Muldrow v. State

• Decision Date: 12 June 2013
• Docket Number: No. A13A0107.,A13A0107.
• Citation: 322 Ga.App. 190,744 S.E.2d 413
• Parties: MULDROW v. The STATE.
• Court: Georgia Court of Appeals

322 Ga.App. 190
744 S.E.2d 413

MULDROW
v.
The STATE.

No. A13A0107.

Court of Appeals of Georgia.

June 12, 2013.

[744 S.E.2d 414]

Wendell Rocky Adams, for appellant.

Charles R. Sheppard, Asst. Dist. Atty., Rebecca Ashley Wright, Dist. Atty., for appellee.

DILLARD, Judge.

[322 Ga.App. 190]Following a trial by jury, Austin Muldrow was convicted on two counts of possession of a firearm during the commission of a crime, possession of cocaine with intent to distribute, and possession of marijuana with intent to distribute.¹ On appeal, Muldrow contends that (1) there is insufficient evidence on one count of possession of a firearm during the commission of a crime, (2) the State failed to prove venue, (3) he received ineffective assistance of counsel when his attorney failed to

[744 S.E.2d 415]

move for a directed verdict after the State failed to prove venue, (4) he received ineffective assistance of counsel when his attorney stipulated to venue without his express authorization, and (5) the trial court erred in accepting a stipulation to venue without a proper showing that Muldrow authorized same. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury's guilty verdict,² the record reflects that in the early morning hours of June 1, 2006, Antonio McDaniel was shot in the head and killed on a residential street in Augusta. Muldrow lived in a house adjacent to where McDaniel's body was found, and he and his live-in girlfriend were questioned during law enforcement's investigation.

During questioning, Muldrow consented to various searches of his homes and vehicles.³ He also directed law enforcement as to where they could locate weapons and drugs in these locations. Officers discovered three firearms, ammunition, a one-gallon-sized bag filled with 127.8 grams of marijuana individually packaged in small plastic baggies, a bag of more than 17 grams of crack cocaine, a bag with five pieces of crack cocaine, and scales typically associated with weighing narcotics.

In the course of continued questioning, Muldrow became a suspect in the murder due to inconsistencies between his statements and those of his girlfriend. Muldrow eventually told law enforcement that he killed McDaniel, but he later denied that this was true. Nevertheless, he never denied possessing the firearms or drugs. Muldrow also testified at trial that he sold cocaine to an acquaintance on the night in question and that he routinely sold drugs from a hotel room.

[322 Ga.App. 191]The jury subsequently convicted Muldrow of possessing a weapon during the commission of a crime and possessing marijuana and cocaine with the intent to distribute,⁴ but he was acquitted on the murder charges.⁵ This appeal follows.

At the outset, we note that on appeal from a criminal conviction, “we view the evidence in the light most favorable to the jury's verdict, and the defendant is no longer presumed innocent.” ⁶ And in evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility, but only determine “if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt.” ⁷ Accordingly, the jury's verdict will be upheld so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State's case.” ⁸ With these guiding principles in mind, we turn now to Muldrow's enumerations of error.

1. First, we will address Muldrow's contention that the evidence against him was insufficient to sustain one of the

[744 S.E.2d 416]

convictions for possession of a weapon during the commission of a crime.⁹ Specifically, Muldrow argues that because he was acquitted of murder, there was no basis for the underlying felony of possession of a weapon during the commission of a crime. However, this argument is wholly without merit due to Georgia's rejection of the inconsistent-verdict rule.¹⁰ It is well established that a defendant “cannot attack as inconsistent a jury verdict of guilty on one count and not guilty on a [322 Ga.App. 192]different count.” ¹¹ Accordingly, Muldrow's argument that his conviction for possession of a firearm during the commission of a crime is void fails.¹²

2. Next, in three separate enumerations of error, Muldrow contends that the State failed to establish venue, that his trial counsel was ineffective in failing to move for a directed verdict as to this failure, and that his counsel was ineffective in stipulating to venue. We agree that the State's evidence failed to establish venue, but venue was ultimately established by way of a stipulation to same, and Muldrow did not receive ineffective assistance of counsel in this regard. We will address each of his contentions in turn.

(a) First, as to venue, we note that the Georgia Constitution requires that venue in all criminal cases “be laid in the county in which the crime was allegedly committed.” ¹³ And as with every other material allegation contained in an indictment, the State must prove venue beyond a reasonable doubt.¹⁴ Indeed, when a defendant pleads not guilty to criminal charges, the State must prove venue by more than “slight evidence.” ¹⁵ And the failure to prove venue beyond a reasonable doubt “renders the verdict contrary to law, without a sufficient evidentiary basis, and warrants reversal.” ¹⁶

In the case sub judice, the State maintains that it presented sufficient evidence of venue; however, the State's arguments in support of this contention are without merit. Indeed, it is well established that proving a crime happened on a particular street is not sufficient to establish venue,¹⁷ nor is “proving that a crime took place within a city without also proving that the city is entirely within a county....” ¹⁸ Additionally, the investigating officers' county of [322 Ga.App. 193]employment “does not, in and of itself, constitute sufficient proof of venue to meet the beyond a reasonable doubt standard.” ¹⁹ And finally,

[744 S.E.2d 417]

contrary to the State's assertions, this Court cannot rely upon material not presented to the jury to find that venue was proper; ²⁰ “[n]or are we, as a reviewing court, free to resort to judicial notice to legitimize a judgment.” ²¹ Nevertheless, as further discussed infra, venue was established when Muldrow stipulated to same at the State's request.²² Accordingly, this enumeration of error is without merit.

(b) Next, as to Muldrow's argument that he received ineffective assistance of counsel, in general, when a defendant claims that his trial counsel was ineffective, he has the burden of establishing that “(1) his attorney's representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” ²³ And when the trial court determines that a defendant has not received ineffective assistance, we will affirm that decision on appeal unless it is clearly erroneous.²⁴

Here, Muldrow first takes issue with his counsel's failure to move for a directed verdict as to the State's failure to establish venue and, second, with his counsel's ultimate stipulation to venue. But Muldrow cannot establish that he received ineffective assistance of counsel in either instance.

[322 Ga.App. 194]To begin with, the record reflects that Muldrow's counsel moved for and was denied a directed verdict as to the issue of murder at the close of the State's evidence, but he did not move for a directed verdict on the issue of a failure to establish venue. And later during the charge conference, despite opining that venue had been shown, the State expressed reservations over not having asked any witness the specific question of whether the crimes occurred in Richmond County and, thus, sought leave to reopen the evidence to ask that question of a witness. In response, Muldrow's counsel had no objection to the State's request. And as a result of defense counsel's willingness to permit the evidence to be reopened for purposes of establishing venue, the State inquired as to whether Muldrow would stipulate that venue was indeed proven. Muldrow's counsel agreed to same on his client's behalf, and venue in Richmond County was thereafter stipulated to before the jury.

As previously noted, Muldrow contends that his counsel was ineffective in failing to move for a directed verdict on the failure to establish venue and his ultimate decision to stipulate to venue. Pretermitting whether either decision fell below the objective standard of reasonableness, Muldrow cannot prove that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” ²⁵ Indeed, had defense counsel either moved for a directed verdict as to the lack of venue or...