JENKINS v. THE STATE (2026)

Terry Elmore Malik Jenkins was convicted by a Morgan County jury of home invasion and other offenses related to attacking an elderly man in his garage as part of a string of thefts and robberies. Jenkins appeals the denial of his motion for new trial, asserting that (1) the evidence against him was insufficient, (2) the verdict was contrary to the principles of justice and equity and strongly against the weight of the evidence, (3) the trial court erred in denying his motion to suppress evidence obtained from his Facebook account, and (4) he received ineffective assistance of counsel. While the trial court should have suppressed the evidence obtained from Jenkins’ Facebook account, we conclude that the trial court's error was harmless beyond a reasonable doubt. Jenkins has otherwise failed to demonstrate any error. Accordingly, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Bell v. State, 366 Ga. App. 743, 744 (884 SE2d 129) (2023). So viewed, a woman entered a gas station in South Carolina during the early morning hours of November 10, 2019, leaving her keys inside her Honda Accord, with her car running because of the cold temperature. The woman kept two firearms, a .380 KelTec and a 9mm SCCY, in her car. When the woman exited the gas station, she noticed that her vehicle had been stolen. The gas station's security cameras recorded the theft of the woman's car, showing an individual entering the woman's car and leaving the gas station. The thief was wearing a neon yellow-green hoodie with the word “Love” written across the front.

Law enforcement posted the video of the auto theft, and Jenkins’ cousin recognized Jenkins as the person stealing the car. While his cousin had never seen Jenkins wear the hoodie shown in the video, she called his mother, who confirmed that Jenkins was wearing a hoodie matching the description that day. A law enforcement officer, who had interacted with Jenkins a month before the auto theft, also recognized Jenkins as the individual in the video stealing the car. Both the cousin and law enforcement officer identified Jenkins at trial as the individual who stole the woman's car.

The next morning, at approximately 3:00 a.m., two males entered a RaceTrac gas station in Henry County, Georgia. Both men were wearing hoodies, including one wearing a neon yellow-green hoodie. The individual in the neon yellow-green hoodie pointed his gun at an employee and demanded that he open the safe. The employee opened the safe and cash drawer, and the individual took everything that was inside. The other assailant put his pistol to the head of a patron of the gas station, pistol-whipped her multiple times, and took her cell phone as well as the keys to her Chevy Equinox. The woman suffered a concussion and a two-inch gash on her head. Law enforcement found the stolen Honda Accord outside the RaceTrac, and learned that the Equinox had been taken.

The Chevy Equinox was equipped with On Star, which allowed law enforcement to disable the vehicle while it was traveling through Morgan County, Georgia on I-20. Law enforcement in Morgan County was dispatched to the disabled Equinox at approximately 4:30 a.m. Police found the Equinox, but the two robbers were no longer in the vehicle. Instead, officers found proceeds from the RaceTrac robbery, including hundreds of dollars’ worth of coins and receipts from the store.

Around the same time, an elderly retiree was in the garage of his home in Morgan County, which was approximately a mile from I-20. As he was putting trash in the trunk of his Lexus, two men grabbed him and tried to make him get inside the trunk of his car. The older man struggled with the two men, who eventually shot him. When the armed men realized the keys to the Lexus were in the trunk of the car, they jumped in the car and left. The elderly man survived his injuries, but required surgery to treat his gunshot wound. Law enforcement arrived shortly thereafter and searched the garage, where they found 10mm shell casings and a discarded sandal. Hoodies matching the description of those worn during the RaceTrac robbery, including the neon hoodie, were discovered in a field nearby.

Because these events were connected by the string of car thefts, law enforcement suspected that Jenkins was involved in all three incidents and used his cell phone information to ping his location in South Carolina. Law enforcement found Jenkins walking up the street and detained him the same day as the home invasion. Police found the SCCY pistol stolen from the Honda, a 10mm bullet, and approximately $400 in cash on Jenkins’ person, and he was taken into custody. Law enforcement suspected that another man, Tyequan Garvin, was involved in the offenses and began looking for him as well. Police found Garvin a few days later, and after a short chase, he was taken into custody. On Garvin's person, police found the KelTec stolen from the Honda, the keys to the elderly man's Lexus, a 10mm pistol, and some money.

Law enforcement continued their investigation and learned that ballistics from the 10mm handgun recovered from Garvin matched the shell casings recovered from the home invasion in Morgan County. Police also found a sandal inside a residence where Garvin had stayed after the offenses which appeared to be a match to the one recovered at the Morgan County crime scene. Garvin and Jenkins were using their cell phones throughout the time of the offenses, and law enforcement were able to use location data to show the pair traveling together from South Carolina, through Henry County and Morgan County, and back to South Carolina at the relevant times of the offenses.

Jenkins was indicted along with Garvin for home invasion, hijacking a motor vehicle, armed robbery, and aggravated assault related to the events in Morgan County. Each was also indicted with a single count of possession of a firearm by a convicted felon. A Morgan County jury found Jenkins guilty of home invasion, hijacking a motor vehicle, and armed robbery, and he was sentenced for those offenses.¹ The jury acquitted Jenkins of the aggravated assault charge and the State dismissed the possession of a firearm charge. Jenkins filed a timely motion for new trial, later amended, which the trial court denied. Jenkins appeals the denial of his motion for new trial. We find no reversible error.

1. Jenkins first contends that the evidence was insufficient to allow a jury to convict him of the offenses charged. Specifically, Jenkins asserts that (1) because he was not identified by the elderly man as one of his assailants he cannot be convicted of any offenses related to the Morgan County home invasion, and (2) because the offenses took place inside a carport, he cannot be convicted of home invasion.

When reviewing the sufficiency of the evidence, the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. [Appellate courts] do[ ] not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence.

Smith v. State, 304 Ga. 752, 754 (822 SE2d 220) (2018) (citations and punctuation omitted).

(a) Regarding identity, Jenkins asserts that the evidence presented at trial is insufficient to authorize a rational jury to convict him of the indicted offenses because the Morgan County victim did not identify him at trial.

As a threshold matter, in support of this claim of error, Jenkins has made no citation to the record and cited only the most bare-bones legal authority regarding the States’ burden of proof. Because Jenkins has failed to provide any meaningful argument to support this contention, it is abandoned. See Court of Appeals Rule 25(d)(1) (“Any enumeration of error that is not supported in the brief by citation of authority or argument may be deemed abandoned.”); In the Interest of K. R., 367 Ga. App. 668, 677(2)(b) (888 SE2d 204) (2023) (“[W]e have held that an argument is abandoned if it provides general citations to the ‘most basic legal authority’ without providing any legal authority or argument related to the specific facts of [the] case.”); Brittain v. State, 329 Ga. App. 689, 704(4)(a) (766 SE2d 106) (2014) (“[A]n appellant must support enumerations of error with argument and citation of authority, and mere conclusory statements are not the type of meaningful argument contemplated by our rules.”) (citation and punctuation omitted); Dixon v. MARTA, 242 Ga. App. 262, 266(4) (529 SE2d 398) (2000) (“Rhetoric is not a substitute for cogent legal analysis, which is, at a minimum, a discussion of the appropriate law as applied to the relevant facts.”). As noted above, Jenkins was identified in trial, and he has provided no meaningful argument that this identification was insufficient. Thus, this claim of error leaves us with nothing to review.

(b) Jenkins also attacks the sufficiency of the evidence for his home invasion conviction, asserting that the State failed to prove that he entered a dwelling.

A person commits the offense of home invasion in the first degree when, without authority and with intent to commit a forcible felony therein and while in possession of a deadly weapon or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury, he or she enters the dwelling house of another while such dwelling house is occupied by any person with authority to be present therein.

OCGA § 16-7-5(b). For the purposes of the home invasion statute, the term dwelling is defined as “any building, structure, or portion thereof which is designed or intended for occupancy for residential use.” OCGA §§ 16-7-1(a)(1), 16-7-5(a).

Jenkins argues that the garage at issue was an “open-air carport” and such a structure does not satisfy the statutory definition of a dwelling, but he provides no citation to the record to support his characterization of the structure. As with his argument above, Jenkins has failed to supply this Court with any meaningful citation to authority, citing only the statutory definition of home invasion and dwelling. While Jenkins contends that “there is no case law directly on point regarding whether an open-air carport satisfies the definition of ‘dwelling’ to constitute a home invasion charge,” he makes no effort to cite any of the myriad cases which have wrestled with the definition of dwelling in this context, including any of the cases regarding garages. See, e.g., Williamson v. State, 305 Ga. 889, 892(1) n. 5 (827 SE2d 857) (2019) (noting, in the context of burglary, that an ordinarily enclosed garage is a dwelling, but suggesting that a garage described as a “shed, [ ] workshop, or simply outside” and was open on at least one side may not qualify as a dwelling) (punctuation omitted).

Because Jenkins has failed to make any meaningful legal argument that the garage was not a dwelling, this argument is abandoned for the same reason as in Division 1(a). “As an appellate court, we should not speculate or make arguments on an appellant's behalf; to do so would improperly change this Court's role from disinterested decision-maker to appellate advocate.” Muniz v. State, 375 Ga. App. 140, 141–42(1)(b) (914 SE2d 358) (2025) (citation and punctuation omitted).

Moreover, based on the record before us,² we cannot say that the garage at issue was not a dwelling. The garage does not appear to have been an “open-air carport” as Jenkins asserts, but rather a complete, attached garage sharing external siding, a wall, and a roof with the victim's home. This Court has repeatedly sustained convictions for first degree burglary, which shares the same definition of “dwelling” as home invasion,³ when a garage attached to a home is burgled. See, e.g., Davis v. State, 275 Ga. App. 714, 715–17(1) (621 SE2d 818) (2005). We note that Jenkins also argues that even if the garage was a dwelling, there was no evidence that he entered into the garage; however, that assertion is belied by the record where the victim testified that his assailants “jumped in[to]” his Lexus, which was parked inside the garage. Because there was competent testimony that both Jenkins and Garvin entered the garage, and the garage was a dwelling for the purposes of the home invasion statute, Jenkins’ sufficiency argument would fail even if it was not abandoned.

2. Jenkins next argues that the “verdict in this case was contrary to the principles of justice and equity and decidedly and strongly against the weight of the evidence[,]” referring to the general grounds by which a trial court can sit as the “thirteenth juror.” See OCGA §§ 5-5-20, 5-5-21. “However, the decision to grant or refuse to grant a new trial on the general grounds is vested solely in the trial court. And when a defendant appeals the trial court's denial of a motion for new trial, an appellate court does not review the merits of the general grounds.” Thrift v. State, 310 Ga. 499, 503(2) (852 SE2d 560) (2020) (citations, punctuation, and emphasis omitted). Instead, if the evidence is sufficient to sustain a conviction, we merely review whether the trial court exercised its discretion. See Myers v. State, 313 Ga. 10, 13–14(1) (867 SE2d 134) (2021). Here, the trial court's order cited the relevant statutes, properly described the standard of review, and referenced those standards in exercising its discretion. Because the trial court understood its discretionary authority and exercised it properly, this enumeration is meritless.

3. Jenkins next asserts that the trial court abused its discretion in denying his motion to suppress the search warrant for his Facebook records. Specifically, Jenkins argues that the scope of the records sought by law enforcement was impermissibly broad. Under the specific circumstances before us, we agree.

“In reviewing the trial court's grant [or denial] of [a] motion to suppress, we apply the well-established principles that the trial court's findings as to disputed facts will be upheld unless clearly erroneous and the trial court's application of the law to undisputed facts is subject to de novo review.” State v. Wilson, 315 Ga. 613 (884 SE2d 298) (2023) (citation and punctuation omitted). See State v. Palmer, 285 Ga. 75, 78 (673 SE2d 237) (2009).

Shortly after Jenkins and Garvin were arrested, law enforcement sought a search warrant for each suspects’ Facebook records. The search warrant affidavit laid out the facts of the offenses described above and how both Jenkins and Garvin were linked to these offenses. The GBI agent seeking the warrant then averred:

In your Affiant's experience, he has learned that Instagram and Facebook keep records of which Instagram or Facebook accounts are accessed from the same electronic device, such as the same computer, through “machine cookies,” which are small pieces of text sent to the user's device when visiting Instagram or Facebook. Your Affiant is asking for the identity of all other accounts that were accessed by each user's device to identify other potential “secretive” accounts that may be utilized by GARVIN or JENKINS[.]

Your Affiant is requesting Facebook records for GARVIN's account and JENKINS's account to review any possible conversations the subjects had discussing or documenting the illegal activities they were involved in. There may also be photographs, videos, and location information which coincides with the illegal activities mentioned above.

Specifically, the GBI agent sought the following records related to both men:

• Any customer/subscriber information, payment information, device location information, and account information[.]

• Activation date and IP address information beginning from the inception of the accounts to present[.]

• Any profile pictures, any pictures and videos uploaded to the account and comments associated with those pictures or videos from the inception of the accounts to present[.]

• Any and all incoming, outgoing, draft, and trash PRIVATE messages, to include the UID/Vanity for the other users that the target user communicated with for the accounts from January l, 2019 until November 12, 2019, including all photograph and video attachments associated with the private messages.

• Machine cookies associated with the accounts[.]

• Other Facebook accounts linked to these accounts by the same e-mail address, IP address, etc.

(emphases omitted.) After reviewing the affidavit and considering the sworn testimony from the GBI agent affiant, a superior court judge signed the search warrant authorizing the search of both men's Facebook accounts. Law enforcement found Facebook messages between Jenkins and Garvin which indicated Jenkins’ intention to steal a car in South Carolina and for the pair to go to Atlanta. There were also messages between Jenkins and three women, indicating he was going to or was in Atlanta to attend to business and urgent messages from Jenkins to another man around the time the Equinox was disabled indicating he needed to be picked up.

(a) Jenkins challenged the validity of the search of his Facebook records in a pretrial motion to suppress. Among his complaints regarding the warrant, Jenkins asserted that the warrant contained no limitation to the extent to which law enforcement could search his records, and therefore the warrant was not sufficiently particularized to survive constitutional scrutiny. A pre-trial hearing was held on Jenkins’ motion, where the trial court initially voiced its concern regarding the specificity of the warrant and indicated that it would grant Jenkins’ motion to suppress the Facebook records. However, after revisiting the matter during trial, the trial court determined that the warrant contained enough limitations and specificity to conform with the requirements of the Fourth Amendment and denied Jenkins’ motion.

As our Supreme Court has recently set forth:

The Fourth Amendment to the United States Constitution requires that a search warrant particularly describe the article or articles sought. In addition to requiring that officers have enough guidance to locate and seize only those items the warrant authorizes them to seize, this particularity requirement also prevents general searches—that general, exploratory rummaging in a person's belongings by the government that has been rejected since the founding as a violation of fundamental rights. The particularity requirement is applied with a practical margin of flexibility, depending on the type of property to be seized, and a description of property will be acceptable if it is as specific as the circumstances and nature of activity under investigation permit. The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.

State v. Wilson, 315 Ga. at 614–15. (citations and punctuation omitted). “[T]he Fourth Amendment's particularity requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit[.]” Conrad v. State, 316 Ga. App. 146, 148(1) n.10 (730 SE2d 7) (2012).

While case law related to searches of this type of electronic record has only recently begun to develop in Georgia, our Supreme Court has squarely rejected warrants which broadly target a suspect's data without language sufficiently limiting the search of the records to evidence linked to the specific offenses supported by probable cause. Wilson, 315 Ga. at 614–15. “The particularity requirement is applied with a practical margin of flexibility, depending on the type of property to be seized, and a description of property will be acceptable if it is as specific as the circumstances and nature of activity under investigation permit.” Id. at 615. We are mindful that an otherwise fatally broad search warrant can be saved by the inclusion of limiting language tying the records to evidence relevant to the offenses supported by probable cause in the affidavit. See Civil v. State, 375 Ga. App. 31, 35(1) (912 SE2d 709) (2025); see also Westbrook v. State, 308 Ga. 92, 97(3)(a) n. 5 (839 SE2d 620) (2020).

The State has asked this Court to consider cases such as Civil, 375 Ga. App. at 35(1), to support the denial of Jenkins’ motion to suppress; however, the Civil case is easily distinguished. In Civil, law enforcement began an undercover operation posing as an underage girl on a website frequented by escorts and those seeking escorts. Id. at 31. A man solicited a “girl[,]” drove to a meet, was arrested, and his two phones were seized. Id. at 31–32. Law enforcement sought a search warrant for the man's phones, seeking “all texts, all video files and photographs, all applications, all files that would show ownership, all search history, all call logs, all files that contain data, and all e-mails including Facebook Messenger ․ [w]hich is evidence that a crime has been or is being committed, to wit: [OCGA § ] 16-4-1 [c]riminal [a]ttempt [t]o [c]ommit [a] [f]elony - [OCGA §] 16-4-1.” Civil, 375 Ga. App. at 34(1) (emphasis added). The search warrant affidavit included “facts of the case, including the date of the offense[.]” Id. at 33. The search warrant application also noted the affiant's knowledge, training, and experience caused him to believe “relevant evidence would be found on these phones.” Id. at 32-33.

This Court determined that because the search warrant made reference to the specific phone, the crime at issue, and the specific date on which the crime was allegedly committed, the warrant “was sufficiently particular to notify the detective, the analyst, and/or any other executing officer of what evidence he or she was authorized to obtain from Civil's phones and to prevent a general exploratory search of the other downloaded content for evidence of unrelated crimes or other unauthorized purposes.” Civil, 375 Ga. App. at 35(1). This Court affirmed the denial of the defendant's motion to suppress based on particularity concerns. Id. at 36(1).

The instant warrant contains no language limiting the search of Jenkins’ records only to data relevant to the offenses described in the affidavit. Instead of including language expressly limiting the scope to data which is evidence of such offenses, this warrant, at most, restricts the search of Jenkins’ messages to evidence of “the illegal activities [he was] involved in.” We conclude that this language, unlike in Civil, does not restrict the search of electronic records to the illegal activity described in the warrant, but rather could encompass any illegal activities law enforcement could discover. This is exactly the type of general rummaging the Fourth Amendment prohibits. Wilson, 315 Ga. at 614–15.

The State, however, urges this Court to conclude that, by temporally limiting the scope of the search, this warrant is sufficiently particularized to pass constitutional muster. As noted above, the warrant only authorizes searches of Jenkins’ messages from January 1, 2019, to November 12, 2019.⁴

Pretermitting whether a temporal restriction, without limiting the search to the described offenses, could ever be sufficient to comport with the Fourth Amendment, we conclude that, in this instance, the ten-month period for which law enforcement sought messages was impermissibly broad. “[T]here is in addition the requirement that the description be sufficiently narrow in the sense of not outrunning the probable cause showing.” Conrad, 316 Ga. App. at 148(1) (citation and punctuation omitted). Where a warrant is limited by date ranges, such as here, they must be “sufficiently particular under the circumstances” of the case. Perez v. State, 316 Ga. 433, 442–43(3)(a) (888 SE2d 526) (2023) (concluding date ranges in a warrant of 45 days and 30 days were permissible because “the date ranges in the search warrants were as specific as the circumstances and nature of the activity under investigation permitted”).

Here, the State points to absolutely nothing in the record that would support rummaging through ten months of Jenkins’ messages in search of evidence of illegal activity that occurred over few days. This Court has found no Georgia cases which have authorized searching social media messages for such a great length of time. And if such a period of time was ever authorized, there would have to be facts in the record to demonstrate that the date ranges were as specific as law enforcement could make them. See Perez, 316 Ga. at 443(3)(a). We have independently reviewed the affidavit, all pretrial hearings, the revisiting of this matter during trial, and the hearing on Jenkins’ motion for new trial, and we can find absolutely no facts adduced which could support such an exceptionally broad length of time. Accordingly, this search warrant was impermissibly overbroad, and we conclude that the trial court erred in failing to suppress the evidence before trial.

(b) This conclusion, however, does not end our inquiry because even constitutional error does not mandate a new trial if the error is harmless beyond a reasonable doubt.⁵ Taylor v. State, 322 Ga. 779, 782(3) (922 SE2d 1) (2025). Such constitutional errors can be found harmless where other, properly admitted, evidence of the accused's guilt is substantial. Id. at 783(3); Hinkson v. State, 310 Ga. 388, 402–03(6) (850 SE2d 41) (2020). This is especially true where the tainted evidence admitted at trial was cumulative of legitimately discovered evidence. Hinkson, 310 Ga. at 402–03(6).

The evidence in this case was overwhelming against Jenkins. His cousin and a law enforcement officer identified him as the individual who was caught on video stealing the Honda Accord. He did so wearing a unique clothing item, which he was seen wearing as he left his mother's home before the armed robberies. Cell phone location data, which is not challenged on appeal, showed Jenkins and Garvin traveling to all the relevant crime locations at the relevant times together. Jenkins’ neon hoodie was found near the Morgan County crime scene. Jenkins was discovered with proceeds of the Henry County armed robbery only hours after the Morgan County home invasion.

In addition the overwhelming evidence of guilt, the messages obtained as a result of the overbroad warrant were merely cumulative of other evidence. The location data showing the pair traveling together at the same times and locations as the armed robberies is much greater evidence of a conspiracy between the two men than their vague plans over Facebook messages, especially when both men were discovered with proceeds of those offenses. Similarly, the messages regarding Jenkins’ whereabouts to the other four individuals are wholly cumulative of the cell phone location data showing where he was during the commission of these offenses.

Given the overwhelming evidence of guilt, and the cumulative nature of the tainted evidence provided to the jury, we conclude that the introduction of the Facebook records was harmless beyond a reasonable doubt.

4. Finally, Jenkins contends that he received ineffective assistance of counsel. Jenkins, however, has again failed to show error. “An ineffective assistance of trial counsel claim has two components: the defendant must show both that his lawyer's performance was deficient and that this deficiency prejudiced the defense.” Humphrey v. Williams, 295 Ga. 536, 550(2)(a) (761 SE2d 297) (2014) (citing Strickland v. Washington, 466 US 668, 687(III) (104 SCt 2052, 80 LE2d 674) (1984)). “To establish prejudice, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Humphrey, 295 Ga. at 551(2)(a) (citation and punctuation omitted). “Importantly, should a defendant fail to meet his burden on one prong of this two-prong test, we need not review the other prong.” Sambou v. State, 358 Ga. App. 645, 656(4) (854 SE2d 392) (2021) (punctuation omitted). Jenkins, inexplicably, has again failed to provide any meaningful authority to support his argument, providing only the most bare-bones authority regarding the test for ineffective assistance but not a single case to support his assertion that his trial counsel's performance was deficient or that any deficiency prejudiced him. Consequently, this enumeration is abandoned for the same reasons provided in Division 1(a). In the Interest of K. R., 367 Ga. App. at 677(2)(b).

Even if this claim was not abandoned, it is meritless. Jenkins argues that his trial counsel was ineffective for failing to investigate the dispositon of his South Carolina charges related to stealing the Honda Accord. The Honda car theft was admitted as intrinsic evidence of the Morgan County offenses. At Jenkins’ motion for new trial hearing, his appellate counsel tendered documents evidencing that, before the instant trial, the South Carolina charges of grand larcency for stealing the Honda were dismissed because Jenkins had “pled to related charges” or “pled to another charge[.]” It is unclear from the record if Jenkins’ trial counsel was aware of this charge being dismissed, as he indicated that he did not remember what he was told or when he was told it regarding the South Carolina disposition. It is also unclear from the record what related offense Jenkins pleaded guilty to committing.

Pretermitting whether Jenkins’ trial counsel was deficient,⁶ Jenkins cannot demonstrate he was prejudiced by his trial counsel's failure to obtain this disposition. While Jenkins argues that “[a]ny evidence weakening the connection between Jenkins and the Accord would have the domino effect of weakening the appearance he had been involved in the subsequent crimes[,]” we fail to see how the dismissal of the charges would in any way weaken that connection. The dismissal of Jenkins’ South Carolina charges do not appear to be based on his innocence, but rather because he in fact pleaded guilty to crimes related to his theft of the Accord. Instead of advancing Jenkins’ defense, these documents appear to be inculpatory and we fail to see how his defense counsel's failure to obtain inculpatory evidence (which was not presented by the State at trial) could possibly prejudice him. Consequently, even if this claim of error was not abandoned, Jenkins has fallen far short of demonstrating that he was prejudiced by his trial counsel's performance.

FOOTNOTES

1.   Garvin was convicted of home invasion, hijacking a motor vehicle, armed robbery, and aggravated assault and was sentenced for those offenses; however, he is not a party to this appeal.

2.   While Jenkins failed to cite to the record regarding the nature of the garage, the State has provided record citations to photographs of the garage which were introduced a trial.

3.   OCGA §§ 16-7-1(a)(1), 16-7-5(a).

4.   We note that the State fails to address how this temporal restriction on messages could save the warrant which had no such restrictions for most of the records it sought. In fact, the warrant explicitly seeks other information regarding the account from “the inception of the accounts to present[.]”

5.   We note that the trial court's order did not consider harmless error, and the State has not argued that the error is harmless. While the State bears the burden of demonstrating that an error is harmless, we can examine the record to determine whether that standard is met without sending this case back to the trial court to have it rule on harmless error in the first instance. See State v. Hightower, 236 Ga. 58, 61 (222 SE2d 333) (1976) (“[A]n appellate court, using the appropriate standard, may find in a particular case that error committed by the trial court was constitutionally harmless, without remanding the case for further proceedings.”).

6.   See Humphrey, 295 Ga. at 552(2)(c) (concluding trial counsel was deficient for failing to investigate the disposition of criminal charges related to similar transactions, where an investigation would have revealed valuable impeachment evidence).

Hodges, Judge.

Judgment affirmed. Barnes, P. J., and Markle, J., concur.