consistent with a fracture caused by an adult holding a child and

slamming him down. Dr. Melissa Davis, a pediatrician who

examined Adrian the next morning, recounted that Adrian had a

severe fracture of his left tibia, which was rarely seen in children

and usually needed very high energy to create, such as energy from

a motor vehicle accident.

Doctors also observed other injuries on Adrian’s body. They

noticed that Adrian had scratches on his neck, which Dr. Davis

noted seemed attributable to fingernails. Dr. Davis also observed

other external injuries and marks, including: a 3.5 centimeter bruise

on one of Adrian’s cheeks; bruising on his chest; circular abrasions

around his nipples that made her wonder if his nipples had been

twisted; and severe bruising in his groin area, which was rare to find

5
in young children, whose bruises often occurred on knees or elbows,

places that could hit the ground if a child fell. Internally, Dr. Davis

found that Adrian had hepatitis (diffuse inflammation of the liver)

that probably resulted from an “acute event.”2

Suspecting abuse, Dr. Davis called the Georgia Division of

Family and Children’s Services (DFCS), which then implemented a

safety plan that temporarily placed Adrian and L.D. under the care

of Sydney’s mother, Joyce Greene, and that permitted only

supervised contact between Sydney and her children while

prohibiting contact between the children and Rashad. 3

In February 2018, the children were returned to Sydney’s

custody. At this point, Sydney still lived with Rashad.

(b) April 2018

After the children were returned to Sydney’s custody, she

2 Sydney gave several explanations for Adrian’s injuries, including that

he was playing with another child, that L.D. potentially stepped on his leg, and
that Sydney rolled on top of him while they were napping on the couch.
However, the doctors did not believe that Adrian’s injuries were consistent
with Sydney’s explanations.
3 No charges for Adrian’s injuries, however, were brought against

Rashad or Sydney at the time.
6
usually worked night shifts in Calhoun from 7:00 p.m. to 7:00 a.m.,

while Rashad worked in Cartersville from about 7:00 or 7:30 a.m. to

4:00 or 5:00 p.m. Sydney would usually return from work at about

7:40 a.m., and Rashad would usually leave for work at around 7:00

a.m. For a period of time, Sydney’s sister would watch the children

between when Rashad left for work and when Sydney got home. A

few weeks before Adrian’s death in April, however, Sydney asked

her sister to stop watching the children, because Sydney did not

want her sister to get “cussed out” by Rashad. After that, Adrian and

L.D. were left alone from the time Rashad left for work until the

time Sydney returned home.

(i) April 12, 2018

On the morning of April 12, Sydney, taking Adrian with her,

dropped L.D. off at school and then ran errands with Adrian. After

Sydney and Adrian returned home, she cleaned the house and he

ran around. At one point, Adrian knocked a TV onto himself. Sydney

picked him up, and after he “wiggl[ed] to get back down,” she set him

down and he continued to play.

7
Later that day, Sydney took Adrian to a bank to get a money

order. Security footage and photos from the bank on April 12 at

around 1:30 p.m. captured Adrian looking around, playing with a

toy, and reaching for and kissing Sydney, who smiled and laughed.

Following the bank trip, Sydney took Adrian with her to pick up L.D.

from school at around 2:30 to 2:45 p.m. A teacher at L.D.’s school,

who saw Adrian in the car when Sydney came to pick up L.D.,

testified that Adrian appeared then “like he did every day when

[she] spoke to him.”

Sydney returned home with both children at about 3:00 p.m.,

fed them at about 4:30 p.m., bathed them, and then left for work at

about 6:15 p.m. for her twelve-hour shift, which began at 7:00 p.m.4

Rashad returned home at some point between Sydney feeding the

children and her leaving for work. When Sydney got her first break

from work that night at around 9:00 or 10:00 p.m., she and Rashad

4 A supervisor at Sydney’s workplace for the shift from 7:00 p.m. to 7:00

a.m. on April 12 to 13, 2018, testified that Sydney worked that shift and that
she saw Sydney several times. Electronic timecards also showed that Sydney
checked into work at about 6:50 p.m. on April 12 and clocked out at about 7:00
a.m. on April 13.
8
spoke on the phone for about an hour. In that call, Sydney did not

receive any indication from Rashad that anything was wrong with

Adrian.

(ii) April 13, 2018

At about 2:30 a.m., Sydney received a text from Rashad asking

her how hard Adrian had hit himself and telling her that Adrian had

a mark on his head. Sydney returned to work, since at the time she

“just didn’t think it was . . . serious.” Rashad then sent her a photo

of Adrian’s head with red marks on it that Sydney had not seen

before she left for work. At about 3:00 a.m., Sydney texted that it

was hard for her to concentrate at work.

Early in the morning at about 6:00 a.m., after Sydney texted

Rashad to ask if he was up, he texted: “I hope this boy is okay [ ]b/c

he acted like his [sic] is so sleepy.” Sydney texted back that she was

worried about Adrian. At about 6:50 a.m., as she was getting off

work, she and Rashad spoke on the phone, and Rashad told her that

Adrian had a seizure. In that call, Rashad also told Sydney that

Adrian was okay before he left for work and that he had stuck a

9
spoon in Adrian’s mouth to keep his teeth from “chittering,” causing

a mark on his mouth.

Once Sydney got home, she picked up Adrian, but he would not

wake up. At 8:03 a.m., Sydney called 911, reporting that Adrian had

a seizure the night before.5 Adrian was taken to Floyd Medical

Center emergency department at 8:18 a.m. After about two hours

there, Adrian was flown to Children’s Healthcare of Atlanta.

Numerous medical personnel testified about their observations

of Adrian on April 13. Nathaniel Rench, a paramedic who picked up

Adrian that morning, recalled that Adrian seemed “lifeless” when

Sydney handed him over, that Adrian had bruises “pretty much

everywhere”—his face, body, limbs, genitals, legs, arms—and that

the bruises seemed to be in different stages of healing. Additionally,

Adrian’s left pupil was swelling and was bigger than his right, which

indicated to Rench that Adrian likely had a brain injury.

5 Before calling 911, Sydney called her friend Janelle, who advised her

to call 911. She also had a call at 7:53 a.m. with Rashad, in which she asked
what happened; Rashad said Adrian was okay before he left. Rashad and
Sydney discussed calling 911, and at one point agreed they needed to call 911.
10
Dr. Cline Jackson, an emergency department doctor who

treated Adrian on April 13, testified that: Adrian showed significant

evidence of head trauma and life-threatening injury; he had bruises

on his scalp, abdominal areas, his back, and the base of his penis; he

had bruises on his shoulder blade, chest, and trunk, which seemed

odd since children usually do not bruise these areas upon falling but

instead have injuries in places where they catch themselves; his

bruises were of “different ages,” which indicated that Adrian had

previous unreported injuries; and he had a low alertness and

neurological function score. CT results also showed that Adrian had

a fractured left seventh rib, which, Dr. Jackson testified, usually

requires “a lot of trauma” to fracture, as children’s ribs “are more

cartilaginous” and harder to break than those of adults. Based in

part on the different ages and locations of Adrian’s bruises, and

“[t]he fact that there was a previous visit or concern for non-

accidental trauma,” Dr. Jackson suspected abuse.

Dr. Jason Harrison, a neurosurgeon, also evaluated Adrian on

the morning of April 13. Dr. Harrison testified that imaging revealed

11
that large areas of the brain had not received blood for some time,

which suggested to him that Adrian had suffered an injury multiple

hours prior to his evaluation rather than within the last hour. Based

on the swelling that Dr. Harrison observed on Adrian’s brain, he

suspected that Adrian had suffered “significant brain trauma” that

caused unconsciousness.

Later at trial, both Dr. Jackson and Dr. Harrison testified that

Adrian’s injuries did not appear to be caused by a TV falling on him.

Dr. Jackson explained that a TV falling on Adrian’s face likely would

not have caused the injuries he had, given the kind of “intracranial

hemorrhaging” that Adrian showed, and because the TV at Sydney’s

home appeared “a lot lighter” than other TVs and the “face is a really

good shock absorber for the brain.” Moreover, Dr. Jackson and Dr.

Harrison indicated that the injuries that Adrian incurred were such

that their symptoms would likely have shown up immediately or

within two to four hours after the injury. A child with Adrian’s

injuries would likely not be alert and playing with toys right after

the injury occurred, Dr. Harrison testified.

12
At 9:01 a.m., about 40 minutes after Adrian entered the

emergency department, Rashad texted Sydney: “What did you tell

them what happen???” She replied: “Tv fell on him and symptoms

showed around 2:30. But didn’t think much bc he woke up and he

went to bed where I woke him up this morning and I got no

response[.]” Rashad then texted Sydney to ask if she “[told] them

about the seizure[.]” Rashad soon arrived at the hospital: at about

9:40 a.m., he texted Sydney that he was “[i]n the front” and he “told

them [he] was the daddy.”

While Sydney and Adrian were at the hospital’s emergency

department, Floyd County police officer Ojilvia Lom interviewed

Sydney. In this interview, Sydney recounted that on April 12 at

about 1:00 p.m., she heard a TV fall and found it on top of Adrian,

who was against the rail of his sister’s bed, but that he seemed fine

that afternoon and evening. Sydney told Officer Lom that she was

off work and at home with Rashad on the night of April 12.

After this interview, Officer Lom interviewed Sydney again,

13
this time at Sydney’s home with Rashad present. Sydney

maintained that she found a TV on Adrian’s face and his neck

against the bed on April 12. She stated again that she was off work

the night of April 12. Rashad did not correct this statement, and

also, told Officer Lom that on the morning of April 13, he was in

Atlanta.

Later that day, Sydney went to the police station, where she

was interviewed again and decided she “couldn’t lie no more.” She

explained that the TV fell on Adrian sometime on April 12 after

running errands with him in the morning and before picking up L.D.

from school, but that Adrian seemed normal after she picked the TV

up. In this interview, however, Sydney revealed that she was

actually working and not at home on the night of April 12 to 13.6

On April 13, 2018, law enforcement also interviewed L.D., who

was five years old at the time. L.D. recounted that Rashad was at

home the night of April 12 to 13, and that Adrian was crying that

6 As Sydney explained, she had initially lied about being home the night

of April 12 because she did not want to “lose [her] kids” and she was influenced
by Rashad.
14
night because Rashad “whooped him very hard.”

(d) Further Medical Treatment and Examination

After Adrian was flown to Children’s Healthcare of Atlanta, he

underwent surgery to relieve pressure on his brain, but he died on

April 15, 2018. Dr. Bryant, a child abuse pediatrics specialist who

saw Adrian at Children’s Healthcare from April 13 to 15, believed

that his injuries resulted from non-accidental trauma. No single

impact besides something like a high-height fall or car accident

would have explained Adrian’s injuries, Dr. Bryant testified: Adrian

likely received multiple blunt traumas, or “some sort of force being

applied to his body.” Adrian not only had areas of bleeding and

swelling in his brain, but also a liver laceration and healing

fractures in multiple bones, including, as Dr. Bryant had observed

in other abused children, bones near his wrist. It would take a “very

significant amount” of force to lacerate a two-year old’s liver, Dr.

Bryant testified, and she would not expect a laceration to be caused

by a child “playing with someone or . . . another child.” And, she

explained, children with the kind of brain injury that Adrian had,

15
likely would not “be happy and playful, walking around acting like

their normal self for a significant period of time” after incurring the

injury.

Externally, she observed bruises on Adrian’s abdomen,

scrotum, left buttock, base of his neck, top and middle of his chest,

as well as an abrasion on the underside of his penis. Dr. Bryant

suspected abuse, in part because she usually saw bruises in areas

that children injured in play, such as chins, shins, or areas with

bones right underneath the skin—not “areas that are covered” such

as the scrotum, buttocks, or penis.

After Adrian died, Dr. Lora Darrisaw, a medical examiner at

the Georgia Bureau of Investigation, performed an autopsy on him.

Dr. Darrisaw identified a red mark on the inner surface of his right

ear, which she found significant since ears “are protected areas that

don’t often get injured in accidental-type events.” She also found a

few injuries inside his mouth and on his inner left cheek, which she

testified were likely not the result of intubation from hospital

treatment. Internally, she found that he had a liver laceration and

16
tears in blood vessels supporting his small intestines, which she

thought were likely the result of significant trauma. Trauma also

likely caused Adrian’s other injuries, including: skull fracture

indicating “something hit the head”; hemorrhages in soft tissues

around Adrian’s left kidney and testicle area, indicating abdominal

trauma; bleeding under the dura (membrane-like material covering

the brain), which she said was caused by severe trauma rather than

surgery meant to treat the subdural bleeding; bleeding around the

tissues in the back of the eye, suggesting severe trauma to the head;

and bleeding in the tissue underneath Adrian’s buttocks, suggesting

that they had suffered impact.

Based on her examination, Dr. Darrisaw concluded that Adrian

died from “traumatic injuries of the head and torso” that “appeared

to be non-accidental” and classified his death as a homicide. She did

not expect “simply jumping on a bed and falling off or [the] TV” to

cause the injuries she found and this was in part why she concluded

the death was a homicide.

2. Rashad contends that the trial court erred in denying his

17
motion for a directed verdict because the evidence was insufficient

to sustain his convictions as a matter of constitutional due process

and under Georgia’s circumstantial evidence statute, OCGA § 24-

14-6. “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.” Jones v. State, 317 Ga. 466,

469 (1) (b) (893 SE2d 741) (2023) (citation and punctuation omitted).

And when we review the sufficiency of the evidence as a matter of

constitutional due process, we view the evidence presented at trial

“in the light most favorable to the verdicts” and ask “whether any

rational trier of fact could have found the defendant guilty beyond a

reasonable doubt of the crimes of which he was convicted.”

Henderson v. State, 317 Ga. 66, 72 (2) (891 SE2d 884) (2023). See

Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61

LE2d 560) (1979). “Under this review, we must put aside any

questions about conflicting evidence, the credibility of witnesses, or

the weight of the evidence, leaving the resolution of such things to

the discretion of the trier of fact.” Frazier v. State, 308 Ga. 450, 452-

18
453 (2) (a) (841 SE2d 692) (2020) (citation and punctuation omitted).

Under Georgia statutory law, a conviction may rest solely on

circumstantial evidence if that evidence “exclude[s] every other

reasonable hypothesis save that of the guilt of the accused.” OCGA

§ 24-14-6. See Willis v. State, 315 Ga. 19, 23 (2) (880 SE2d 158)

(2022). “[N]ot every hypothesis is a reasonable one,” however, “and

the evidence need not exclude every conceivable inference or

hypothesis—only those that are reasonable.” Graves v. State, 306

Ga. 485, 487 (1) (831 SE2d 747) (2019) (citation and punctuation

omitted; emphasis in original). “[W]hether any alternative

hypotheses are reasonable and whether the circumstantial evidence

excludes any such hypotheses” are questions “for the jury” and “we

will not disturb the jury’s findings on those questions unless they

are insupportable as a matter of law.” Willis, 315 Ga. at 24 (2)

(citation and punctuation omitted).

Here, the evidence was sufficient as a matter of constitutional

due process to authorize a jury to find Rashad guilty beyond a

19
reasonable doubt of the malice murder of Adrian.7 The testimony of

multiple doctors indicated that Adrian’s fatal injuries were the

result of non-accidental, significant force generated by multiple

blows. And evidence strongly indicated that these injuries were

inflicted on the night of April 12 to 13, 2018 when only Rashad—not

Sydney, who was working on night shift—was at home with Adrian

and L.D. Before that night, Adrian appeared alert and conscious:

Security footage and photos showed him playing with a toy and

kissing Sydney at around 1:30 p.m. on April 12; he appeared “like

he did every day” to L.D.’s teacher around 2:30 to 2:45 p.m.; he was

conscious and eating at around 4:30 p.m.; and Rashad did not

7 Although Rashad purports to challenge the sufficiency of the evidence

for each of his convictions except “Count 12,” we evaluate the sufficiency of
evidence only for Count 1 (malice murder). We do not review sufficiency for
Counts 2, 4, 5, and 6 because those counts were either vacated by operation of
law or merged. See Anderson v. State, 299 Ga. 193, 196 n.4 (1) (787 SE2d 202)
(2016) (defendant’s claims about sufficiency of evidence were moot for crimes
that were vacated by operation of law or that merged with murder). Rashad
states that he “does not contest the sufficiency of the evidence on Count 12,
Cruelty to Children in the Third Degree.” But Rashad’s reference to Count 12
in his appellate briefing appears to be a scrivener’s error because Rashad was
actually convicted and sentenced only on Count 10 for cruelty to children in
the third degree, so we also do not review the sufficiency of the evidence on
Count 10.
20
indicate anything was wrong with him when Sydney and Rashad

spoke on the phone at around 9:00 or 10:00 p.m. But on the morning

of April 13, Adrian was unconscious, had bruises “pretty much

everywhere,” and showed significant evidence of head trauma and

life-threatening injury. As doctors testified, he was likely injured

immediately or two to four hours before the symptoms of his injuries

appeared, and several hours prior to being evaluated on the morning

of April 13. Then-five-year-old L.D. recounted that Adrian was

crying that night because Rashad “whooped him very hard.” And

evidence suggested that Rashad had physically hurt Adrian in the

past by bruising him and by fracturing his leg in October 2017.

Based on all the evidence presented, the jury was authorized to

conclude beyond a reasonable doubt that Rashad caused Adrian’s

death by beating him on the night of April 12 to 13, 2018. See

Johnson v. State, 316 Ga. 672, 680 (2) (a) (889 SE2d 914) (2023)

(evidence showing that victim suffered “non-accidental blunt force

injuries during a time when [defendant] was the only person present

and capable of inflicting such injuries” was “sufficient as a matter of

21
constitutional due process to support [defendant’s] convictions for

felony murder and cruelty to children in the first degree”).

The evidence was also sufficient under OCGA § 24-14-6.

Assuming without deciding that the evidence in this case was solely

circumstantial and not direct,8 the evidence authorized the jury to

reject Rashad’s alternate hypothesis that Adrian’s fatal injuries

resulted from a TV falling on his face causing his head to collide with

a bedrail. Several experts testified that Adrian’s injuries were non-

accidental and that they did not expect those injuries to be caused

by a TV falling on him. Dr. Darrisaw concluded that Adrian’s death

resulted from homicide. Moreover, as Doctors Jackson, Harrison,

and Bryant indicated, the symptoms of Adrian’s injuries probably

appeared immediately or within two to four hours after the injuries

occurred, thus suggesting that if a falling TV and hitting the bedrail

caused Adrian’s injuries, symptoms would have appeared

immediately after the TV fell or on the afternoon of April 12. Yet

8 See Garay v. State, 314 Ga. 16, 20 (2) (875 SE2d 631) (2022) (“if there

is any direct evidence presented by the State, the circumstantial evidence
statute does not apply to a sufficiency analysis”).
22
evidence showed that Adrian was conscious, breathing, eating, and

playing after the incident with the TV. Thus, the evidence was

sufficient for the jury to reject as unreasonable the hypothesis that

Adrian’s death was caused by a falling TV.

3. Rashad next argues that his trial counsel provided

constitutionally ineffective assistance. To prevail on a claim of

ineffective assistance of counsel, a defendant must show that his

counsel’s performance was deficient and that the deficient

performance prejudiced the defendant. See Strickland v.

Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)

(1984). To show deficiency, a defendant must show that his attorney

“performed his duties in an objectively unreasonable way,

considering all the circumstances and in the light of prevailing

professional norms, which is no easy showing, as the law recognizes

a strong presumption that counsel performed reasonably.” Scott v.

State, 317 Ga. 218, 221 (2) (892 SE2d 744) (2023) (citation and

punctuation omitted). To show prejudice, a defendant “must

establish a reasonable probability that, in the absence of counsel’s

23
deficient performance, the result of the trial would have been

different.” Moulder v. State, 317 Ga. 43, 47 (3) (891 SE2d 903) (2023).

“If a defendant fails to make a sufficient showing on one part of the

Strickland test, we need not address the other part.” Scott, 317 Ga.

at 222 (2).

(a) Rashad first argues that his trial counsel provided

ineffective assistance by failing to renew his objections to autopsy

photos admitted during trial—specifically, the photos in the State’s

Exhibits 34-37, 40-45, and 61-62. Before trial, Rashad’s trial counsel

filed a motion in limine seeking to exclude various autopsy photos

and photos that he claimed were gruesome and would inflame the

jury. At a pretrial hearing, trial counsel stated that he sought to

restrict the State’s use of the autopsy photos to only those necessary

to show Adrian’s injuries. The trial court deferred ruling on the

motion in limine at that time, but after conducting a hearing during

the trial on the admissibility of autopsy photos including those in

the State’s Exhibits 34-37, 40-45, and 61-62, the trial court ruled

that all the autopsy photos in these exhibits were admissible. These

24
autopsy photos were subsequently admitted without further

objection from trial counsel.

Rashad contends that his trial counsel provided ineffective

assistance by failing to renew his objection to these autopsy photos,

because the trial court “erred” in admitting these photos and his

trial counsel waived that error for review by failing to renew his

objections. 9 Pretermitting whether the trial court abused its

discretion in admitting the photos, we conclude that Rashad need

not have renewed his objection to preserve the issue for appeal.

“Once the court makes a definitive ruling on the record admitting or

excluding any evidence, either at or before trial, a party need not

renew an objection or offer of proof to preserve such claim of error

for appeal.” OCGA § 24-1-103. See Anthony v. State, 298 Ga. 827,

9 Also, in connection with his ineffective assistance claims, Rashad
asserts that the trial court “erred and abused its discretion in admitting State’s
Exhibit 32,” a photo of Adrian undergoing emergency treatment on April 13,
2018. But this assertion fails as part of Rashad’s ineffective assistance claim
because that claim hinges on trial counsel’s failure to renew his objection to
autopsy photos, and here trial counsel objected to Exhibit 32 immediately
before it was admitted during trial. And, insofar as Rashad makes this
assertion of trial court error separate from his ineffective assistance claim, we
deem that enumeration abandoned, because Rashad provides no argument or
citation of authority to support it. See former Supreme Court Rule 22 (2023).
25
831-32 (4) (785 SE2d 277) (2016). Here, after Rashad’s trial counsel

moved in limine and asked in a pretrial hearing for the trial court to

exclude unnecessary autopsy photos, and after the trial court

conducted a hearing on the admissibility of the autopsy photos now

listed in Rashad’s appellate enumeration, the trial court definitively

ruled that those photos were admissible, and they were later

admitted at trial. Thus, trial counsel did not need to renew his

objection to these photos to preserve the issue for appeal, and the

failure to renew the objection did not constitute deficient

performance.10 See Anthony, 298 Ga. at 831-32 (4).

(b) Second, Rashad contends that his trial counsel gave

ineffective assistance by failing to object or move for a curative

instruction or mistrial after Sydney referenced Rashad’s previous

time in jail. When the State asked on direct about she and Rashad

10 Because Rashad’s assertion that the trial court erred in admitting
various autopsy photos is solely a part of his ineffective assistance claim and
he does not assert a separate claim of trial court error, and because we have
resolved that ineffective assistance claim by explaining that Rashad's trial
counsel did not need to renew his objection to preserve the issue for appeal, we
need not address whether the trial court actually erred or abused its discretion
in admitting the autopsy photos listed in Rashad’s appellate brief.
26
organized their finances, Sydney testified: “It was split. [Rashad]

felt like since he moved up here from Atlanta, I should be paying

that, and he should be getting on his feet since he just got out of jail.”

Rashad contends that his trial counsel performed deficiently by

allowing this testimony, which Rashad characterized as “evidence of

his bad character,” to be heard by the jury even though the State

had not given prior notice and the trial court had not decided

admissibility under OCGA §§ 24-4-404 (b) (“Rule 404 (b)”) and 24-4-

403.

Pretermitting whether this testimony constituted other acts

evidence under Rule 404 (b), we conclude that Rashad has not shown

that his trial counsel “performed his duties in an objectively

unreasonable way” by failing to object or to move for a curative

instruction or mistrial. See Scott, 317 Ga. at 221 (2) (citation and

punctuation omitted). Sydney’s reference to Rashad’s previous stint

in jail was fleeting: She did not refer to why Rashad had been in jail,

and after she made the jail reference, the State did not inquire into

it any further. In this context, the reference likely had little

27
prejudicial effect on the jury, and raising an objection could have

drawn further attention to the matter. As trial counsel testified, he

did not seek a mistrial because he “really did not believe that” he

had “adequate grounds” for one, and he did not object or seek a

curative instruction because doing so would have drawn further

attention from the jury to a comment “said in passing.” These

choices—at least some of which counsel himself indicated were “trial

strategy” decisions—were not objectively unreasonable so as to

constitute deficient performance. See Blackshear v. State, 309 Ga.

479, 486 (3) (847 SE2d 317) (2020) (“Trial tactics and strategy are

almost never adequate grounds for finding trial counsel ineffective

unless they are so patently unreasonable that no competent

attorney would have chosen them.” (citation and punctuation

omitted)); Brewer v. State, 301 Ga. 819, 820 (2), 821 (3) (804 SE2d

410) (2017) (trial counsel’s “strategic decision” to decline a curative

instruction so as “not to draw the jury’s attention” to a witness’s

allegedly improper character testimony about using “jail booking

information to locate” defendant, was “within the wide latitude of

28
presumptively reasonable professional conduct” (citation and

punctuation omitted)).

ineffective assistance by failing to object or to move for a mistrial or

curative instruction after Sydney’s father Daryl testified about

threats from Rashad at Daryl’s workplace.

Daryl testified on redirect that he and Rashad had worked at

the same location at one point; that after Adrian suffered a leg

fracture in October 2017, Daryl told his workplace human resources

department that he thought Rashad caused Adrian’s leg injury so it

would be best if Rashad were kept away from Daryl; and that

Rashad almost hit him on three occasions with a piece of machinery

used to unload trucks and said the words “dead man walking” to

him.

Assuming, without deciding, that trial counsel performed

deficiently by not objecting to Daryl’s statements and that an

objection would have led to the exclusion of the evidence, we

conclude that Rashad has not shown a “reasonable probability that,

29
but for” this failure, “the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694 (III) (B). See also Moulder,

317 Ga. at 47 (3). As we showed in Division 2, the evidence of

Rashad’s guilt is very strong. In addition, Daryl’s challenged

statements stemmed from the properly admitted evidence that

Rashad had broken Adrian’s leg and caused other injuries which led

to a DFCS investigation and the removal of the children from the

home with orders that Rashad have no contact with them. That

Daryl, as the children’s grandfather, disliked Rashad as a result,

and that Rashad acted out against Daryl was only marginally

relevant, if at all, to the prosecution for Adrian’s murder, and thus,

had minimal probative value on the issue of whether Rashad

committed Adrian’s murder, making it unlikely to have caused a

difference in the outcome of the trial. See Olds v. State, 299 Ga. 65,

75 (2) (786 SE2d 633) (2016) (“the probative value of evidence

derives in large part from the extent to which the evidence tends to

make the existence of a fact more or less probable” (emphasis in

original)). Likewise, the evidence of Rashad’s conduct towards Daryl

30
was not particularly prejudicial when viewed in context given that

Rashad did not physically harm Daryl in these interactions and it

was understandable that the two men did not like one another.

Accordingly, in light of the strong evidence of Rashad’s guilt,

we conclude that Rashad has failed to show a reasonable probability

that, but for the alleged errors related to Daryl’s testimony, the

outcome of the trial would have been different. See Naples v. State,

308 Ga. 43, 54 (3) (a) (838 SE2d 780) (2020) (testimony that relatives

of the child victim did not like the appellant, among other things,

was not “particularly disparaging of [the appellant’s] character

when viewed in context, especially given the strength of the other

admissible evidence against him”); Toomer v. State, 292 Ga. 49, 58-

59 (4) (734 SE2d 333) (2012) (no prejudice from failure to object to

bad character evidence, where such evidence was “buried in four

long interview videotapes that were played during the testimony of

three different witnesses” and where “the evidence of Appellant’s

guilt was strong”). Thus, Rashad has not shown prejudice, and his

claim of ineffective assistance on this ground fails.

31
(d) Rashad also asserts that his trial counsel provided

ineffective assistance by failing to object or to move for a curative

instruction or mistrial after Sydney testified that Rashad

threatened her father at his and Rashad’s shared workplace. On

direct, after Sydney spoke about Rashad’s threats against her and

Daryl—including Rashad’s comment to her that he “watched [her]

daddy go home”—the State asked: “Did [Rashad] make any other

threats towards your dad?” Sydney responded: “I guess when they

was working together.”

Rashad argues that his trial counsel performed deficiently by

failing to object or to move for a curative instruction or mistrial after

this response. But at the motion for new trial hearing, trial counsel

was not asked why he did not immediately object to or otherwise

challenge Sydney’s testimony on Rashad’s workplace threats

against Daryl, and “in the absence of evidence to the contrary,

counsel’s decisions are presumed to be strategic and thus

insufficient to support an ineffective assistance of counsel claim.”

Tabor v. State, 315 Ga. 240, 244 (1) (882 SE2d 329) (2022) (citation

32
and punctuation omitted). In addition, that Rashad threatened

Sydney’s father was cumulative of earlier unchallenged testimony

from Sydney that Rashad had threatened her father and others in

her family. Under these circumstances, we conclude that Rashad

has failed to carry his burden of showing that trial counsel’s failure

to object to Sydney’s testimony was objectively unreasonable so as

to constitute deficient performance. See Blackshear, 309 Ga. at 486

(3); Snipes v. State, 309 Ga. 785, 794 (3) (b) (iv) (848 SE2d 785) (2020)

(counsel not deficient in failing to object to allegedly improper

character evidence that was “largely cumulative of other admissible

testimony”); Sawyer v. State, 308 Ga. 375, 384 (2) (b) (839 SE2d 582)

(2020) (trial counsel not deficient in failing to object to cumulative

testimony).

(e) Rashad finally asserts that counsel rendered ineffective

assistance by failing to object or to move for a mistrial or for curative

instructions to testimony by Greene that he characterizes as bad

character evidence. Greene, when asked on direct whether Sydney

seemed to “work” her DFCS case plan, replied: “No, because I think

33
[Rashad] was still around. He was still around.” At the motion for

new trial hearing, counsel testified that he did not object to this

testimony because he did not think that the testimony was

objectionable other than perhaps on the basis that it was speculative

and, in any event, the challenged statement was brief.

We conclude that counsel was not deficient in failing to object

to this testimony. Greene’s challenged comment was fleeting and

cumulative of other properly admitted evidence, including a former

DFCS employee’s testimony that Sydney did not comply with the

DFCS plan by failing to be “forthcoming about incidents,” as well as

evidence indicating that Sydney had lied to law enforcement in the

past due to Rashad’s influence and that she and Rashad continued

to live together after the start of the plan. It would not be objectively

unreasonable for trial counsel, as a matter of trial strategy, to

refrain from objecting to this testimony so as not to draw attention

to it, particularly in light of other evidence from which the jury could

have inferred that Sydney did not comply with the DFCS plan

because Rashad was still around. See Blackshear, 309 Ga. at 486 (3);

34
Brewer, 301 Ga. at 821 (3). This claim for ineffective assistance also

fails. 11

Judgment affirmed. All the Justices concur, except Warren, J.,

who concurs in judgment only in Division 3 (c).

11 Finally, to the extent that Rashad claims he was deprived of a fair trial

due to the cumulative prejudice resulting from his trial counsel’s errors, see
Scott, 317 Ga. at 751 (3) n.5 (referencing Schofield v. Holsey, 281 Ga. 809, 811
(II) n.1 (642 SE2d 56) (2007)), we need not address this claim because “we have
assumed deficiency in only one instance” and Rashad “has failed to establish
any other instance of deficiency.” See Scott, 317 Ga. at 751 (3).
35

318 Ga. 199
FINAL COPY

S23A0864. RASHAD v. THE STATE.

MCMILLIAN, Justice.

Appellant Hassan Shareef Rashad was convicted of the malice

murder of two-year-old Adrian Mitchell, Jr., and other crimes.1

1 On June 29, 2018, Rashad was indicted for the malice murder of Adrian

(Count 1); felony murder of Adrian predicated on cruelty to children in the first
degree, aggravated assault, and aggravated battery (Count 2); murder of
Adrian in the second degree (Count 3); aggravated assault upon Adrian (Count
4); aggravated battery upon Adrian (Count 5); cruelty to children in the first
degree against Adrian (Count 6); three counts of cruelty to children in the
second degree against Adrian (Counts 7, 8, and 9); cruelty to children in the
third degree against Adrian’s sister L. D. (Count 10); and driving with a
suspended and revoked license (Count 11). Sydney Dean, Adrian’s mother, was
indicted with Rashad on Counts 3, 8, and 9. Sydney entered a guilty plea to
Count 3 and testified against Rashad at trial, while Counts 8 and 9 against her
were nolle prossed. Counts 3, 7-9, and 11 against Rashad were also nolle
prossed.
On November 16, 2021, Rashad was tried and found guilty on all
remaining counts—Counts 1, 2, 4-6, and 10. On December 2, 2021, he was
sentenced to life in prison without the possibility of parole for malice murder
(Count 1) and 12 months in prison for cruelty to children in the third degree
(Count 10), to be served concurrently. The felony murder count (Count 2) was
vacated by operation of law, and Counts 4, 5, and 6 merged into Count 1. On
December 2, 2021, Rashad filed a motion for new trial, which he amended via
new counsel on January 11 and February 13, 2023. After a hearing held on
February 14, 2023, the trial court entered an order, dated March 20, 2023,
denying Rashad’s amended motion for new trial. After Rashad filed a notice of
appeal on March 23, 2023, this case was docketed to the August 2023 term of
this Court and submitted for a decision on the briefs.
Rashad now appeals, contending that the evidence was insufficient

to sustain his convictions and that his trial counsel provided

constitutionally ineffective assistance. For the reasons that follow,

his claims fail, and so we affirm.

1. Viewed in the light most favorable to the jury’s verdict, the

evidence at trial showed the following.

In the summer of 2017, Rashad entered into a romantic

relationship with Sydney Dean, who had two children from past

relationships, Adrian and L. D. The couple began living together in

September 2017, and after about a month, their relationship started

to deteriorate: Rashad verbally abused Sydney and began isolating

her from her family, starting with her father. Still, Rashad and

Sydney continued living together.

Throughout Sydney and Rashad’s relationship, witnesses

observed concerning details related to Adrian and Rashad. Sydney’s

neighbor noticed bruises and dark marks on Adrian after Rashad

moved in. In separate instances, that neighbor and Sydney’s father,

Daryl Dean, each saw Adrian shaking when he was with Rashad.

2
Adrian’s sister L. D., who was eight years old at trial, testified that

Rashad would “hang [Adrian] upside down and then start

whoopping [sic] him” even if he had not done anything wrong. And

as Sydney recounted, once in September 2017 after returning home,

where Rashad was with Adrian at the time, she found a broken

wooden back scratcher and saw a “mark” on Adrian’s chest. When

she asked Rashad what happened, Rashad replied that Adrian had

broken the back scratcher by banging it on the floor. As for the mark

on Adrian’s chest, he said Adrian was clumsy.

(a) The October 2017 Leg Injury

On October 8, 2017, Adrian was taken to the hospital, where

doctors concluded that his leg was fractured. The day prior, Adrian

had been playing and running around at home, as Daryl, who had

been with Adrian alone that day for a period of time, testified and

captured on video. At one point, Sydney and Rashad returned home,

and Daryl left. Adrian was walking around “fine” and did not

complain of leg pain after Daryl left, as Sydney later testified at

trial. Sydney then left to run errands, leaving Adrian alone at home

3
with Rashad. When she returned, before entering the house, she

heard Adrian screaming. When she went inside and asked Rashad

why Adrian was “screaming like he [was] dying[,]” Rashad replied

that he was just trying to change Adrian’s diaper. Sydney then took

Adrian with her to do another errand. At this time, she later

recounted at trial, Adrian was “whimpering,” though she could not

tell if anything was wrong with his leg.

After returning home, Sydney noticed that Adrian “was

holding onto the couch . . . [and] acting like he couldn’t walk on his

leg.” At another point, she saw Adrian lying “balled on the ground.”

Despite this concerning behavior, she put Adrian in bed that night

and went to sleep. The next morning on October 8, Sydney woke up,

saw Rashad changing Adrian’s diaper, and heard Adrian “hollering”

again. Rashad told Sydney that he thought something was wrong

with Adrian’s leg. Now thinking that Adrian had a sprained ankle,

Sydney took him to the hospital.

Doctors who examined and treated Adrian then concluded that

he had a fractured leg. Dr. Garrett Barnes, who was working in the

4
emergency room that day, testified that Adrian showed a type of leg

fracture that usually requires significant force, such as force from a

high-height fall or a car accident. This fracture, he testified, was

consistent with a fracture caused by an adult holding a child and

slamming him down. Dr. Melissa Davis, a pediatrician who

examined Adrian the next morning, recounted that Adrian had a

severe fracture of his left tibia, which was rarely seen in children

and usually needed very high energy to create, such as energy from

a motor vehicle accident.

Doctors also observed other injuries on Adrian’s body. They

noticed that Adrian had scratches on his neck, which Dr. Davis

noted seemed attributable to fingernails. Dr. Davis also observed

other external injuries and marks, including: a 3.5-centimeter

bruise on one of Adrian’s cheeks; bruising on his chest; circular

abrasions around his nipples that made her wonder if his nipples

had been twisted; and severe bruising in his groin area, which was

rare to find in young children, whose bruises often occurred on knees

or elbows, places that could hit the ground if a child fell. Internally,

5
Dr. Davis found that Adrian had hepatitis (diffuse inflammation of

the liver) that probably resulted from an “acute event.”2

Suspecting abuse, Dr. Davis called the Georgia Division of

Family and Children Services (“DFCS”), which then implemented a

safety plan that temporarily placed Adrian and L. D. under the care

of Sydney’s mother, Joyce Greene, and that permitted only

supervised contact between Sydney and her children while

prohibiting contact between the children and Rashad.3

In February 2018, the children were returned to Sydney’s

custody. At this point, Sydney still lived with Rashad.

(b) April 2018

After the children were returned to Sydney’s custody, she

usually worked night shifts in Calhoun from 7:00 p.m. to 7:00 a.m.,

while Rashad worked in Cartersville from about 7:00 or 7:30 a.m. to

2 Sydney gave several explanations for Adrian’s injuries, including that

he was playing with another child, that L. D. potentially stepped on his leg,
and that Sydney rolled on top of him while they were napping on the couch.
However, the doctors did not believe that Adrian’s injuries were consistent
with Sydney’s explanations.
3 No charges for Adrian’s injuries, however, were brought against

Rashad or Sydney at the time.
6
4:00 or 5:00 p.m. Sydney would usually return from work at about

7:40 a.m., and Rashad would usually leave for work at around 7:00

a.m. For a period of time, Sydney’s sister would watch the children

between when Rashad left for work and when Sydney got home. A

few weeks before Adrian’s death in April, however, Sydney asked

her sister to stop watching the children, because Sydney did not

want her sister to get “cussed out” by Rashad. After that, Adrian and

L. D. were left alone from the time Rashad left for work until the

time Sydney returned home.

(i) April 12, 2018

On the morning of April 12, Sydney, taking Adrian with her,

dropped L. D. off at school and then ran errands with Adrian. After

Sydney and Adrian returned home, she cleaned the house and he

ran around. At one point, Adrian knocked a TV onto himself. Sydney

picked him up, and after he “wiggl[ed] to get back down,” she set him

down and he continued to play.

Later that day, Sydney took Adrian to a bank to get a money

order. Security footage and photos from the bank on April 12 at

7
around 1:30 p.m. captured Adrian looking around, playing with a

toy, and reaching for and kissing Sydney, who smiled and laughed.

Following the bank trip, Sydney took Adrian with her to pick up L.

D. from school at around 2:30 to 2:45 p.m. A teacher at L. D.’s school,

who saw Adrian in the car when Sydney came to pick up L. D.,

testified that Adrian appeared then “like he did every day when

[she] spoke to him.”

Sydney returned home with both children at about 3:00 p.m.,

fed them at about 4:30 p.m., bathed them, and then left for work at

about 6:15 p.m. for her 12-hour shift, which began at 7:00 p.m.4

Rashad returned home at some point between Sydney feeding the

children and her leaving for work. When Sydney got her first break

from work that night at around 9:00 or 10:00 p.m., she and Rashad

spoke on the phone for about an hour. In that call, Sydney did not

receive any indication from Rashad that anything was wrong with

4 A supervisor at Sydney’s workplace for the shift from 7:00 p.m. to 7:00

(ii) April 13, 2018

At about 2:30 a.m., Sydney received a text from Rashad asking

her how hard Adrian had hit himself and telling her that Adrian had

a mark on his head. Sydney returned to work, since at the time she

“just didn’t think it was . . . serious.” Rashad then sent her a photo

of Adrian’s head with red marks on it that Sydney had not seen

before she left for work. At about 3:00 a.m., Sydney texted that it

was hard for her to concentrate at work.

Early in the morning at about 6:00 a.m., after Sydney texted

Rashad to ask if he was up, he texted: “I hope this boy is okay [ ]b/c

he acted like his [sic] is so sleepy.” Sydney texted back that she was

worried about Adrian. At about 6:50 a.m., as she was getting off

work, she and Rashad spoke on the phone, and Rashad told her that

Adrian had a seizure. In that call, Rashad also told Sydney that

Adrian was okay before he left for work and that he had stuck a

spoon in Adrian’s mouth to keep his teeth from “chittering,” causing

a mark on his mouth.

9
Once Sydney got home, she picked up Adrian, but he would not