Benson v. State

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
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official text of the opinion.

In the
Supreme Court of Georgia
No. S26A0425
Deandra Benson
v.
The State

On Appeal from the Superior Court of Cobb County
No. 23-9-1737

Decided: May 19, 2026

MCMILLIAN, Justice.
Deandra Benson appeals from his convictions for malice
murder and other crimes in connection with the shooting death of
Timothy Bennett. 1 Benson asserts that (1) the trial court erred by
proceeding to trial without issuing a written order on his motion
for immunity from prosecution; (2) the trial court erred in denying
the motion for immunity from prosecution; (3) the trial court

1 The crimes were committed on February 10, 2023. In April 2023, a
Cobb County grand jury indicted Benson for malice murder (Count 1), felony
murder (Count 2), aggravated assault (Count 3), and possession of a firearm
during the commission of a felony (Count 4). At a jury trial held in July 2024,
Benson was found guilty of all counts. On August 7, 2024, the trial court sen-
tenced Benson to serve life in prison for malice murder and a consecutive five-
year term for possession of a firearm during the commission of a felony; the
remaining counts either merged for sentencing purposes or were vacated by
operation of law. Benson timely filed a motion for new trial, which was
amended through new counsel in April 2025. Following a hearing, the trial
court denied the motion, as amended, on August 14, 2025. Benson timely filed
a notice of appeal, and his case was docketed to the term of this Court begin-
ning in December 2025 and submitted for a decision on the briefs.
erred in denying Benson’s motion to introduce evidence of prior
bad acts committed by the victim under OCGA §§ 24-4-404 and
24-4-405; and (4) trial counsel rendered constitutionally ineffec-
tive assistance by failing to request a jury instruction on justifi-
cation and the use of force in defense of personal property. We
conclude that Benson waived appellate review of the trial court’s
failure to reduce to writing its oral ruling on the motion for im-
munity from prosecution, the trial court did not abuse its discre-
tion in denying the motion for immunity from prosecution or in
denying Benson’s motion to introduce evidence of prior bad acts,
and trial counsel was not deficient in forgoing a jury charge on
defense of personal property, and so we affirm.
The evidence introduced at trial showed that Benson was
in a romantic relationship with Timothy’s sister, Leanna Bennett.
Benson and Leanna lived together with their two young children
in Cobb County. In the years leading up to the shooting, there
were multiple instances of domestic disputes between Benson and
Leanna. Leanna testified that Benson “got more controlling” over
time, that he was verbally abusive, and that he “constantly” broke
her cell phone and laptop. At times, their arguments became
physical. In the fall of 2021, Benson choked her to the point that
she could not breathe. Leanna briefly moved out after that inci-
dent and later discovered that Benson had placed a tracker in her
belongings to identify her new location. The couple eventually rec-
onciled, and Leanna moved back into their home in January 2022
after she became pregnant with their second child. However, their
relationship then deteriorated, and Leanna decided to look for a
new home for her and her children. In response, Benson put their
home up for sale and told her, “[G]ood luck figuring out how to
pay for a place.”
Eventually, Leanna planned to move out of the house on

2
February 10, 2023, at a time when Benson would be attending a
funeral with his father, Marcus Perryman. A couple of Leanna’s
male friends came to the house with a moving van and helped her
pack while a nanny looked after the children. When Leanna told
Timothy that she was planning to move out that day, Timothy
immediately came to help. He drove his truck to the house, left it
there, and then drove the loaded moving van to a storage unit that
Leanna was renting. Leanna followed Timothy, and as she was
leaving the neighborhood, she saw Benson returning from the fu-
neral with his father.
When Leanna got back to the house, she saw Benson and
Perryman taking bags of clothes out of the back of Timothy’s
truck. She went inside to sit with her children, and Benson came
in with a knife in his hand. Leanna asked him why he had a knife,
and he said, “I have this knife to cut a rope off your brother’s
truck.” 2 Benson then ran upstairs, and when he came back down,
he lifted his shirt and showed her a gun in his back pocket. He
told her, “I will kill a N-word. … I know you had your brother and
that gay boy in the house.” Leanna immediately called her
brother and her friend and told them that Benson had a gun and
that they should not come back to the house.
As Leanna was still on the phone with her friend, she saw
Timothy returning in the moving van. Benson ran out to the
street, and Leanna followed, carrying their infant daughter. Ben-
son immediately asked Timothy, “[M]y s**t in this truck[?]” Ben-
son and Timothy continued to argue and call each other names in

2 Leanna video recorded that interaction, and the video was played for
the jury at trial.

3
the middle of the street before moving closer to the home. Perry-
man called 911 while Benson and Timothy were arguing. 3 Timo-
thy told Leanna, “[G]et the kids and let’s go.” Leanna reminded
Timothy that Benson had a gun in his back pocket and that he
should leave.
According to Leanna, Benson shoved Timothy, and Timo-
thy fell back into the bushes next to the house. When Timothy
stood up, he shoved Benson back, and then they “locked arms.”
Perryman then came up from behind Leanna, while she was
standing in the middle of the doorway of the house, and grabbed
Timothy’s arm. Leanna said, “[Perryman], no, stop” because Per-
ryman had given Benson the opportunity to pull his gun out. Ben-
son then aimed the gun at Timothy while he was on the steps in
front of the doorway and “just emptie[d] it into him.” Leanna ran
upstairs to give the baby to the nanny before returning to Timo-
thy to try to stop the bleeding; Benson did not attempt to render
aid.
Perryman also testified at trial. According to Perryman, af-
ter he and Benson returned from the funeral that day, Benson
went inside the house as he started to get into his car. Benson
then came back outside and said, “I need you to help me to get my
things out of this vehicle.” Perryman agreed to help, and Benson
went inside to get a knife to cut the straps tied down over the
items in the back of the truck. Perryman heard Benson tell
Leanna, “You can leave … But you can’t take my things. You’re
not going to take things that belong in my home for my kids when
they come visit me.” Leanna responded, “I need it.”

3 A recording of Perryman’s 911 call was played for the jury. Portions
of the encounter were also captured on nearby Ring and Nest cameras and
played for the jury at trial.

4
As they were standing on the steps outside, they saw a
moving van coming down the street at a “very fast pace.” After
the van parked and Timothy exited the van, Benson walked over
and asked Timothy, “Do you have any of my s**t in the truck?”
Timothy slammed the van door and said, “I’ve been waiting a long
time to f**k you up.” At that point, Perryman, who knew that
Benson had armed himself with a gun, called 911 and told Timo-
thy, “You need to back up. I’ve already called the authorities.”
While Perryman went into the house to look for something
that had the address for the 911 dispatcher, he heard “all this
commotion” as Benson and Timothy were “in [the] doorway.”
When he turned around, he saw that Timothy had Benson “in
some type of headlock.” Perryman “squeeze[d] through the
threshold” and “grabbed at [Timothy] and … pull[ed] him away.”
After he pulled Timothy back, Benson “discharged the weapon,”
and Timothy fell “next to [a] planter” on the front steps leading to
the house. After shooting Timothy, Benson “hit [Timothy] on the
head with the gun.” Perryman could not recall whether Timothy’s
hands were on Benson at the time that Benson fired the gun, but
Perryman confirmed that Timothy never made physical contact
with Perryman personally.
Law enforcement officers and emergency medical person-
nel arrived soon after Perryman called 911. Despite life saving
measures, Timothy died of his wounds. Officers collected six .40-
caliber shell casings outside the house near where Timothy was
lying by a planter on the front porch, as well as a Smith & Wesson
SD40 VE handgun in a drawer in the home’s office. The gun’s
magazine was empty. Based on the location of the shell casings
and the fact that there were no casings or projectiles or bullet
holes inside, officers determined that the shooting had occurred
outside the house. Officers observed that Benson had only “cat

5
scratches” on his face.
The medical examiner who performed Timothy’s autopsy
testified that Timothy had a total of nine gunshot wounds, includ-
ing re-entry wounds, that would have caused Timothy to immedi-
ately collapse. Based on the location and trajectory of the gunshot
wounds, the medical examiner opined that it was “very unlikely”
that Timothy had been “wrestling or … charging the shooter head
on, face to face at the time he was shot.” And at least one of the
gunshot wounds was inflicted while his arms were down by his
side. Timothy did not have any injuries to his hands that would
have indicated “rough punches or blows or anything like that done
with the fists.” The medical examiner concluded that the shooter
and Timothy were at least a foot and a half apart when the shots
were fired. Five of the gunshot wounds were determined to be in-
dependently lethal. Timothy also suffered blunt-force injuries to
his head, including at least two broken teeth and hemorrhaging
of the brain, that were consistent with being pistol-whipped. The
medical examiner determined that Timothy died due to the gun-
shot wounds, with blunt-force head trauma as a contributing fac-
tor, and that the blunt-force head trauma could have been lethal
on its own.
1. Benson first asserts that the trial court erred by proceed-
ing to trial without issuing a written order on his motion for im-
munity from prosecution because without a written order, the
oral denial of the motion for immunity from prosecution was a
nullity and the failure to issue a written order before trial de-
prived Benson of the opportunity to seek a certificate of immedi-
ate review. As relief, Benson seeks a new trial preceded by an-
other hearing on the motion for immunity from prosecution, so
the trial court may issue a written order on the motion before
trial.

6
Prior to trial, Benson filed a motion for immunity from
prosecution pursuant to OCGA §§ 16-3-21 (defense of self), 16-3-
23 (defense of habitation), and 16-3-24 (defense of personal prop-
erty). Before the hearing on his motion, Benson filed an amended
motion to add that he should be immune from prosecution pursu-
ant to OCGA § 16-3-21 (defense of others). After the conclusion of
Benson’s evidence at the hearing, the State moved to dismiss the
motion. The trial court granted the State’s motion and orally de-
clared its findings. The trial court noted testimony that Benson
“was mad because [Leanna] … was leaving without telling him,
that … [Benson’s] aunt, who is usually the babysitter of the chil-
dren, was in on this plan and that he was upset because she did
not tell him that [Leanna was leaving.]” The trial court also noted
that at least one of the shots was fired “while the victim is on the
ground” and that Benson then “[took] the gun and hit[] the victim
in the head while he’s on the ground, after he had been shot.” The
trial court specifically found that Benson’s testimony was not
“completely credible” and that the evidence was “consistent with
someone who is angry and decid[ed] they want to shoot the per-
son, not in defense of themselves or their home or their relative.”
The trial court acknowledged that it was required to determine
the issues “by a preponderance of the evidence” and concluded:
I find the defense has not made a prima facie case of
self-defense in all three areas. I base this upon the
documentary evidence, the physical evidence, the
photos. And I also base it upon my review of the ev-
idence, my looking at the witnesses, my determining
the credibility of the witnesses.

No written order was entered prior to trial commencing on

7
July 9, 2024. 4 Benson did not request a written order and an-
nounced ready when the case was called for trial. 5 When Benson
raised the issue approximately one year after trial, the trial court
prepared a written order denying Benson’s pretrial motion for im-
munity, dating the order nunc pro tunc to July 1, 2024.6
Pretermitting whether the trial court was required to re-
duce its oral ruling to writing before trial, Benson failed to pre-
serve this issue for appellate review. Benson never requested a
written order before trial and instead announced ready for trial
and proceeded with trial. In addition, to the extent that Benson is
claiming that his due process right to seek a certificate of imme-
diate review was violated by the trial court’s failure to issue a
written order before trial, Benson never requested a certificate of
immediate review from the oral ruling or a written order. Thus,
Benson has waived any appellate review of this enumeration of
error. See, e.g., Benton v. State, 300 Ga. 202, 205 (2016) (“Gener-
ally, to preserve appellate review of a claimed error, there must
be a contemporaneous objection made on the record at the earliest
possible time. Otherwise, the issue is deemed waived on appeal.”
(punctuation omitted)).

4 It appears that the trial court asked the State to prepare an order
denying the motion, but no such order was filed. The State represents that a
proposed order was emailed to the trial court’s staff attorney and Benson’s
counsel on July 3, 2024, but it was not signed or filed.
5 Benson does not argue that trial counsel was ineffective for failing to
request a written order or a certificate of immediate review from the oral denial
of the immunity motion.
6 In that order, the trial court inadvertently included facts from an un-
related case; on July 14, 2025, the court entered an amended order nunc pro
tunc denying the motion. Benson argues that he is harmed by the failure to
issue a written order before trial because the nunc pro tunc order is invalid
and includes more and different findings than the trial court’s oral ruling. This
argument will be addressed in Division 2.

8
2. Benson next asserts that the trial court erred in denying
his motion for immunity from prosecution. We are not persuaded.
To prevail on a motion for immunity from prosecution, a
criminal defendant must establish his justification defense by a
preponderance of the evidence. See Ellison v. State, 313 Ga. 107,
110 (2022). In reviewing the grant or denial of such a motion, we
review the evidence in the light most favorable to the trial court’s
ruling and accept the trial court’s findings of fact and credibility
determinations if there is any evidence to support them. See
Whisnant v. State, 322 Ga. 253, 260 (2025). Here, the trial court
heard testimony from Benson and Perryman, reviewed photo-
graphic and video evidence from the crime scene, listened to the
911 calls, watched Ring and Nest video recordings, and watched
a portion of Perryman’s interview with investigators. 7
Benson testified at the hearing that he did not really know
Timothy before the shooting but had “run across [him] a couple
times.” He explained, however, that Leanna “harbored this … ob-
session with using [Timothy] as a weapon” and that she “would
threaten [him] … that she would have her brother come over to
the house and f**k [him] up.” Benson also testified that Leanna
had told him that Timothy “wasn’t allowed over at the [mother’s]
house because he went over there and threatened [their step-fa-
ther] and the cops were called.”
Benson stated that when he left the house the morning of
the funeral, the house “was spotless” because it was “up for sale.”
When he returned, there were multiple televisions and boxes in
the entryway, and several of his personal items were missing

7 The evidence presented at the immunity motion hearing was largely
the same as what was eventually presented at trial and described above, except
that Benson did not testify at trial.

9
throughout the house. He noticed that there was a pickup truck
parked in the street with his belongings in the back, so he asked
his father to help him bring his things inside his home. Benson
admitted that he was “mad” and “upset” because Leanna was
“taking [his] things … to teach [him] a lesson that she was leaving
because she has to leave [his] home.”
As Benson and his father were bringing his stuff back in
the house, Timothy came up, driving the U-Haul “kind of aggres-
sively fast in the neighborhood.” Benson was “upset with indigna-
tion, just because [he] kn[e]w that they’re taking [his] things.”
Benson, who was armed at that time, approached the U-Haul and
asked Timothy, “Hey, is my s**t in that van?” Timothy “ripped
off” his shirt and “just slam[med]” things to the ground. Benson
described Timothy as “out of control, zero to one hundred.” The
first thing Timothy said was, “I’ve been waiting a long time to do
this.” According to Benson, Timothy then “charge[d] towards
[him], … grab[bed] [him], ... head-butt[ed] [him]” and “started in-
sulting [him].” Then, “[o]ut of fear of just being punched, [he] was
holding his hands down to stop him from hitting [him].”
When Timothy pushed him backwards, Benson “immedi-
ately screamed at him in anguish: Don’t put your f**king hands
on me” and “started backing up towards [his] home.” Once he
made it back on his property, he “immediately ordered [Timothy]
off of [his] property,” but Timothy “wouldn’t leave.” Leanna ran
out of the house carrying their infant daughter and “immediately
start[ed] pleading with [Timothy] to stop and leave” and told Tim-
othy that Benson had a gun. Benson told Leanna to bring their
daughter back into the house, and Leanna complied.
Benson turned to follow Leanna into the house when Tim-
othy “start[ed] coming right at [Benson]” and “bum-rushed [him].”
At that point, both Benson and Timothy “stumbled on [a] bush,”

10
and they “f[e]ll back into the house.” Benson claimed that he could
smell alcohol on Timothy’s breath. They continued to physically
“struggle,” and once Benson “got free,” he saw Timothy and Per-
ryman “in a physical struggle.” Benson explained, “When he was
attacking me, I did not defend myself. I took every bit of his dram-
atized brutality. But when it came to my father, that’s when it
sparked me to discharge my firearm.” Benson claimed that when
he fired the gun, he was “maybe five feet into [his] home” and that
Timothy was “right at the threshold.”
Benson admitted that after he shot Timothy, he “hit him in
the head with the gun” after it looked like Timothy “lean[ed] up,
like he[] [was] trying to get up.” He agreed that he never told the
police that he had pistol-whipped Timothy. Benson also admitted
the following:
When I hit him, it was just a passionate, angry, heated mo-
ment. I just felt like everything came to me at once, all the stuff
that he did to me. I just couldn’t control myself, and I just hit him.
When I seen him get up, I just hit him. It was just an emotional
moment.
…
I felt like he kind of provoked me and agitated the situation
to make me do something I didn’t want to do. I felt like he had
every opportunity to stop. I felt like I tried to make him stop. And
I feel like he put me a position that’s ruining his life and ruining
my life, and I feel like it was all because of ego.
…
I will admit, when that happened – I’m not going to sit here
and sugarcoat this -- that was a heated, emotional, passionate
moment. I couldn’t help myself, and I bopped him. I’m not going
to justify that part, I will be honest with you.

11
As an initial matter, we note that Benson focuses his argu-
ment on the trial court’s oral ruling because, as set forth in his
first enumeration of error, he believes that the written order
denying his motion for immunity motion was a legal nullity.8
However, it is well settled that a trial court’s written order gov-
erns over its oral pronouncement. See State v. Hamilton, 306 Ga.
678, 685 (2019) (“[E]ven if there were a discrepancy between an
oral pronouncement and a written ruling, it is well settled that
the discrepancy will be resolved in favor of the written judgment.”
(punctuation omitted)). Thus, we focus our analysis on the trial
court’s written order.
In its written order, the trial court concluded that Benson
did not carry his burden to prove “by a preponderance of the evi-
dence that he reasonably believed shooting the unarmed victim
at least six times was necessary to prevent death or great bodily
injury to himself or to his father.” In reaching this conclusion, the

8 Benson argues that the nunc pro tunc written order is a legal nullity
because the trial court “used its nunc pro tunc power to entirely re-write the
record with a new order on immunity containing substantive conclusions on
the facts and law which were not reached until a year after the trial concluded.”
However, it is clear from the record that the trial court orally ruled on the
motion for immunity from prosecution with factual findings, such that it was
appropriate for the trial court to issue the written order denying immunity
from prosecution nunc pro tunc. See, e.g., Sigal v. Sigal, 289 Ga. 814, 816–17
(2011) (“A nunc pro tunc order may properly be used to cause a written judg-
ment … to relate back to the date of the original hearing and oral ruling.”).
And to the extent that Benson argues that the trial court’s written order devi-
ates from its earlier oral ruling, we are not persuaded that any differences are
material to our analysis. In both rulings, the trial court reached the same con-
clusions: Timothy and Benson were involved in a verbal and physical confron-
tation; Benson shot Timothy multiple times, including at least one time while
Timothy was on the ground; Benson pistol-whipped Timothy after shooting
him; and Benson acted out of anger, not in defense of himself, his father, or his
habitation.

12
trial court noted that Timothy “was not physically struggling
against [Perryman] at the time of the gunfire”; that “[a]t least one
shot was fired while [Timothy] was defenseless and on the
ground”; that Benson “then pistol whipped [Timothy], even
though [Timothy] was on the ground suffering from numerous
gunshot wounds”; and that the evidence did “not establish that
[Benson] acted out of fear.”
As to defense of habitation, the trial court concluded that
it “disbelieves [Benson’s] testimony regarding his need to defend
his home from [Timothy]” and that “the shooting was motivated
by [Benson’s] anger and not in defense of self, defense of others,
or defense of habitation.” Specifically, the trial court found that
“[Perryman’s] testimony and demeanor while doing so, the phys-
ical evidence on scene depicted by the crime scene photos, the po-
sition of the victim’s body, and [Benson’s] initial Mirandized po-
lice interview all collectively discredit [Benson’s] testimony re-
garding [Timothy’s] alleged entry into the residence.” 9
Under Georgia law, with respect to defense of self or others,
[a] person is justified in threatening or using force
against another when and to the extent that he or
she reasonably believes that such threat or force is
necessary to defend himself or herself or a third per-
son against such other’s imminent use of unlawful
force; however, except as provided in § 16-3-23, a

9 The trial court also noted that Benson knew that Leanna was moving
out and suspected that she was doing so with Timothy’s help. The trial court
further found that Benson may have engaged with Timothy with the intent to
provoke him to violence—as evidenced by Benson’s approaching Timothy at
the U-Haul and “aggressively demand[ing] to know whether his ‘sh*t’ was in
the van”—and then use the physical altercation as an excuse to inflict bodily
harm on Timothy.

13
person is justified in using force which is intended or
likely to cause death or great bodily harm only if he
or she reasonably believes that such force is neces-
sary to prevent death or great bodily injury to him-
self or herself or a third person or to prevent the com-
mission of a forcible felony.

OCGA § 16-3-21(a).
In addition, with respect to the defense of habitation, as
relevant here, 10
[a] person is justified in threatening or using force
against another when and to the extent that he or
she reasonably believes that such threat or force is
necessary to prevent or terminate such other’s un-
lawful entry into or attack upon a habitation; how-
ever, such person is justified in the use of force which
is intended or likely to cause death or great bodily
harm only if:

(1) The entry is made or attempted in a violent and
tumultuous manner and he or she reasonably be-
lieves that the entry is attempted or made for the
purpose of assaulting or offering personal violence to
any person dwelling or being therein and that such
force is necessary to prevent the assault or offer of

10 Although Benson’s motion for immunity from prosecution also in-
cluded a reference to OCGA § 16-3-23(3) (“The person using such force reason-
ably believes that the entry is made or attempted for the purpose of committing
a felony therein and that such force is necessary to prevent the commission of
the felony.”), it appears from the hearing transcript that Benson ultimately
relied only on subsection (1). And in his brief on appeal, his argument is limited
to subsection (1); thus, we limit our analysis to that subsection.

14
personal violence.

OCGA § 16-3-23.
We have recognized that the justification defense of self or
others contains both subjective and objective components. Thus,
“[i]n addition to showing that the defendant actually believed that
his use of force was necessary,” he also “must show that his fear
was objectively reasonable.” Allen v. State, 317 Ga. 1, 5 (2023)
(emphasis added). Similarly, with respect to defense of habitation
under the circumstances of this case, Benson “must have reason-
ably believed that the use of deadly force was necessary.” Clark v.
State, 307 Ga. 537, 541 (2019). Based on the evidence introduced
at the hearing, the trial court did not abuse its discretion in find-
ing that critical portions of Benson’s testimony were not credible,
that he acted out of anger rather than actual fear, and that he
had not shown by a preponderance of the evidence that he was
justified in shooting Timothy. 11 See Whisnant, 322 Ga. at 261 (af-
firming trial court’s denial of motion for immunity from prosecu-
tion where the trial court found that the evidence supported the
conclusion that the defendant killed the victim in anger or retali-
ation). Accordingly, this enumeration fails.12 See Ellison v. State,

11 To the extent that Benson challenges the trial court’s factual find-
ings that Perryman “never testified that the victim came into the house or was
going to the house,” we uphold a trial court’s ruling if there is any evidence to
support the trial court’s factual findings, even if disputed or contradicted by
other evidence. See Allen, 317 Ga. at 6 (as the finder of fact, the trial court “is
not required to credit testimony merely because it is unrebutted”). There was
evidence from Perryman that Timothy was shot on the “foyer” outside the
home.
12 Benson argues that the trial court neglected to rule on his claim of
defense of personal property in connection with the immunity motion, see
OCGA § 16-3-24. Pretermitting whether that claim was waived when counsel

15
313 Ga. 107, 111 (2022) (affirming denial of motion for immunity
from prosecution where evidence “supported an inference that
[appellant] shot [victim] out of anger, to assert dominance, or to
avenge past wrongs, rather than in self-defense”); Clark, 307 Ga.
at 541 (where evidence showed that defendant and victim were in
a physical “‘tug-of-war’” without any serious threat of harm,
finder of fact authorized to conclude that defendant did not rea-
sonably believe that deadly force was necessary to end the en-
counter under the circumstances).
3. Benson also asserts that the trial court abused its dis-
cretion in denying his motion to introduce evidence of Timothy’s
prior bad acts under OCGA §§ 24-4-404 and 24-4-405. Because
the trial court ultimately excluded the evidence under OCGA §
24-4-403, and the trial court did not abuse its discretion in that
regard, this enumeration fails.
On July 9, 2024, Benson filed a notice of intent to introduce
evidence of prior bad acts based on the testimony of Mark Frazier,
who was Timothy’s former step-father. Specifically, Benson
sought to introduce evidence of Timothy having allegedly commit-
ted a burglary, aggravated assault, battery, and terroristic
threats against Frazier in March of 2020. The State objected to
the introduction of Frazier’s testimony, and a hearing was held
the same day.
Benson had previously testified at the immunity hearing
that Leanna “explained to [him] that [Timothy] wasn’t allowed

did not argue that defense at the hearing and did not seek a ruling on that
defense, we conclude that the trial court impliedly denied that defense given
its other rulings. Cf. Perkins v. State, 313 Ga. 885, 895 (2022) (concluding trial
court implicitly denied motion for mistrial where trial court adjourned for the
day and took the matter under advisement before ultimately giving a curative
instruction).

16
over at [Frazier’s] house, because he went over there and threat-
ened the old man, and the cops were called.” Benson confirmed
that he knew nothing else about what had transpired between
Timothy and Frazier. The State argued that the proffered evi-
dence was inadmissible because the evidence from the immunity
hearing demonstrated that Benson’s knowledge of the alleged
other act was limited. The State further argued that at the time
of the shooting Benson did not know what allegedly happened be-
tween Timothy and Frazier, and, therefore, the proffered evidence
was nothing more than inadmissible propensity evidence.
Defense counsel proffered that, in March 2020, Timothy’s
mom asked Timothy to come to her and Frazier’s house during a
verbal disagreement. Timothy “came over, forced himself in the
house. There was some sort of physical altercation. And he ulti-
mately left and then, at a later time that same evening, sent a
threatening text.” Counsel then detailed specifics about the inci-
dent that she anticipated admitting through Frazier, including
that Timothy “[wa]s coming after him, and there’s a physical tus-
sle that occur[red],” which was only broken up when Timothy’s
mother “jump[ed] in between the two and she f[ell] to the ground.
And … Frazier [became] concerned for her, and that kind of
jar[red] everything back into perspective. And Timothy [left] the
home,” after which Timothy texted Frazier, which Frazier “inter-
preted to be threatening.”
The State responded that Benson would be well within his
right to testify as to his knowledge, if any, of the incident involv-
ing Frazier and Timothy “because that is relevant to [Benson] and
his state of mind.” However, the State asserted that it would be
impermissible to permit Frazier to testify as to the specifics of the
incident because the record before the court reflected that Benson
“doesn’t know anything about any of that.” The State also argued,

17
“[T]o put [Frazier] up and go, this is what happened, with sort of
a mini-presentation of I’m married to the victim’s mom, this is the
nature of our relationship, this is what happened at this date and
time, Mr. Benson doesn’t know anything about any of that. [Ben-
son] wasn’t present, he wasn’t there. He wasn’t in the house when
Mom fell over. He doesn’t know how the incident resolved itself or
anything along those lines.”
The next morning, the trial court indicated that it read the
entirety of the immunity hearing transcripts to verify what Ben-
son had testified to, that Benson had “very limited” knowledge of
the incident, that the probative value of the evidence was sub-
stantially outweighed by the danger of unfair prejudice, and that
it would “confus[e] the issues with the jury.” The trial court orally
denied the motion, denied Benson’s request for a certificate of im-
mediate review, and denied Benson’s request for a special instruc-
tion to the jury regarding his inability to corroborate the incident.
At trial, the trial court permitted Benson to introduce evi-
dence concerning what Benson actually knew about Timothy’s
prior encounter with Frazier, which he attempted through the
cross-examination of Leanna, the sole source of his purported
knowledge. Thus, the trial court did not exclude all evidence of
the prior incident; rather, it limited the evidence to that which
Benson was actually aware of at the time of the shooting. See
Ward, 318 Ga. at 902 (defendant must establish that he had “per-
sonal knowledge” of the “specific acts of violence” at the time the
shooting occurred (punctuation omitted)).
On appeal, Benson argues that the trial court abused its
discretion in refusing to admit evidence from Frazier about his
altercation with Timothy based on our holding in Copeland v.
State, 316 Ga 452, 458 (2023). We review a trial court’s eviden-
tiary rulings for an abuse of discretion. See Smith v. State, 322

18
Ga. 881, 883 (2025).
Here, even assuming that Frazier’s testimony was admis-
sible under OCGA §§ 24-4-404 and 24-4-405 despite Benson’s lim-
ited knowledge of the incident, 13 the record shows that the trial
court ultimately excluded this testimony under OCGA § 24-4-403
(“Rule 403”). Rule 403 provides that “[r]elevant evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” In excluding the
testimony, the trial court noted that Benson had “very limited”
knowledge of the alleged prior altercation between the victim and
a third party and determined that allowing the presentation of a
mini-trial through Frazier’s testimony “would be significantly
prejudicial and confus[e] the issues with the jury.” The trial court
concluded that, although the proffered evidence had “some proba-
tive value[,] … it [was] substantially outweighed by the prejudice
of bringing in the other evidence surrounding it.”
On appeal, Benson does not argue that the trial court
abused its discretion in excluding this evidence under Rule 403,
and we see no abuse of discretion in the trial court’s determina-
tion that allowing Frazier (the victim’s mother’s ex-husband) to

13 As noted above, Benson had testified at the immunity hearing that
his only knowledge of the incident was that Timothy “went over there and
threatened the old man.” And defense counsel’s proffer explained that Timothy
came to the house at his mother’s request when she and Frazier (who later
divorced) got into an argument. See Beck v. State, 310 Ga. 491, 498 (2020) (ex-
plaining that to be admissible under OCGA §§ 24-4-404(a)(2) and 24-4-405(b),
the victim’s prior conviction must have been known to appellant and must con-
stitute a “specific act[] of violence” within the meaning of federal case law).
Because Benson did not testify at trial, there was limited evidence presented
at trial as to his knowledge of the altercation between Frazier and Timothy.

19
testify as to an alleged prior altercation, of which Benson had very
limited second-hand knowledge, would have been minimally pro-
bative of Benson’s state of mind while requiring a mini-trial that
would lead to confusion of the issues with the jury. See Gialenios
v. State, 310 Ga. 869, 879 (2021) (affirming trial court’s exclusion
of evidence under OCGA § 24-4-404(a)(2) and noting that “even
relevant evidence may be excluded if the trial court finds that its
probative value is substantially outweighed by the danger of un-
fair prejudice” (punctuation omitted)), overruled in part on other
grounds by Outlaw v. State, 311 Ga. 396, 401 (2021). See also
Payne v. State, 318 Ga. 249, 254–56 (2024) (trial court did not
abuse its discretion in excluding evidence of co-defendant’s drug
use where it concluded probative value of evidence was substan-
tially outweighed by danger of unfair prejudice); Corley v. State,
308 Ga. 321, 326 (2020) (no abuse of discretion in excluding evi-
dence of defendant’s conversation with neighbor prior to shooting
asking for him to call 911 if he heard screaming where it would
have been needlessly cumulative and had little probative value);
State v. Stephens, 310 Ga. 56, 60 (2020) (explaining no abuse of
discretion when trial court determines connection between evi-
dence and purpose for which it is being offered is too tenuous to
establish relevance or that chain of inferences jury would be re-
quired to make was too attenuated).
To the extent that Benson argues that the exclusion of this
evidence violated his right to present a defense under the Sixth
Amendment to the United States Constitution, this argument
also fails. We first note that “it is axiomatic that a defendant’s
right to present a full defense does not entitle him to place before
the jury irrelevant or otherwise inadmissible evidence.” United
States v. Rushin, 844 F3d 933, 941 (11th Cir. 2016) (punctuation
omitted). See also Palmer v. State, 318 Ga. 511, 527 (2024) (noting

20
“state and federal rulemakers have broad latitude under the Con-
stitution to establish rules excluding evidence from criminal tri-
als” (punctuation omitted)). Here, the trial court properly ex-
cluded Frazier’s testimony after conducting a Rule 403 balancing
test. See Holmes v. South Carolina, 547 US 319, 326 (2006) (ex-
plaining that defense evidence can be excluded “if its probative
value is outweighed by certain other factors, such as unfair prej-
udice, confusion of the issues, or potential to mislead the jury”).
4. Benson contends that his trial counsel rendered ineffec-
tive assistance by failing to request jury instructions on justifica-
tion and the use of force for personal property.14 We disagree.
In order to prevail on this claim, Benson must show both
that his trial counsel performed deficiently and that he was prej-
udiced by counsel’s deficient performance. See Strickland v.
Washington, 466 US 668, 687 (1984). To show deficient perfor-
mance, he “must overcome the strong presumption that his coun-
sel’s conduct falls within the broad range of reasonable profes-
sional conduct and show that his counsel performed in an objec-
tively unreasonable way in the light of all the circumstances and
prevailing norms.” Thurman v. State, 311 Ga. 277, 278 (2021)
(cleaned up). To establish prejudice, Benson “must show that
there is a reasonable probability that, but for counsel’s deficiency,
the result of the trial would have been different.” Zayas v. State,
319 Ga. 402, 409 (2024) (cleaned up). We need not address both
parts of the Strickland test if Benson does not meet his burden of
establishing one. See Blalock v. State, 320 Ga. 694, 697 (2025).
Prior to trial, Benson’s former counsel submitted a request

14 On appeal, Benson does not specify what personal property should
have been the subject of a defense of personal property charge, but presumably
Benson is referring to the furniture, clothing, and other items that Leanna was
moving from the house.

21
to charge on the use of force in defense of personal property. How-
ever, during the charge conference, subsequent trial counsel did
not address that instruction. Instead, the discussions revolved
around justification in defense of self, others, and habitation and
matters tangential to those defenses, upon which the trial court
ultimately instructed the jury.
At the motion for new trial hearing, trial counsel, who had
been practicing law since 1999 and focused almost exclusively on
criminal law, testified that her defense theory was focused on “de-
fense of my client, his family, and his home.” She could not recall
a strategic reason for leaving out defense of personal property,
but she later agreed on cross-examination that a defense of per-
sonal property charge could have been confusing for the jury
where the items were already outside of the house. Trial counsel
also testified that when arguing justification to a jury, “her [goal]
is always to boil it down as basic as possible for jurors” because
“if you make … arguments that are just so far out, then the jury
stops listening to you and will not consider … credible issues or
arguments.” The trial court credited trial counsel’s testimony and
ultimately concluded that Benson did not demonstrate prejudice
because the charge in question was not adjusted to the evidence.
We conclude that Benson has not shown that counsel acted
deficiently in failing to request a charge on defense of personal
property. Although trial counsel could not recall a specific strate-
gic reason to forgo this request, “we are not limited in our assess-
ment of the objective reasonableness of lawyer performance to the
subjective reasons offered by trial counsel.” Lane v. State, 312 Ga.
619, 623 (2021). Under the circumstances of this case, it was a
reasonable trial strategy to focus on the three strongest justifica-
tion defenses – defense of self, others, and habitation – that would

22
have resonated more with the jury, rather than arguing that Ben-
son was justified in shooting Timothy to protect his furniture,
clothing, and other personal items. See Graham v. State, 323 Ga.
496, 499 (2026) (concluding trial counsel was not deficient in for-
going a charge on defense of property because “[a] competent at-
torney could have reasonably concluded that the better strategy
was to focus on a single, and straightforward, justification de-
fense”). Accordingly, this enumeration of error fails.
Judgment affirmed. All the Justices concur, except Warren,
P. J., not participating.

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