Adonis McKisic v. State

FOURTH DIVISION
MCFADDEN, P. J.,
WATKINS and PADGETT, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules

May 20, 2026

In the Court of Appeals of Georgia
A26A0814. MCKISIC v. THE STATE.

MCFADDEN, Presiding Judge.

After a jury trial, Adonis McKisic was convicted of robbery, OCGA § 16-8-40,

and battery, OCGA § 16-5-23.1. On appeal, McKisic challenges the sufficiency of the

evidence, but the trial evidence authorized the jury to find beyond a reasonable doubt

that he committed the charged offenses. McKisic also claims that the trial court

improperly expressed an opinion by explaining to the jury McKisic’s absence from the

courtroom during the trial, but he did not make a timely objection on that specific

ground and he has not shown plain error. So we affirm.

1. Sufficiency of the evidence
In considering a challenge to the sufficiency of the evidence, “we do not weigh

the evidence or determine witness credibility, but only determine whether a rational

trier of fact could have found the defendant guilty of the charged offenses beyond a

reasonable doubt.” Beamon v. State, 348 Ga. App. 732, 737(3) (824 SE2d 624) (2019)

(citation and punctuation omitted).

So viewed, the trial evidence showed that on September 28, 2016, the victim

was walking through an apartment complex to visit a friend when she encountered

McKisic. She was familiar with McKisic and had spoken to him earlier that day.

McKisic asked the victim for 15 cents. She refused, and McKisic told her she

“need[ed] a beating.” McKisic then struck the victim in the face, knocking her to the

ground, and continued hitting and kicking her. The victim briefly lost consciousness

and sustained injuries to her head, eye, elbow, and torso. McKisic took from the

victim a change purse, containing cash and credit cards, that she had been holding in

her hand.

After regaining consciousness, the victim got to her feet and began walking

away before falling to the ground. She was afraid that McKisic was going to strike her

again. She called 911 and law enforcement officers responded to the scene.

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The victim’s boyfriend also arrived and found McKisic in a nearby apartment.

The boyfriend asked McKisic why he had attacked the victim and he replied that he

was “geeked up[,] ... had been drinking[, and had] made a mistake.” Shortly

thereafter, McKisic left the apartment, the victim identified him to law enforcement

as her assailant, and he was arrested.

McKisic asserts that this evidence was insufficient to authorize his conviction

on either of the charged offenses. The offense of robbery is committed, among other

ways, “when, with intent to commit theft, [a person] takes property of another from

the person or the immediate presence of another ... [b]y use of force; ... or by placing

such person in fear or immediate serious bodily injury to himself or to another[.]”

OCGA § 16-8-40(a)(1),(2). The offense of battery is committed when a person

“intentionally causes substantial physical harm or visible bodily harm to another.”

OCGA § 16-5-23.1(a).

McKisic’s only argument with regard to sufficiency is that the victim’s

identification of him as the perpetrator was not credible. But the credibility of

witnesses is an issue for the jury, not this court, to resolve. Wallace v. State, 309 Ga.

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823, 824(1) (848 SE2d 72) (2020). The evidence authorized the jury to find McKisic

guilty of the charged offenses.

2. Judicial comments about McKisic’s absence from the courtroom

McKisic argues that the trial court erred in comments made to the jury about

McKisic’s absence from the courtroom. We disagree.

McKisic refused to attend his trial. He repeatedly told the trial court that he

would not participate and engaged in disruptive behavior, including verbal outbursts

and derogatory or abusive comments directed at the trial judge, the prosecutors, and

court personnel. His counsel proposed that the trial go forward without McKisic’s

attendance, reasoning: “I think his case is better served if he’s not sitting here having

outbursts with the jury or antagonizing the jury pool or disrespecting the court or

prosecution. ... [W]e have seen enough that Mr. McKisic would not have a fair trial

were he sitting here, even though it’s his right to sit here.”

Before voir dire, the trial court stated to the prospective jurors:

Mr. McKisic is here in the courthouse. He has decided he’s not going to
join us today. He is in the courthouse, and the court will have
communication with him throughout the course of the trial, and if he at
any time chooses to change his mind and join us, he will be brought to

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the courtroom immediately. However, at this time he is voluntarily
absenting himself from the trial, and so we’re going to go forward.

After the jury was selected, the trial court again mentioned McKisic’s absence in the

context of instructing the jury not to discuss the case with others, stating:

It would be very easy to go home and say gee, I’m trying this case and the
defendant is not there and it’s kind of odd. It is odd. But that’s his
choice, and I can just tell you that Mr. McKisic has been in the
courtroom twice today. I have spoken to him, and he is welcome to come
at any time. And he is in the courthouse, so all he has to do is say I want
to come, and he’s here. But we are proceeding.

And again, at the start of the next day of trial, the trial court said to the jury: “I have

had the opportunity to speak to Mr. McKisic once again this morning, and he has

reaffirmed his position. So we’ll proceed.”

McKisic argues that these comments by the trial court constituted improper

expressions of the trial court’s opinion as to what has or has not been proved, in

violation of OCGA § 9-10-7. As an initial matter, we note that OCGA § 9-10-7 is part

of our Civil Practice Act. There is a corresponding provision in our code of criminal

procedure, OCGA § 17-8-57, that applies to criminal cases. In his motion for new trial,

McKisic did not argue to the trial court that OCGA § 9-10-7 should apply instead of

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OCGA § 17-8-57, and, indeed, the trial court applied OCGA § 17-8-57 in denying the

motion for new trial. Like the trial court, we will consider this claim under OCGA §

17-8-57, rather than OCGA § 9-10-7.

OCGA § 17-8-57(a)(1) provides that “[i]t is error for any judge, during any

phase of any criminal case, to express or intimate to the jury the judge’s opinion as to

whether a fact at issue has or has not been proved or as to the guilt of the accused.”

Citing Haymer v. State, 323 Ga. App. 874, 879(2) (747 SE2d 512) (2013) (physical

precedent only), McKisic argues that any such expression of opinion by the trial court

is reversible error. But Haymer is not binding precedent. See Court of Appeals Rule

33.2(a)(2). Moreover, Haymer was “decided before OCGA § 17-8-57 was amended

in 2015 to include the plain error analysis.” Rogers v. State, 369 Ga. App. 543, 548(3)

n.8 (894 SE2d 85) (2023).

Under the current version of OCGA § 17-8-57, an objection to a violation of the

statute must be made “timely” and must “inform the court of such specific objection

and the grounds for the objection[.]” OCGA § 17-8-57(a)(2) (emphasis added). The

failure to do so “shall preclude appellate review, unless such violation constitutes

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plain error which affects substantive rights of the parties.” OCGA § 17-8-57(b).1 See

Adams v. State, 322 Ga. 155, 161(3)(a) n.6 (holding that under OCGA § 17-8-57(b),

appellate review of an allegedly improper comment by the trial court is limited to plain

error where the appellant did not object to the comment at trial).

Before the start of the trial, the trial court informed counsel that he would make

a statement to the jury regarding McKisic’s absence from the courtroom. McKisic’s

counsel did not object to the making of a statement generally; he objected only to the

trial court’s plan to tell the jury the absence was voluntary. In doing so, counsel did

not explain his objection or argue that it was an improper expression of the trial

court’s opinion or a violation of OCGA § 17-8-57. Later, during a break in voir dire,

McKisic’s counsel renewed the objection, expressing concern that jurors might infer

guilt from the fact of McKisic’s absence but again not mentioning an improper

opinion by the trial court or a possible violation of OCGA § 17-8-57. He made no other

objections to the trial court’s comments.

1
The exception to plain error review, requiring the grant of a new trial if the
trial court expressed an opinion as to the guilt of the accused, OCGA § 17-8-57(c),
does not apply here, because McKisic has not argued that the trial court’s statements
in this case were expressions of opinion as to his guilt.
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Under these circumstances, we find that McKisic did not timely object to the

statements on the ground that they were improper expressions of the trial court’s

opinion as to what has or has not been proved, in violation of OCGA § 17-8-57(a)(1).

So, under OCGA § 17-8-57(b), we review the alleged violation for plain error.

To show plain error, McKisic “must identify a legal error that was not

affirmatively waived, was clear and obvious beyond reasonable dispute, likely affected

the outcome of the trial court proceedings, and seriously affected the fairness,

integrity, or public reputation of judicial proceedings.” Roberts v. State, 305 Ga. 257,

263(4) (824 SE2d 326) (2019). We need not analyze all four prongs of this test if “the

[appellant] has failed to establish one of them.” Jones v. State, 314 Ga. 466, 469(2)

(877 SE2d 568) (2022) (citation and punctuation omitted).

McKisic has not established that the trial court’s comments in this case

constituted an error at all, much less an error that was clear and obvious beyond

reasonable dispute. Trial courts may explain a defendant’s absence to the jury without

running afoul of OCGA § 17-8-57, see Williams v. State, 183 Ga. App. 373, 375(2) (358

SE2d 914) (1987), and we do not construe the specific wording used by the trial court

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in this case to express or intimate the trial court’s opinion. So McKisic has not shown

plain error.

Judgment affirmed. Watkins and Padgett, JJ., concur.

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