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Wilburn v. State

Trial counsel's decision to request a charge on the lesser offense of cocaine possession was a matter of trial strategy.

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Timmy Wilburn was indicted for possession of cocaine with intent to distribute, obstruction of an officer, and criminal trespass. The trial court granted a directed verdict to him on the criminal trespass charge, and a jury found him guilty of obstruction and the lesser included offense of simple possession of cocaine. Wilburn moved for a new trial, which the trial court denied. Wilburn appeals, contending that he received ineffective assistance of counsel. He also challenges the sufficiency of the evidence. Finding no error, we affirm. 1. Wilburn asserts that there was insufficient evidence to convict him of possession of cocaine. “On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in a light most favorable to the verdict to determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt.”1

So viewed, the evidence shows that on the afternoon of September 20, 2002, Officer D.J. Barker of the City of Austell Police Department responded to a call that a group of men gathered in front of an apartment building were using drugs. When he arrived at the apartments, he found 10 to 15 men —including Wilburn —standing outside the building. Officer Barker exited his vehicle and asked the men to take their hands out of their pockets and walk towards him. All but Wilburn did as they were asked. Wilburn, however, walked away from the officer.

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