Brown 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 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

No. S26A1299

Roy Lee Brown, Jr.

v.

The State

On Appeal from the Superior Court of Cobb County

No. 159402856

Decided: October 14, 2026

PETERSON, Chief Justice.

Roy Lee Brown Jr. is appealing his convictions for malice murder and other offenses stemming from the 2015 fatal shoot- ings of Anthony and Catherine Costner in front of their young child during a drug transaction. 1 He raises claims of trial court

1 The crimes were committed early on the morning of August 6, 2015. In October 2015, a Cobb County grand jury returned an indictment charging Brown with two counts of malice murder, six counts of felony murder (predi- cated on aggravated assault, attempted violation of the Georgia Controlled Substance Act, and possession of a firearm by a convicted felon), two counts of aggravated assault, one count of attempting to violate the Georgia Controlled Substance Act by attempting to acquire roxycontin, one count of first-degree child cruelty, and two counts of possession of a firearm during the commission of a felony. At a May 2017 trial, a jury found Brown guilty on all counts. On May 18, 2017, the trial court sentenced Brown to serve life in prison without the possibility of parole on the malice murder counts, a concurrent term of three years in prison on the drug count, a consecutive term of 20 years in prison for child cruelty, and consecutive terms of five years in prison for each of the firearm counts. The remaining counts merged or stood vacated by operation of

error and ineffective assistance of counsel, all related to the ad- mission of other-acts evidence related to his 1994 convictions for armed robbery. We reject these claims and affirm.

Evidence presented at trial showed the following. 2 In the early morning hours of August 6, 2015, a passerby discovered An- thony, Catherine, and a child, K.C., in a red Pontiac sedan that was sitting in a ditch with the engine still running near 3790 Parks Drive in Powder Springs in Cobb County. The passerby placed a 911 call at 1:44 a.m. Anthony, sitting in the back, ap- peared to be dead with a gunshot wound to the face. Catherine was sitting in the driver’s seat, had been shot, and was lethargic and moaning; she reported that she had been shot by a man other than Anthony. K.C. was in a booster seat in the back. Catherine was transported to a hospital and died shortly after arrival. Two cell phones were located in the vehicle. Text messages from the phones showed the planning of a drug transaction shortly before the 911 call; a phone number that was contacting the phones about a drug deal led police to Brown, also known as Roy Hicks.

K.C., who was three years old at the time of the shootings, did not testify at trial. While being treated at the hospital, she

law. That same day, Brown filed a motion for new trial, which was amended by appellate counsel several times in 2021. The trial court held a hearing on the motion in November 2021, and in April 2024, the State filed a motion seek- ing a ruling on the motion within 30 days. The trial court denied the motion for new trial in an order entered on January 5, 2026. Brown filed a timely no- tice of appeal, and the case was docketed to this Court’s August 2026 term and submitted for a decision on the briefs.

2 Because our analysis involves questions of whether assumed trial court error was harmful and whether alleged deficient performance prejudiced the defense, such that we must consider the strength of the evidence, we lay out the evidence in detail and do not do so in the light most favorable to the jury’s verdicts. See Sinkfield v. State, 318 Ga. 531, 531 n.2 (2024).

told a nurse that her father had screamed and had been hurt by “Trey” and that her mother needed a doctor. Law enforcement ef- forts to obtain information from K.C. via formal interview were largely unsuccessful, although she did repeat to an officer that “Trey” had hurt her father.

Although no eyewitnesses to the shootings testified, sev- eral witnesses testified about events surrounding the shootings. James Townsend, who considered Catherine to be like a daugh- ter, testified that on the night of August 5, 2015, Townsend ex- changed text messages with Anthony about Anthony coming to Townsend’s home at 3790 Parks Drive. Anthony offered to pay Townsend $100 in exchange for permission to use Townsend’s home as a meeting place to sell someone “Roxies,” which he also referred to as “Roxycodeine” and “oxycodone.” Anthony reported that he was going to a nearby Waffle House on Lindley Circle first. Brown’s friend Raymond Webb and Webb’s son, Demarco Thomas, both testified at trial for the State about a plan for Brown to cheat Anthony in a drug deal. Thomas testified as fol- lows. Brown showed up at Webb’s house on the evening of August 5, driving a silver Cadillac SUV and carrying a Smith & Wesson hammerless revolver. Brown texted with someone 3 to set up a purchase of “some pills,” with Brown identifying himself as “Trey” to the seller and Webb vouching for Brown. Brown planned to give the seller less money than agreed and “snatch” the pills from the seller. Brown, Webb, and Thomas set out in Brown’s SUV, and made various stops, including meeting up with the seller at a Waf- fle House parking lot and a BP gas station. Before meeting up

3 Thomas testified that he did not know the Costners.

with the seller, the group dropped off Webb at a McDonald’s, be- cause they thought the seller might recognize him. Thomas even- tually dropped off Brown at the BP station, where he got in the seller’s car, still carrying his gun, before it was driven away. Thomas picked up Webb, and they parked at a nearby business to wait for Brown. Brown later reappeared, limping up the street and bleeding. Brown reported that “[t]he guy shot him” while they attempted to make the drug exchange, “[s]o he shot them.” The three drove down the street looking for pills that Brown had dropped, then went to Webb’s house, before going back out in Webb’s rental Jeep to look for Brown’s phone (which they found in the street, broken) and gun (which they could not find). The group used Webb’s car to look for the phone and gun for fear the police might be looking for the Cadillac, and at one point when Thomas and Brown were outside of the car looking, they hid in a ditch when a police car came by. Webb and Thomas then dropped Brown off at Atlanta Medical Center.

Webb gave an account similar to Thomas’s about the plan to rob Anthony and the group’s driving around together on the night of the shootings. Webb testified that he had purchased pills from Anthony in the past and vouched for Brown in text messages with Anthony the night of the shootings. Webb testified that Brown used the name “Trey” in communicating with Anthony. Webb said that he gave Brown some of the money to buy the pills, and Brown exchanged the money for smaller bills, to wrap in larger bills, to make it appear to Anthony that Brown was giving him more money than he actually was. Webb claimed that he had seen Brown with a revolver previously but did not see him with a gun on the night of the shootings. Brown ultimately returned to the Cadillac bleeding, without a gun, cell phone, or drugs. Accord- ing to Webb, Brown said that the Costners were “up to something” and “were trying something” and that he “heard a pop, something hit him[,] and he just gave them all he had.”

Webb testified that Brown later called him and told him to take the SUV to Brown’s cousin, Clint Harshaw, and wipe the blood off the seats, which Webb did. Harshaw testified at trial that Brown was driving a Cadillac SUV in August 2015 and that the SUV appeared at Harshaw’s apartment a few days after the shootings. Harshaw told Brown’s sister she needed to have the car moved; the Cadillac ultimately was recovered at her home. At that point there was no blood visible in the back seat. Police also recovered Webb’s rental Jeep, which had a visible dark stain on the front passenger seat. After taking the seat apart, police dis- covered that the sponge of the seat had absorbed a red substance.

At the hospital, Brown was treated for a gunshot wound. He told a nurse that he had been walking down the street, heard a gunshot, then realized he had been shot. Brown claimed to an officer who was called to the hospital that he had been walking along a road, “some guys” walked by and started “talking stuff” to him, Brown “shot them the bird” and waved them off, and then he was shot. Brown was adamant that he did not see who shot him. Told that he was the subject of the investigation of a shooting in Powder Springs, Brown said that he had never been to Powder Springs. 4

Cell phone data and surveillance video were used to corrob- orate the testimony of the State’s witnesses. The State introduced text messages between the phones of Webb and Anthony and be- tween the phones of Brown (identifying himself as “Trey”) and the Costners on the night of August 5, discussing a possible drug deal.

4 Brown’s attorney discounted the importance of this statement deny- ing Brown had been to Powder Springs by pointing to evidence that Brown had been administered morphine at the hospital.

At 1:18 a.m. on August 6, Catherine’s phone sent a message (pur- portedly from Anthony) to Brown’s phone observing that Brown was not by himself. At 1:20 a.m., Brown’s phone responded that his nephew was driving him because he did not have a driver’s license. Catherine’s phone sent a message to Brown’s phone at 1:23 a.m. telling Brown to enter their car and have his nephew wait at the Waffle House. At 1:24 a.m., Brown’s phone responded, “Ok.” Records also showed that at 1:34 a.m., Catherine’s phone communicated with that of Thomas, who later reported that Brown began using his phone when Brown’s cell phone battery died. Cell phone records showed that the locations of Webb’s, Thomas’s, and Brown’s cell phones generally were consistent with the testimony of Webb and Thomas about the location and timing of events in the early morning hours of August 6. Cell phone rec- ords showed that Brown’s phone was pinging off a tower covering the crime scene just before 1:30 a.m. on August 6.

Surveillance video footage from the Waffle House was ad- mitted at trial and published to the jury; the video showed a red sedan, followed by a silver SUV, entering the parking lot around 1:30 a.m., and the two cars exiting a few minutes later. Surveil- lance video from the BP was admitted at trial and published to the jury. Webb in his testimony identified the Costners’ Pontiac and Brown’s Cadillac in the BP surveillance video. Surveillance video from the morning of August 6 at Atlanta Medical Center was also admitted and shown to the jury. Thomas identified him- self, Webb, and Webb’s rental Jeep, as well as Brown getting out of the passenger seat around 4:40 a.m. in the Atlanta Medical Center surveillance video, and Webb identified the Jeep, himself, and Thomas in the video.

Police recovered a 9mm handgun, which belonged to Cath- erine’s father, from the front seat of the red Pontiac. They also recovered pill bottles, loose pills identified as Roxicodone, and baggies containing suspected methamphetamine, crack cocaine, and marijuana from the car. There was blood throughout the car and a bullet defect in a rear passenger door; investigators found a spent bullet inside the door. Investigators did not find any shell casings in or around the car, other than one that was stuck in the gun found on the front seat, and the magazine in that gun was missing only one bullet. A detective testified that, given that there were two gunshot victims in the car (Anthony and Catherine), this firearms evidence indicated that a second firearm had been involved. Although they found a holster on the rear passenger floorboard, investigators were not successful in locating a second gun at the crime scene or the gun they believed was the murder weapon. The medical examiner determined that Catherine had a gunshot wound to her torso and a graze to her arm, both caused by one bullet, recovered from the left side of her torso. Anthony had three gunshot wounds: one to his face, one to his hand, and a fatal gunshot wound that entered his left side around his clavicle and settled into the muscles on the right side of his back. Anthony also had a laceration on his scalp consistent with having been pis- tol-whipped. Bullets recovered from Catherine and Anthony dur- ing their autopsies, as well as the bullet recovered from the pas- senger door of their Pontiac, were all fired from the same firearm and were consistent with being fired from a Ruger, Smith and Wesson, or Taurus .38 special or a .357 magnum revolver — not the 9mm handgun found in the car. Catherine’s blood tested pos- itive for several drugs, including methadone, codeine, and higher- than-therapeutic levels of morphine.

In her opening statement, defense counsel told the jury that “Brown is going to admit and the evidence is going to show that he was there at the time,” but Brown “is not responsible” for the victims’ deaths because he “did not go to meet with them that evening to cause anyone any harm.” Brown elected not to testify at trial. Defense counsel acknowledged again in closing that Brown did not claim he was not present for the shootings. In clos- ing, defense counsel challenged the credibility of Webb and Thomas, emphasized evidence that at least one of the Costners was under the influence of drugs at the time of the shootings, sug- gested that the Costners had multiple guns in the car, and pointed to evidence that immediately after the shootings, Brown had claimed “they” had tried to shoot him. The trial court charged the jury on self-defense. The jury found Brown guilty of two counts of malice murder and other counts, and his sentence in- cluded two sentences of life without the possibility of parole.

1. Brown first argues that the trial court erred by ad- mitting evidence that he committed a robbery in 1994. Pretermit- ting whether the trial court erred in this regard, we conclude that any error was harmless.

Prior to trial, the State filed notices of intent to introduce evidence of three other acts pursuant to OCGA § 24-4-404(b) (“Rule 404(b)”). Through the notices, the State expressed an in- tention to introduce the other acts for the purpose of showing proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, accident, or justifica- tion. At a hearing, the prosecutor informed the trial court that the State most likely was going to present evidence of only one of the other acts — a 1994 armed robbery. The State argued that evi- dence of the 1994 armed robbery was admissible because of its similarities to the offenses charged here, including shared intent, and because the 1994 armed robbery was a robbery under the guise of a drug transaction. The State described the shared intent as “[t]o take something, to flex or to rob and to do so with a firearm in both cases, involving a revolver,” adding that “every armed rob- bery necessarily involves an aggravated assault.” Brown objected that the other act was not admissible for a proper purpose and that the probative value of the other act was outweighed by unfair prejudice. In written orders, the trial court determined that the other-act evidence was not admissible for proving identity but was admissible for the purpose of proving Brown’s intent, motive, plan, and absence of mistake, accident, or justification. The trial court stated: “Here, the intent to rob at gunpoint, under the guise of a non-confrontational encounter about a drug deal, is that which moves Defendant to act.”

At trial, the State presented the testimony of Joseph Pom- ponio, who testified that he was robbed at gunpoint by Brown, using a “.38 type revolver,” in Marietta in December 1994. A for- mer Marietta police officer also testified about the incident. In be- tween the two witnesses, defense counsel noted that she was re- newing her pretrial objection to admission of the other-acts evi- dence. The trial court admitted a copy of Brown’s convictions for two counts of armed robbery arising out of the incident. The trial court also separately admitted additional documentary evidence that Brown was a convicted felon based on other convictions, with the exact sentences and offenses of conviction redacted. Both prior to the introduction of the other-acts evidence and in its final charge to the jury, the trial court gave the jury a limiting instruc- tion to the effect that the evidence was to be considered only to show intent, motive, and/or plan, or to disprove accident and/or justification. In its order denying the motion for new trial, the trial court determined that it may have erred in its previous rul- ing to admit the 1994 armed robbery for purposes of showing mo- tive and plan or absence of justification (the latter not being a proper purpose for admitting other-acts evidence), but main- tained that the evidence was properly admitted to show intent.

Under Rule 404(b), although “[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith[,] [i]t may … be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” “A party offering Rule 404(b) evidence must show that (1) it is relevant to an issue in the case other than the defendant’s character; (2) its probative value is not substantially outweighed by its unfair prej- udice under OCGA § 24-4-403; and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defend- ant committed the other act.” Clark v. State, 323 Ga. 569, 574 (2026) (quotation marks omitted). Here, Brown argues that the State did not meet its burden as to the first two requirements.

On appeal, the State does not defend admission of the evi- dence on the merits, instead arguing that any error in admission of the evidence was harmless. “It is fundamental that harm as well as error must be shown for reversal.” Tarver v. State, 319 Ga. 165, 169 (2024) (quotation marks omitted). See also OCGA § 24- 1-103(a) (“Error shall not be predicated upon a ruling which ad- mits or excludes evidence unless a substantial right of the party is affected[.]”). “The test for determining nonconstitutional harm- less error is whether it is highly probable that the error did not contribute to the verdict.” Howell v. State, 307 Ga. 865, 875 (2020) (cleaned up). “In determining whether the error was harmless, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done so.” Id. (quotation marks omitted). The State argues that the admission of the other-acts evidence here was harmless given the strong evidence of Brown’s guilt, the State’s minimal usage of the other-acts evidence, and the trial court’s limiting instructions.

We agree with the State that the evidence against Brown was very strong. Text messages showed that Brown communi- cated with the victims about a drug transaction right before the shootings. Two witnesses testified to Brown’s plan to rob the vic- tims and that Brown confessed to shooting them. The murder vic- tims’ young daughter, who was found in the car shortly after the shootings, reported that her parents had been shot by “Trey,” which was the name Brown used in communicating with the vic- tims. Cell site location and video surveillance evidence were gen- erally consistent with the story relayed by Webb and Thomas, and cell phone records showed that Brown’s phone was pinging off a tower covering the crime scene less than 15 minutes before a 911 call was placed. The firearms forensic evidence indicated that a second gun besides the 9mm firearm found in the car was in- volved in the shootings, indicating that the shootings were not a murder-suicide by way of the recovered 9mm handgun. In short, the evidence that Brown shot the Costners was overwhelming.

Indeed, Brown did not appear to contest this at trial. Alt- hough his lawyer’s theory of the case as presented to the jury was not entirely clear, it appears that he asserted a justification de- fense, premised on Webb’s and Thomas’s testimony suggesting that Brown may have shot in self-defense. But any claim of justi- fication was weak. The defense theory of self-defense was under- mined by the fact that both Catherine and Anthony had been shot; although defense counsel suggested that there had been two guns in the car, only one gun was found in the car by law enforcement, and there was no evidence that both Catherine and Anthony had been shooting. Additionally, Brown’s other statements and ac- tions after the shootings were inconsistent with self-defense.

There was evidence that he attempted to evade police capture by using a different vehicle to look for his gun and phone, hiding when police came by, and arranging for his vehicle to be cleaned of incriminating evidence. See Bell v. State, __ Ga. __, __ (2026), S26A0188, S26A0483, slip op. at 5 (Ga. June 30, 2026) (2026 WL 1868935) (flight from scene of crime is circumstantial evidence of guilt inconsistent with a claim of self-defense). Additionally, Brown lied to police when questioned about the shootings at the hospital, saying he had never been to Powder Springs, which un- dermined the credibility of his claim.

The State’s usage of the other-acts evidence was not as minimal as the State contends on appeal. 5 But the trial court did twice instruct the jury at length that the evidence could be used for only limited purposes and that the jury could not “infer from such evidence that the defendant is of a character who would com- mit such crime,” lessening the harm from any error in admission of the evidence. See Howell, 307 Ga. at 875–76 (admission of Rule 404(b) evidence was harmless where the evidence of defendant’s guilt was strong, the prior act was not likely to inflame the jury’s passion, and the trial court instructed the jury that it could con-

5 The other-acts evidence included two witnesses and documentary ev- idence, and the State made something close to a propensity argument based on this evidence in closing:

No apologies from the State for tracking down a witness from Florida in a 1994 armed robbery case and flying them up here for you to hear that [sic] y’all have a right to know. Do y’all feel that you would want to know more? Is this telling what hap- pened on August 6th of 2015? Of all the people in the world that Powder Springs chose to charge with murder, it’s the guy that did a prior armed robbery. No apologies from the State for

bringing you more evidence.

sider the other-acts evidence only for the limited Rule 404(b) pur- pose that the defendant was on trial only for the offenses charged in the indictment and that the other-acts evidence, by itself, could not be a basis for conviction). In addition, although the prior of- fenses were serious, they paled in comparison to the double mur- der — which was committed in the presence of the murder vic- tims’ three-year-old child — for which Brown stood trial here. See Parker v. State, 309 Ga. 736, 745 (2020) (“[T]his Court has held that even violent crimes, crimes involving firearms, and drug of- fenses were not likely to inflame the jury’s passions in murder cases.”). Most importantly, any claim of self-defense was virtually certain to fail given the strong and largely undisputed evidence that Brown was engaged in the attempt of a felony drug offense at the time of the shootings, precluding his claim of justification. See OCGA § 16-3-21(b)(2) (providing that a person is not justified in using force in defense of self or others if he “[i]s attempting to commit, committing, or fleeing after the commission or attempted commission of a felony”); Bannister v. State, 306 Ga. 289, 292 (2019) (“There was also evidence that Appellant was engaged in a felony drug deal at the time of the shooting, which would pre- clude his self-defense claim, as the jury was properly in- structed.”). The trial court instructed the jury as such, stating that “[a] person is not justified in using force if that person … is attempting to commit, is committing or is fleeing after the com- mission or attempted commission of a felony[.]” Although the trial court did not give further detail in the justification instruc- tions as to what such felonies might be, the trial court did instruct the jury, in the context of defining the felony murder charges against Brown, that a violation of the Georgia Controlled Sub- stances Act is a felony and that it is a violation of that statute “to possess or have under one’s control any quantity of roxycontin, which is a controlled substance, except as authorized by law.” 6 Thus, we conclude that it is highly probable that the admission of the other-acts evidence did not contribute to the verdict. See Mos- ley v. State, __ Ga. __, __ (2026), S26A0741, slip op. at 6 (Ga. June 30, 2026) (2026 WL 1868349) (any error in admission of other-acts evidence was harmless where the evidence of the defendant’s guilt was strong and his claim of self-defense was weak).

2. Next, Brown argues that the trial court’s instruction to the jury on the other-acts evidence was plainly erroneous be- cause it did not limit the applicability of the other-acts evidence to particular counts in the indictment. We conclude that Brown has not met his burden to show plain error.

The defense requested a limiting instruction on the other- acts evidence. Defense counsel requested that the court’s instruc- tion refer to consideration of the charges “in the indictment as opposed to specific counts.” 7 The trial court agreed to say the other-acts evidence was admissible “in order to prove [the State’s] case in this indictment” rather than specific counts, saying, “When they get the actual charge for each crime, they’ll just have to decide what’s an element matter and what’s an issue matter.” Trial counsel responded, “Perfect.” Prior to introduction of the

6 To the extent that the indictment and the trial court’s instructions referred to the drugs at issue differently than the drugs were referred to in the evidence presented at trial, Brown does not raise an issue about this on appeal. At any rate, by returning a guilty verdict on the drug count and the felony murder count predicated on that offense, the jury concluded that Brown had been engaged in a felony when he shot the Costners.

7 The colloquy suggests that the trial court’s draft limiting instruction may have referred specifically to the felony murder counts predicated on pos- session of a firearm by a convicted felon.

other-acts evidence, the trial court gave the jury a lengthy limit- ing instruction that specified, among other things:

In order to prove its case in this indictment, the State must show intent and/or participation in a plan, must negate or disprove accident and/or justi- fication and may show motive and/or plan. To do so, the State will offer evidence of other crimes allegedly committed by the accused. You are permitted to con- sider that evidence only insofar as it may relate to those issues I just mentioned to you and not for any other purpose.

You may not infer from such evidence that the de- fendant is of a character who would commit such crime. The evidence may be considered only to the extent that it may show elements and/or issues that the State is required and authorized in the crimes charged in this case now on trial. Such evidence, if any, may not be considered for you for any other pur- pose.

During the charge conference, the trial court stated its in- tention to give the “same exact” limiting instruction on the Rule 404(b) evidence that the jury had been given earlier in the day. Defense counsel responded, “I understand. Yeah.” In its final charge to the jury, the trial court included language similar to the limiting instruction that it gave before the other-acts evidence was introduced. At the end of the charge to the jury, defense coun- sel stated, “We’ll just go ahead and renew our previous objections for the record.”

Apparently acknowledging that he did not preserve at trial the arguments about the limiting instruction that he raises now, Brown argues that the trial court’s instruction constituted plain error. See Taylor v. State, 316 Ga. 17, 19 (2023) (citing OCGA § 17-8-58(b)) (unobjected-to instruction is reviewed on appeal for only plain error). “To show plain error, an appellant must show that (1) the alleged error was not affirmatively waived, (2) it was obvious beyond reasonable dispute, and (3) it affected the appel- lant’s substantial rights, which ordinarily means showing that it affected the outcome of the trial.” Id. at 19–20 (quotation marks omitted). “If those three showings are made, an appellate court may remedy the error only if it seriously affected the fairness, in- tegrity, or public reputation of judicial proceedings.” Id. at 20 (quotation marks omitted).

Brown’s primary claim about the limiting instruction ap- pears to be that it contained plain error because it did not limit the applicability of the other-acts evidence to particular counts in the indictment. 8 Even putting aside the State’s argument that

8 To the extent Brown also argues that the instruction should have differentiated among multiple other acts, there was evidence of essentially only one other act admitted — the 1994 armed robbery. Although evidence of other felony convictions was admitted for the purpose of the felony murder counts predicated on possession of a firearm by a convicted felon, Brown does not even mention those in his brief to this Court, and, at any rate, the nature of the offenses was redacted from the evidence admitted. To the extent that Brown also is trying to argue that the instruction should have differentiated among the various permissible purposes for use of the other-acts evidence, we can pre- sume that the trial court intended for all of the stated permissible purposes to be equally permissible for any counts to which the other-acts evidence applied. Even with this broadest understanding of the court’s instruction, Brown can- not show plain error, because even if any or all of the stated purposes were not proper purposes, we already have concluded that any error in admission of the evidence was harmless. That means that Brown cannot show that the court’s instruction — which, he contends, may have authorized the jury to consider the other-acts evidence for an improper purpose — affected the outcome of the trial.

Brown has abandoned his argument due to lack of authority in his brief, Brown explicitly requested and approved the trial court’s failure to limit the use of the other-acts evidence to any particular count or counts in the indictment, so his claim is af- firmatively waived. Thus, Brown has failed to meet his burden on plain-error review. See Pena v. State, 297 Ga. 418, 424 (2015) (“[The appellant] has waived plain error analysis of this issue be- cause he requested the charge in question and made no objection to the charge at trial.”).

3. Finally, Brown raises two claims of ineffective assis- tance of counsel related to the other-acts evidence. First, he ar- gues that trial counsel was ineffective in failing to object to the trial court’s instruction on the admission of other-acts evidence. Second, he argues that trial counsel was ineffective in failing to move for a mistrial after the State introduced the other-acts evi- dence when it became clear that the proffered evidence differed from that presented at trial. We conclude that Brown has not met his burden as to either of these claims.

To prevail on an ineffective assistance claim, an appellant must show both that his counsel’s performance was constitution- ally deficient and that he was prejudiced by this deficient perfor- mance. See Strickland v. Washington, 466 US 668, 687 (1984). To establish deficient performance, the appellant must “overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment.” Mims v. State, 304 Ga. 851, 855 (2019) (quotation marks omitted). Our review of counsel’s performance applies an objective reasonableness standard, and is not limited to any sub- jective reasons offered by counsel for her conduct. See Lane v.

State, 312 Ga. 619, 623 (2021). To demonstrate prejudice, the ap- pellant must establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability suf- ficient to undermine confidence in the outcome.” Mims, 304 Ga. at 855 (quotation marks omitted). The failure to meet either of the prongs is fatal to an ineffectiveness claim. See id. In consider- ing an ineffectiveness claim, we review a trial court’s factual find- ings and credibility determinations for clear error and its legal conclusions de novo. See Lawrence v. State, 286 Ga. 533, 534 (2010). (a) Regarding the claim of ineffective assistance of counsel as to the limiting instruction, Brown has failed to show deficient performance. Although he quotes the pattern instruction, Brown has not pointed to any controlling authority that a trial court must give a limiting instruction on other-acts evidence that spec- ifies as to which counts the evidence may be considered, and we have not found any. 9 And counsel’s failure to raise a novel legal

9 We did find one unpublished Eleventh Circuit opinion observing that an other-acts instruction may have been “technically imperfect” given that it was not limited to a particular count. See United States v. Beeman, 386 FApp’x 827, 833 n.1 (11th Cir. 2010). But even to the extent that we would look to Eleventh Circuit precedent on the question before us here, but see Rawls v. State, 310 Ga. 209, 218 (2020) (suggesting that although we look to federal case law for guidance when a provision of Georgia’s current Evidence Code mirrors a federal rule of evidence, we do not do so for federal case law about jury in- structions on evidentiary issues), unpublished Eleventh Circuit decisions do not constitute binding precedent, by that court’s own rules. See Stephens v. DeGiovanni, 852 F3d 1298, 1327 n.31 (11th Cir. 2017). Other decisions that we found merely noted that a trial court’s instruction did limit the evidence to particular counts, without holding that such a limitation was required. See United States v. Springer, 753 FApp’x 821, 829 (11th Cir. 2018) (considering fact that court’s instruction limited use of evidence to one particular count, on

argument does not constitute deficient performance. See Griffin v. State, 309 Ga. 516, 520 (2020).

(b) Brown’s other claim of ineffective assistance of counsel is that counsel should have moved for a mistrial after the other- acts evidence was introduced because admission of the evidence was premised on the notion that the evidence would show that the 1994 armed robbery was undertaken in the context of a drug deal, whereas there was no evidence of that context presented at trial. Brown also fails to establish deficient performance as to this claim. Although counsel was asked at the motion-for-new-trial hearing about the discrepancy between the proffer and the trial testimony, counsel was not asked specifically why she did not move for a mistrial, which makes it difficult for Brown to over- come the presumption that the failure to request a mistrial might have been considered sound trial strategy. See Shaw v. State, 292 Ga. 871, 876 (2013). Moreover, as it is clear that the other-acts evidence did not affect the outcome of the trial given the over- whelming evidence of guilt and the fatal flaw in the justification defense, the trial court would not have erred in denying a motion for mistrial based on the other-acts evidence. See Edwards-Tug- gle v. State, 320 Ga. 558, 566–67 (2024) (trial court does not abuse its discretion in denying a motion for mistrial based on admission of evidence that has a negligible impact on the outcome of a trial); Saffold v. State, 298 Ga. 643, 648 (2016) (“[B]ecause the evidence was harmless, it was not an abuse of discretion for the trial court to decline to grant a mistrial, as a mistrial is required only when

which the defendant was acquitted, in determining that trial court did not abuse its discretion in conducting Rule 403 balancing and that any error in admission of the evidence was harmless); Moore v. State, 307 Ga. 290, 293 (2019) (noting that trial court instructed the jury to limit its consideration of other-acts evidence to whether the State had proven intent as to a particular charge before concluding that any error in admission was harmless).

essential to the preservation of the right to a fair trial.” (quotation marks omitted)). Counsel does not perform deficiently for failing to request a mistrial where the circumstances do not show that a mistrial was required to preserve the defendant’s right to a fair trial, such that the defendant cannot show that a motion for mis- trial would have been granted. See Jackson v. State, 317 Ga. 139, 145–46 (2023). Thus, Brown has not met his burden to show inef- fective assistance of counsel.

Judgment affirmed. All the Justices concur.