McNORRILL v. THE STATE

SECOND DIVISION
BARNES, P. J.,
BOGGS and RICKMAN, 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.
http://www.gaappeals.us/rules

August 3, 2016

In the Court of Appeals of Georgia
A16A1016. MCNORRILL v. THE STATE.

BARNES, Presiding Judge.

A Richmond County jury found Todderius McNorrill guilty of hijacking a

motor vehicle, possession of marijuana with intent to distribute, and possession of a

firearm during the commission of a crime. On appeal from the denial of his motion

for new trial, McNorrill challenges the sufficiency of the evidence supporting his

convictions. McNorrill further contends that he was deprived of his constitutional

right to effective counsel because his trial counsel had an actual conflict of interest

and failed to object to certain jury instructions. For the reasons discussed below, we

affirm.

“Following a criminal conviction, the defendant is no longer presumed

innocent, and we view the evidence in the light most favorable to sustain the verdict.”

Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). The evidence in the

present case, viewed in favor of the verdict, was recently summarized by this Court
in Whaley v. State, __ Ga. App. __ (785 SE2d 685) (2016), the appeal of McNorrill’s

co-defendant, Meguel Whaley:

[A]round 10:30 p.m. on July 5, 2010, the victim received a call
from his friend Chris asking if the victim wanted to hang out. The victim
did not know Chris very well,1 but agreed to pick him up at a gas station.
After meeting up with Chris, the victim drove them around until Chris
asked to stop at someone’s house for a few minutes. The victim drove
Chris to the house, and Chris went inside while the victim remained in
his car. After Chris returned to the car, they continued to ride around
until Chris received a call on his cell phone. The victim pulled his car
into another gas station and let Chris out of the car so that he could talk
on the phone privately. After talking on his phone, Chris got back into
the car and asked the victim to drive to a nearby elementary school so
that they could meet up with two men whom Chris identified as his
cousin and his friend.

After Chris directed the victim to the elementary school, the
victim drove into a lot on the side of the school to wait for Chris’ cousin
and friend to approach the car. Once the victim had driven into the lot,
however, Chris asked the victim to turn off his car and walk with him
behind the school to meet up with his cousin and friend there. Although
he “felt kind of suspicious” at that point, the victim agreed to walk with
Chris behind the school. Upon walking behind the school, the victim
saw two men, later identified as . . . [co-defendant] Whaley and . . .

1
The victim did not know Chris’ last name or where he lived.

2
McNorrill, sitting on some steps. Chris approached Whaley and
McNorrill, gave them a high-five, and spoke with them privately for a
few minutes while the victim stood nearby.

The victim thought they were going to walk back to his car, but
Whaley suddenly approached the victim and pointed a handgun at him.
Whaley said, “You know what time it is,” which the victim understood
to mean that he was being robbed. Whaley held the gun to the victim’s
head as he went through the victim’s pockets with his other hand. Chris
began protesting, but Whaley told McNorrill to “shut him up,” and
McNorrill pulled out a handgun and pointed it at Chris. The victim later
told the police that one of the guns was a .22 caliber weapon and the
other was a .380 caliber black and silver weapon.

Whaley told the victim to lie down on the ground and asked
McNorrill for a roll of duct tape. After the victim lay on the ground,
Whaley got the duct tape from McNorrill and wrapped it around the
victim’s eyes, mouth, and hands. Whaley placed his gun against the
victim’s head and again went through the victim’s pockets, taking $125
in cash, a cell phone, the victim’s keys, and his driver’s license. Whaley
warned the victim that he and McNorrill had the victim’s identification
and would kill the victim if he called the police. Before running from the
scene, Whaley and McNorrill kicked the victim in the legs, ribs, and
head.

The victim was able to free himself from the duct tape in time to
see Whaley and McNorrill get inside his car and drive away from the

3
school.2 The victim then walked to a gas station a few minutes away and
used the phone to call the police. A sheriff’s deputy arrived at the gas
station shortly thereafter, and the victim told the deputy about what had
happened, described the two suspects, and provided a description of his
stolen car. The deputy radioed the information to his dispatcher, and
other deputies in the area were told to be on the lookout for the victim’s
car.

A few minutes later, another deputy saw the victim’s car stopped
at a red light at an intersection, confirmed that it matched the description
of the stolen vehicle, and attempted to initiate a traffic stop. When the
deputy activated the emergency lights on his marked patrol car, the
driver of the victim’s car ignored the lights and drove away, resulting in
a police chase.

A deputy in a second marked patrol car activated his emergency
lights and took over the chase. As the chase continued, Whaley jumped
out of the driver’s side door while the victim’s car was still moving and
ran towards the woods. McNorrill remained in the front passenger seat
after Whaley jumped out, and the victim’s car crashed through a fence
and came to a stop against a tree. Deputies pursued Whaley on foot and
gave several verbal commands for him to stop, but he continued running
from them. One of the deputies caught up with Whaley and was able to
apprehend him. . . .

2
Chris apparently ran off separately, but the record is unclear on this point.

4
 Another deputy approached the crashed car and arrested
McNorrill, who was still in the passenger seat. The deputy searched
McNorrill and discovered twelve .22 caliber bullets in his pocket. The
victim subsequently was driven to the scene where the car chase had
concluded, and he confirmed that Whaley and McNorrill were the
perpetrators in a show-up identification.

Deputies searched the victim’s car that had been taken by Whaley
and McNorrill. Marijuana weighing a total of 4.5 grams was in plain
view on the passenger seat and on the driver’s side floorboard. From the
way the marijuana was packaged, it appeared to be for distribution. The
victim later testified at trial that the marijuana did not belong to him.
Additionally, deputies found a loaded Hi-Point .380 caliber handgun on
the driver’s seat, and the victim testified that it was the gun that Whaley
had pointed at him.

Deputies also searched behind the elementary school, where they
found an empty roll of duct tape and a baseball cap that belonged to the
victim. However, the victim’s cell phone, cash, and other personal items
were never found.

Whaley and McNorrill were jointly charged with hijacking a
motor vehicle, armed robbery, false imprisonment, possession of
marijuana with intent to distribute, and two counts of possession of a
firearm during the commission of a crime. . . . Whaley and McNorrill
subsequently were tried together. The victim and responding deputies
testified to the events as summarized above, and the State introduced

5
 and showed to the jury a video recording of the police car chase and
photographs of the items seized at the elementary school and from the
victim’s car. Whaley and McNorrill elected not to testify and did not
present any defense witnesses.

After reviewing all the evidence, the jury found both Whaley and
McNorrill guilty of hijacking a motor vehicle, possession of marijuana
with intent to distribute, and one count of possession of a firearm during
the commission of a crime. . . . The jury acquitted Whaley and McNorrill
of armed robbery, false imprisonment, and one count of possession of
a firearm during the commission of a crime. . . .

McNorrill filed a motion for new trial, as amended, in which he challenged the

sufficiency of the evidence and contended that his trial counsel rendered ineffective

assistance. After conducting an evidentiary hearing, the trial court denied the motion.

This appeal followed.

1. McNorrill contends that there was insufficient evidence to support his

conviction of possession of marijuana with intent to distribute.3 While he concedes

3
In his enumerations of error, McNorrill also contends that the evidence was
insufficient to convict him of hijacking a motor vehicle. However, in the argument
section of his brief, McNorrill provides no argument or citations of authority
addressing the sufficiency of the evidence as to the motor vehicle hijacking offense.
McNorrill thus has abandoned any challenge he may have had to his motor vehicle
hijacking conviction on the asserted ground. See Court of Appeals Rule 25 (a) (3),
(c) (2); Jones v. State, 289 Ga. App. 219, 221 (1), n.1 (656 SE2d 556) (2008).

6
that there was evidence that he possessed the marijuana found in the victim’s stolen

car, McNorrill maintains that there was insufficient evidence showing that he acted

with the intent to distribute the marijuana. We disagree.

To prove possession with intent to distribute, the State must show
more than mere possession of a controlled substance. No bright line rule
exists regarding the amount or type of evidence sufficient to support a
conviction for possession with intent to distribute, and whether the State
has proven an intent to distribute is peculiarly a question of fact for
determination by the jury. Furthermore, in addressing the sufficiency of
the evidence, we are always mindful that it is not our role to weigh the
evidence or determine the credibility of witnesses; instead, under the
standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319 (III) (B)
(99 SCt 2781, 61 LEd2d 560 (1979), we only determine whether a
rational trier of fact could have found the defendant guilty of the
charged offense beyond a reasonable doubt.

(Citations and punctuation omitted.) Flemister v. State, 317 Ga. App. 749, 752 (1),

(732 SE2d 810) (2012). Additionally, where, as in the present case, the conviction at

issue is based solely on circumstantial evidence, “the proved facts shall not only be

consistent with the hypothesis of guilt, but shall exclude every other reasonable

Nevertheless, we have reviewed the trial record and conclude that there was sufficient
evidence for a rational trier of fact to find McNorrill guilty beyond a reasonable doubt
of hijacking a motor vehicle.

7
hypothesis save that of the guilt of the accused,” and whether that State has met this

burden is normally a question for the jury. (Citation and punctuation omitted.) Noble

v. State, 225 Ga. App. 470, 471 (484 SE2d 78) (1997).

Here, the marijuana found in the car was packaged in nine individual baggies,

with eight of the baggies contained in a larger plastic bag on the driver’s side

floorboard and the ninth baggie on the passenger seat. The sheriff’s investigator

testified that, based on his training and experience, the marijuana was packaged in a

manner commonly used for distribution.4 The evidence that the marijuana was

“packaged in a manner commonly associated with the sale or distribution of such

contraband would authorize any rational trier of fact to infer that [McNorrill]

possessed marijuana, a controlled substance, with intent to distribute.” (Citations and

punctuation omitted.) Flemister, 317 Ga. App. at 752 (1). See Williams v. State, 303

Ga. App. 222, 224-225 (2) (692 SE2d 820) (2010); Mayo v. State, 277 Ga. App. 282,

4
While McNorrill argues that the State failed to qualify the sheriff’s
investigator as an expert, McNorrill failed to object on that ground at trial and
therefore has waived any objection to the investigator rendering an opinion regarding
the marijuana packaging. See Boring v. State, 303 Ga. App. 576, 579 (1) (694 SE2d
157) (2010). Furthermore, the State laid a foundation for the investigator’s opinion
testimony by eliciting testimony about his “couple hundred” encounters with
marijuana and its different forms of packaging during the course of his career.

8
283 (1) (a) (626 SE2d 245) (2006); Rutledge v. State, 224 Ga. App. 666, 668 (1) (482

SE2d 403) (1997); Bowers v. State, 195 Ga. App. 522, 522 (1) (394 SE2d 141)

(1990).

Moreover, in addition to the packaging of the marijuana, the evidence shows

that a loaded handgun was found on the driver’s seat, bullets were found in

McNorrill’s pocket, and the victim testified that McNorrill had a handgun that night.

This evidence further supported McNorrill’s conviction for possession of marijuana

with intent to distribute. See State v. Jackson, 287 Ga. 646, 652 (2) (697 SE2d 757)

(2010) (pointing out that it is “not unusual” for drug dealers to be armed); Smith v.

State, 335 Ga. App. 742, 744 (2) (782 SE2d 824) (2016) (noting that a “loaded

handgun with a bullet in the chamber was found in the front passenger seat” in

affirming conviction for possession of drugs with intent to distribute). Conversely,

there was no evidence that McNorrill or his co-defendant were drugs users or were

under the influence of drugs, and no evidence of any smoking devices, rolling papers,

or other paraphernalia associated with drug use found in the car. Accordingly, under

the totality of the evidence, a rational jury could reject the alternative hypothesis that

the marijuana was for personal use rather than distribution. See Jackson v. State, 314

Ga. App. 272, 276 (1) (c) (724 SE2d 9) (2012).

9
 Two cases relied upon by McNorrill, Hicks v. State, 293 Ga. App. 830 (668

SE2d 474) (2008); and Clark v. State, 245 Ga. App. 267 (537 SE2d 742) (2000), do

not require a different result. In Hicks, we concluded that the evidence presented at

trial supported the reasonable alternative hypothesis that the drugs found in the

defendant’s car were for personal use rather than distribution, where the only

evidence of intent to distribute was that the defendant possessed a pill bottle

containing an unidentified number of broken-up pieces of cocaine, and an

investigator testified that storing drugs in such a disposable container indicated an

intent to sell. 293 Ga. App. at 831-833. We specifically noted, however, that there

was no evidence of weapons or of “drug packaging materials such as baggies in the

vehicle.” Id. at 832. Hicks thus is materially distinguishable in light of the loaded

handgun and individualized packaging of the marijuana found in the car here.

Clark is likewise distinguishable. In Clark, we concluded that the evidence was

insufficient to prove that the drugs were for distribution rather than personal use,

where the police discovered eight bags of an unidentified amount of marijuana in a

van with four people inside of it parked behind a restaurant in the middle of the night.

245 Ga. App. at 267-269. The passengers in the van were sitting on or next to several

of the bags. Id. at 268. The police also found a cigar on the dashboard of the van that

10
had been cut open with the tobacco removed, which a police officer testified was

“consistent with people getting ready to replace the tobacco with marijuana, [to] make

a joint.” Id. at 267. Given the number of people in the van where the marijuana was

found, the unidentified amount of marijuana, the absence of any guns or “drug

packaging materials,” and the presence of the cigar made into a drug smoking device,

Clark clearly diverges factually from the situation here. Id. at 269.

As we have emphasized, “the intent with which an act is done is peculiarly a

question of fact for determination by the jury. Intent, which is a mental attitude, is

commonly detectible only inferentially, and the law accommodates this.” (Citation

and punctuation omitted.) Mayo, 277 Ga. App. at 283 (1) (a). Given the combined

evidence in this case, we conclude that the State met its burden of proving that

McNorrill intended to distribute the drugs, and the jury was authorized to find

McNorrill guilty beyond a reasonable doubt of possession of marijuana with intent

to distribute. Jackson, 443 U. S. at 319 (III) (B).5

5
McNorrill also argues that because the evidence was insufficient to convict
him of possession of marijuana with intent to distribute, the evidence likewise was
insufficient to convict him of possession of a firearm during the commission of that
drug-related crime. McNorrill’s argument is without merit, in light of our conclusion
that there was sufficient evidence to convict him of possession of marijuana with
intent to distribute.

11
 2. McNorrill next contends that he was denied his constitutional right to

effective counsel because his trial counsel had an actual conflict of interest that

adversely affected the representation. According to McNorrill, an actual conflict of

interest arose because his trial attorney was employed in the same circuit public

defender’s office as the attorney who represented his co-defendant, and he and his co-

defendant had antagonistic interests that precluded them from being represented by

attorneys in the same office. We are unpersuaded.

As our Supreme Court has pointed out, “[t]he potential for serious conflicts of

interest [exists] when one lawyer represents co-defendants in a criminal proceeding.”

Tolbert v. State, 298 Ga. 147, 148 (2) (a) (780 SE2d 298) (2015), citing In re Formal

Advisory Opinion 10-1, 293 Ga. 397, 400 (2) (744 SE2d 798) (2013). And

if it is determined that a single public defender in the circuit public
defender’s office of a particular judicial circuit has an impermissible
conflict of interest concerning the representation of co-defendants, then
that conflict of interest is imputed to all of the public defenders working
in the circuit public defender office of that particular judicial circuit.

In re Formal Advisory Opinion 10-1, 293 Ga. at 399 (1). See Pryor v. State, 333 Ga.

App. 408, 410 (2) (776 SE2d 474) (2015).

12
 But “the mere ‘possibility of conflict is insufficient to impugn a criminal

conviction.’” Lytle v. State, 290 Ga. 177, 178 (2) (718 SE2d 296) (2011), quoting

Cuyler v. Sullivan, 446 U.S. 335, 350 (IV) (C) (100 SCt 1708, 64 LE2d 333) (1980).

Rather, “[t]o prevail on a claim that a conflict of interest worked a denial of the

effective assistance of counsel, a defendant like [McNorrill] – one who failed to

object to the conflict at trial – must show that ‘an actual conflict of interest adversely

affected his lawyer’s performance.’” (Footnote omitted.) Tolbert, 298 Ga. at 149 (2),

quoting Cuyler, 446 U.S. at 348 (IV) (B). See State v. Abernathy, 289 Ga. 603, 604

(1) (715 SE2d 48) (2011); Pryor, 333 Ga. App. at 412-413 (2).

[T]he critical question is whether the conflict significantly affected the
representation, not whether it affected the outcome of the underlying
proceedings. That is precisely the difference between ineffective
assistance of counsel claims generally, where prejudice must be shown,
and ineffective assistance of counsel claims involving actual conflicts
of interest, which require only a showing of a significant effect on the
representation.

(Citation omitted; emphasis in original.) Abernathy, 289 Ga. at 604-605 (1). Thus,

McNorrill had to show that the simultaneous representation of himself and his co-

defendant by two lawyers working in the same public defender’s office created a

13
conflict of interest that significantly affected his own lawyer’s performance. See id.;

Pryor, 333 Ga. App. at 412-413 (2).

In reviewing whether McNorrill proved that his trial counsel was laboring

under a conflict of interest that adversely affected his counsel’s performance, we owe

no deference to the trial court’s application of the law to the facts. Tolbert, 298 Ga.

at 151 (2) (a). “We owe substantial deference, however, to the way in which the trial

court assessed the credibility of witnesses and found the relevant facts.” Id. Mindful

of this standard of review, we turn to the record in this case.

While McNorrill and his co-defendant were represented by attorneys in the

same trial team at the same circuit public defender’s office, there was no evidence of

any communications or corroboration between the attorneys regarding this case.

Rather, McNorrill’s trial counsel testified at the hearing on the motion for new trial

that she recalled no such communications or corroboration with the other attorney in

her office. Furthermore, trial counsel testified that she felt no constraints in her

representation of McNorrill and did not feel that there was any conflict that inhibited

her trial performance, and there is nothing in the trial transcript reflecting otherwise.

Trial counsel also testified that if a conflict had existed, she would have reviewed the

issue with her supervisor, but there had been no need to do so under the

14
circumstances here. Given this record, the trial court was entitled to find that

McNorrill failed to show that his trial counsel was laboring under an actual conflict

of interest that negatively impacted her pre-trial preparation or her performance

during trial.

McNorrill nevertheless argues that an actual conflict of interest arose at one

point before trial when the prosecutor offered him a plea conditioned on McNorrill

testifying against his co-defendant, thereby causing McNorrill and his co-defendant

to have interests that were antagonistic to one another. However, McNorrill’s trial

counsel testified at the new trial hearing that she fully informed McNorrill of the plea

offer, that she told him that it was his decision whether to accept the offer, and that

“it [had been] of no account to [her]” whether McNorrill chose to testify against his

co-defendant. Trial counsel also testified that McNorrill was very “deferential” to his

co-defendant and looked to his co-defendant “for cues . . . in making decisions about

what he wanted to do.” The trial transcript reflects that when the plea offer was later

brought up in open court, McNorrill rejected the offer, stating, “I would take the

offer, but I don’t want to testify.” In light of this combined record evidence, the trial

court was entitled to find that any potential conflict arising from the plea offer did not

adversely affect the manner in which trial counsel handled the offer or conveyed it

15
to McNorrill, and that McNorrill made his own independent decision not to accept

the offer because he did not want to testify at trial.

In sum, as the trial court was authorized to conclude, McNorrill failed to

establish that the simultaneous representation of himself and his co-defendant by two

public defenders in the same office created an actual conflict of interest that

significantly affected his own lawyer’s performance before or during trial. See

Abernathy, 289 Ga. at 604-605 (1); Lytle, 290 Ga. at 178-179 (2); Pryor, 333 Ga.

App. at 413-414 (2); Johnson v. State, 320 Ga. App. 161, 165-166 (4) (739 SE2d 469)

(2013). It follows that the trial court did not err when it denied McNorrill’s motion

for new trial on this ground.

3. McNorrill also contends that his trial counsel was ineffective for failing to

object to the trial court’s jury instruction on possession of marijuana with intent to

distribute. We disagree.

Count 5 of the indictment charged McNorrill with violating the Georgia

Controlled Substances Act, OCGA § 16-13-30 (j), by possessing marijuana with the

intent to distribute. In defining the alleged offense to the jury, the trial court

instructed: “The offense charged in count 5 of this indictment is a violation of the

Georgia Controlled Substances Act, which provides that it is unlawful for any person

16
to [a] possess, or have under one’s control or [b] possess with intent to distribute any

quantity of marijuana, which is a controlled substance.” According to McNorrill, the

trial court’s instruction was erroneous because it included a reference to simple

possession of marijuana as a violation of the Georgia Controlled Substances Act, and

thus could have misled the jury into convicting him of a drug crime different from

that charged in the indictment. Consequently, McNorrill contends that his trial

counsel was ineffective for failing to object to the instruction.

While instructing the jury that a crime can be committed in a
manner different from that charged in the indictment can constitute
reversible error, a reversal is not mandated where, as here, the charge as
a whole limits the jury’s consideration to the specific manner of
committing the crime alleged in the indictment.

(Punctuation and footnote omitted.) Machado v. State, 300 Ga. App. 459, 462 (5)

(685 SE2d 428) (2009). See Wheeler v. State, 327 Ga. App. 313, 319 (3) (758 SE2d

840) (2014). Here, the trial court read the indictment to the jury, instructed the jury

that the State had the burden of proving every material allegation of the indictment

beyond a reasonable doubt, further instructed the jury that it could find McNorrill

guilty if it found beyond a reasonable doubt that he committed the offenses “alleged

in the indictment,” and provided the indictment to the jury during its deliberations.

17
 These instructions, when considered as a whole, cured any potential error in the

trial court’s instruction on count 5 of the indictment. See Dugger v. State, 297 Ga.

120, 123 (6) (772 SE2d 695) (2015); Faulks v. State, 296 Ga. 38, 39 (2) (764 SE2d

846) (2014); Wheeler, 327 Ga. App. at 319-320 (3); Machado, 300 Ga. App. at 462-

463 (5). Under these circumstances, McNorrill cannot show that the jury instruction

prejudiced his case, and thus cannot succeed on his ineffective assistance claim. See

Gomillion v. State, 236 Ga. App. 14, 18 (3) (c) (512 SE2d 640) (1999) (“Failure to

object to a court’s charge[] . . . is not ineffective assistance where the appellant does

not show how this prejudiced his case.”) (citation and punctuation omitted).

4. Lastly, McNorrill contends that his trial counsel was ineffective for failing

to object to the trial court’s jury instruction on possession of a firearm during the

commission of a crime. Again, we disagree.

OCGA § 16-11-106 (b) (4) provides that a person commits a felony when he

possesses a firearm on or within arm’s reach of his person during the commission of

certain felony drug-related crimes. The trial court instructed the jury on the definition

of possession of a firearm during the commission of a crime:

A person commits the offense of possession of a firearm during the
commission of a crime when the person has on or within arm’s reach of

18
 his person a firearm during the commission of or any attempt to commit
a felony, which is . . . any crime involving the possession, or possession
with intent to distribute a controlled substance. I charge you marijuana
is a controlled substance.

McNorrill argues that the trial court’s instruction, by including a reference to

possession of marijuana as a potential predicate felony offense for the firearm crime,

was an incorrect statement of the law under the facts of this case. He emphasizes that

possession of marijuana is only a felony if the amount of marijuana possessed is

greater than one ounce, OCGA § 16-13-2 (b), but the amount of marijuana found in

the victim’s stolen vehicle was less than that amount. Consequently, McNorrill

argues, his mere possession of marijuana in this case would not have supported a

conviction of possession of a firearm during the commission of a crime, and his trial

counsel was ineffective for failing to object to the jury instruction on that basis.

Even if McNorrill’s trial counsel was deficient for failing to object to the jury

instruction, McNorrill has failed to show how that error was prejudicial. The jury

found McNorrill guilty of possession of marijuana with intent to distribute, there was

sufficient evidence to support that felony conviction as explained supra in Division

1, and it is undisputed that possession of marijuana with intent to distribute could

serve as the predicate felony offense for McNorrill’s conviction of possession of a

19
firearm during the commission of a crime under OCGA § 16-11-106 (b) (4). Hence,

“there is not a reasonable probability that, if the trial court had omitted the [reference

to simple possession of marijuana from the instruction] at [McNorrill’s] behest, the

outcome of the trial would have been more favorable to him.” Daughtry v. State, 296

Ga. 849, 859 (2) (g) (770 SE2d 862) (2015). McNorrill therefore cannot succeed on

his ineffective assistance claim. Id.

Judgment affirmed. Boggs, J. concurs. Rickman, J., concurs in judgment only.

20