Although useful in demonstrating that Lebis was aware of the nature of the charges against her, it was not necessary for the indictment to charge Lebis with being a party to the crime in order to prove her culpability in that manner. See Butler v. State , 273 Ga. 380, 384, 541 S.E.2d 653 (2001) ; see also Davis , 287 Ga. App. 786, 787, 653 S.E.2d 104 (2001) (finding no fatal variance even where defendant not charged as party to a crime). Although Lebis raised sufficiency of the evidence rather than a "fatal variance" between the language of the indictment, which charged joint possession, and the proof at trial, we also note that any suggestion of such a fatal variance would also fail. "Our courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality.

Therefore, his fatal variance claim fails. See Lebis , 302 Ga. at 759-760, 808 S.E.2d 724 (II) (B), 808 S.E.2d 724 (citing approvingly Davis v. State , 287 Ga. App. 786, 787 (1), 653 S.E.2d 104 (2007), a Court of Appeals opinion that rejected a similar fatal variance claim where the trial evidence authorized a finding that the defendant was a party to the crime). (b) The trial court did not err in instructing the jury on party to a crime.

(Citation and punctuation omitted.) Davis v. State , 287 Ga. App. 786, 788 (2), 653 S.E.2d 104 (2007). See also Boccia v. State , 335 Ga. App. 687, 692 (1) (a) (ii), 782 S.E.2d 792 (2016) ("Looking at the objective reasonableness of counsel's performance, we find that there were sound strategic reasons for not undermining [the defendant's] all-or-nothing defense by introducing the idea that he may have committed lesser crimes.")

See footnote 14, supra. See Davis v. State , 287 Ga. App. 786, 789 (2), 653 S.E.2d 104 (2007). See Jessie , 294 Ga. at 377 (2) (a), 754 S.E.2d 46 (Because counsel believed that the State failed to prove a crime as indicted, it was not patently unreasonable to forego a jury instruction on a lesser-included offense and, instead, pursue an "all or nothing" strategy, where the jury had to either acquit the defendant or convict her of the crimes as indicted.)

See Jimmerson v. State, 289 Ga. 364, 368–369(2)(a), (e), 711 S.E.2d 660 (2011). See id.; Davis v. State, 287 Ga.App. 786, 788–789(2), 653 S.E.2d 104 (2007) (“[The] decision not to request a jury charge on a lesser included offense in order to pursue an ‘all-or-nothing’ defense is a matter of trial strategy,” and reasonable trial strategy, whether wise or unwise, generally does not amount to ineffective assistance of counsel.); see further Strickland, supra at 690(III)(A), 104 S.Ct. 2052 (espousing that trial counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment”); Mathis, supra (reiterating that to demonstrate deficient performance, “appellant must overcome the strong presumption that counsel's performance fell within a wide range of reasonable professional assistance”). (b) Styles charges his trial counsel with deficient performance for failing to call as a trial witness an individual who had knowledge of what he claims were material facts.

Trumpler v. State, 261 Ga. App. 499, 501 (3) ( 583 SE2d 184) (2003). See Bruster v. State, 228 Ga. 651, 652 (3) ( 187 SE2d 297) (1972) ("It has been repeatedly held by this court that a conspiracy may be proved, though not alleged in the indictment or accusation.") (citations omitted); Davis v. State, 287 Ga. App. 786, 787 (1) ( 653 SE2d 104) (2007) ("it was not necessary for the indictment to charge Davis with being a party to a crime in order for the [S]tate to prove his culpability in that manner") (footnote omitted). Thus, the presentation to the jury of the theories of parties to the crime and conspiracy did not constitute a constructive amendment to the indictment in this case, and Elamin's claim must fail.

(Punctuation and footnote omitted.) Davis v. State, 287 Ga. App. 786, 788 (2) ( 653 SE2d 104) (2007). (Citation omitted.)

(Punctuation and footnote omitted.) Davis v. State, 287 Ga. App. 786, 788 (2) ( 653 SE2d 104) (2007). Id.

See [1]. See also Davis v. State, 653 S.E.2d 104 (Ga. Ct. App. 2007). I RECOMMEND that Davis's motion be DENIED and that this case be DISMISSED WITHOUT PREJUDICE.

In sum, the “decision not to request a jury charge on a lesser included offense in order to pursue an ‘all-or-nothing’ defense is a matter of trial strategy,” and reasonable trial strategy, whether wise or unwise, generally does not amount to ineffective assistance of counsel. Davis v. State, 287 Ga.App. 786, 788, 653 S.E.2d 104 (2007). Furthermore, even if we were to assume that trial counsel's performance was deficient as alleged, Appellant did not show resulting prejudice because, given the evidence in this case, there is not a reasonable probability that the outcome of his trial would have been more favorable even if the jury had been given an involuntary manslaughter instruction.