In the Supreme Court of Georgia

Decided: August 21, 2023

S23A0508. MOULDER v. THE STATE.

 WARREN, Justice.

In March 2015, Joshua Moulder was convicted of malice 

murder, armed robbery, and possession of a firearm during the 

commission of a felony in connection with the July 2006 shooting 

death of Anthony Rudolph and was also convicted of influencing a 

witness in 2014. He appeals those convictions, arguing that the 

evidence was not sufficient to support his convictions related to the 

2006 shooting and that counsel provided ineffective assistance by:

not arguing that the State failed to prove the statute of limitation 

tolling provision alleged for the non-murder crimes committed in 

2006; failing to raise a hearsay and Confrontation Clause objection

to certain testimony given by the lead detective; failing to correctly 

advise Moulder about whether his prior convictions could be used to 
2

impeach him if he testified; inaccurately describing the reasonabledoubt standard in closing argument; and failing to object to a jury 

charge about statements made during formal court proceedings. 

Because the evidence was sufficient to support Moulder’s convictions 

and he has failed to prove his claims of ineffective assistance of 

counsel, we affirm.1

1. Viewed in the light most favorable to the verdicts, the 

evidence presented at Moulder’s trial showed the following. In 

November 2005, Rudolph was released on parole from an Ohio 

prison and started living in Cleveland, Ohio. In July 2006, Rudolph 

 1 Rudolph was killed in July 2006. In March 2015, a Cobb County grand 

jury indicted Moulder for malice murder, four counts of felony murder, 

aggravated assault, two counts of armed robbery, and possession of a firearm 

during the commission of a felony, all in connection with Rudolph’s July 2006 

shooting, and one count of influencing a witness based on Moulder’s actions 

toward Aletha Hughes in December 2014. At a trial from June 18 to 28, 2018, 

the jury found Moulder guilty on all counts. The court sentenced him to serve 

two sentences of life in prison—one for malice murder and one for armed 

robbery—five consecutive years in prison for the firearm possession count, and 

ten concurrent years for influencing a witness. The remaining counts were 

merged or vacated by operation of law. Moulder timely moved for a new trial, 

which he later amended twice with new counsel. In October 2022, after an 

evidentiary hearing, the trial court denied Moulder’s motion. He filed a timely 

notice of appeal. The case was docketed to the April 2023 term of this Court 

and orally argued on April 20, 2023. 
3

told his friend Clarence Marshall that he was going to drive to 

Atlanta with “this guy that he met in the penitentiary called 

‘Youngster’” for a drug deal; that he and Youngster were each going 

to contribute $15,000; and that Youngster was from the Atlanta area 

and had been paroled to Dayton, Ohio, in May or June 2006.2 

Similarly, Rudolph told his sister that he was going to pick up a 

friend, “Youngster or somebody,” in Xenia, Ohio.3 

On July 18, 2006, Rudolph rented a car in Ohio, and at 6:15 

a.m. on July 20, he rented a hotel room in Cobb County, Georgia for 

one night. The next day, a man, whom the hotel staff could not 

describe, extended the room rental for another night. On July 21, 

Rudolph called Marshall, “sound[ing] kind of upset,” and said that 

“he was supposed to be home by now.” Rudolph also said that he 

and Youngster were in a hotel room, and Marshall heard a man 

 2 Marshall also testified that Rudolph said Youngster had gotten in 

trouble in prison for throwing a heated towel in an inmate’s face. The lead 

detective in Moulder’s case admitted that there was no record of Moulder doing 

that.

3 An Ohio-based investigator testified at trial that Xenia is a suburb of 

Dayton.
4

laughing in the background. Marshall called Rudolph back a few 

hours later because he had “never seen [Rudolph] upset” or “heard 

him talk like that,” but Rudolph did not answer. 

On July 22, after the 11:00 a.m. hotel check-out time had 

passed and housekeeping had knocked on the door of Rudolph’s room 

but gotten no reply, the hotel manager called the police. Responding 

police officers discovered Rudolph lying in one of the two beds in the 

room. He had been killed by a gunshot to the back of his head. The 

murder weapon was never recovered, but a firearms expert testified 

that the bullet was fired from a revolver. According to his sister, 

Rudolph had a wallet, but no wallet or money (other than three 

dimes) was found in the room. Rudolph’s cell phone was also not 

found. The hotel room door had been locked, there were no signs of

a struggle, and Rudolph looked like he had been sleeping when shot, 

which led Detective Mitchell Plumb—the lead detective on the 

case—to conclude that Rudolph knew his shooter. The car Rudolph 

had rented was found outside a boarded-up apartment complex. 

Detective Plumb testified that a trail from the apartment complex 
5

through the woods “led directly to where one of Moulder’s family 

lived at in an apartment.” That location was also about 1,000 feet 

from an address where Moulder used to live. 

Moulder, who was from the Atlanta area but had served time

in prison with Rudolph in Ohio, was released on parole in May 2006 

and began living in Xenia, Ohio. He was between 12 and 14 years 

younger than Rudolph. Rudolph’s phone records showed that his 

phone called Moulder’s sister’s phone seven times on the morning of 

July 20, beginning at 4:19 a.m. Moulder’s sister told Detective 

Plumb that Moulder had called her from a blocked number and 

asked if she needed any money; she said no. The sister testified that 

some time after the call, she saw Moulder at their mother’s house in 

Georgia. Detective Plumb contacted law enforcement officials in 

Ohio, and on July 28, they located and arrested Moulder for 

violating his parole by possessing crack cocaine, among other 

reasons. When he was arrested, he had a “little over $800” in his 

pocket. 
6

Detective Plumb interviewed Moulder in Ohio.4 Moulder told 

Detective Plumb that he had served time with and was good friends 

with Rudolph and that he knew Rudolph was traveling south with 

another person for a drug deal. The detective suggested that the 

other person was called “Youngster,” and Moulder agreed. Moulder 

further explained that Youngster had set up the deal and although 

Moulder gave Rudolph $1250 to be used in the deal, he did not go 

with Youngster and Rudolph to complete the transaction. Moulder 

maintained that he had not left Ohio during the period of time in 

which the drug deal and Rudolph’s murder occurred in Atlanta. 

When asked to describe “Youngster,” Moulder said that 

Youngster had been housed in a different prison pod than the one he 

and Rudolph lived in and described Youngster as “short” and “dark 

skinned” with two gold teeth and “‘Youngster’ tattooed across his 

shoulder blades.” Detective Plumb was not able to identify 

 4 This interview was video-recorded and played for the jury.
7

Youngster based on this information.5 He and several other 

witnesses called by the State testified that Moulder was not known 

by the alias or nickname “Youngster.” After about one year, the case 

went cold.

In 2013, the case was picked up by a cold-case investigator, who 

reached out to Aletha Hughes, who was dating Moulder at the time 

of the crimes in 2006 but who had since separated from Moulder and 

moved to Indiana. Hughes traveled to Georgia and gave a statement 

to the District Attorney’s office on December 18, 2014.6 Her 

statement was consistent with her trial testimony, which was as 

 5 At trial, Detective Plumb testified that he gave Moulder’s description 

of “Youngster” to “Ohio Corrections.” He was told that there were several 

people in the prison system known as “Youngster,” but there was no one 

matching the description Moulder gave. This testimony is a subject of one of 

Moulder’s claims of ineffective assistance of counsel, discussed in Division 3 (b)

below.

6 When Hughes arrived in Georgia on December 17, Moulder sent her a 

text message saying that he had also traveled to Georgia. He asked her what 

hotel she was staying in, offered to hire her a lawyer, told her that she did not 

need to talk to the police, and told her she should ride back from Georgia with 

him. Hughes testified that Moulder’s messages and his presence in Georgia 

“scared” her. After Moulder was arrested, he sent Hughes letters that she 

testified had “undertones of threats.” 
8

follows. On the evening of July 21, 2006, Moulder called her “in an 

urgency” and said that he was at his mother’s house in Georgia and 

needed Hughes “to come get him now.” Hughes did not have enough 

money to drive from Ohio to Georgia, so Moulder’s mother wired her 

money, which Hughes used to rent a car. She started driving that 

night, arriving in Georgia by “the early morning hours” of July 22. 

She met Moulder, who did not have any belongings with him, in a 

parking lot, and then they “immediately” drove back to Ohio.7 

Hughes also testified that about two weeks before she drove to 

Georgia, Moulder showed her a revolver, and shortly before he left, 

he told her that “he and his buddy from prison [were] going 

somewhere.” She testified that when Moulder was told soon after 

he got back from his trip that police were looking for him, he told 

Hughes that “something had happened to his friend, and they 

wanted to question him about it.” She asked him, “did he do it, and 

he said no.” When she said he needed to talk to the police, Moulder 

 7 The investigator who interviewed Hughes testified that she said she 

arrived in Georgia at 4:30 a.m. and left “after just a short period of time.” 
9

responded, “F**k the police.” Hughes had not given the police this 

information in 2006 because she had “loved” and “trusted” Moulder.

On December 19, 2014, Moulder was arrested for Rudolph’s 

murder. Moulder did not testify at trial. His defense was that he 

was not “Youngster,” and that even if he was in Georgia at the time 

of the crimes, the State had not proven that he traveled to Georgia 

with Rudolph or was ever in Rudolph’s hotel room; Moulder 

emphasized the lack of forensic evidence at the scene of Rudolph’s 

murder and argued that the State had not completed a thorough 

investigation.

2. Moulder argues that the evidence presented at trial was not 

sufficient to support his convictions for the crimes allegedly 

committed in 2006 under Jackson v. Virginia, 443 U.S. 307 (99 SCt 

2781, 61 LEd2d 560) (1979).8 In evaluating the sufficiency of the 

evidence as a matter of constitutional due process, we view all of the 

evidence presented at trial in the light most favorable to the verdicts 

 8 Moulder does not challenge the sufficiency of the evidence supporting 

his conviction for influencing a witness in 2014. 
10

and consider whether any rational juror could have found the 

defendant guilty beyond a reasonable doubt of the crimes of which 

he was convicted. See Jackson, 443 U.S. at 319; Clark v. State, 315 

Ga. 423, 427 (883 SE2d 317) (2023). “We leave to the jury the 

resolution of conflicts or inconsistencies in the evidence, credibility 

of witnesses, and reasonable inferences to be derived from the facts.” 

Clark, 315 Ga. at 427 (citation and punctuation omitted). Moulder 

also challenges his convictions for the 2006 crimes under OCGA 

§ 24-14-6, which says: “To warrant a conviction on circumstantial 

evidence, the proved facts shall not only be consistent with the 

hypothesis of guilt, but shall exclude every other reasonable 

hypothesis save that of the guilt of the accused.” “Whether a 

hypothesis is reasonable or not is for the jury to decide.” Davenport 

v. State, 309 Ga. 385, 388-389 (846 SE2d 83) (2020) (citation and 

punctuation omitted).

The evidence discussed above was sufficient to support 

Moulder’s convictions as a matter of federal due process under 

Jackson. The evidence was also sufficient as a matter of Georgia 
11

statutory law under OCGA § 24-14-6 to support the jury’s rejection 

of Moulder’s hypothesis that he was not “Youngster” and that 

Youngster (not Moulder) killed Rudolph. See, e.g., Winston v. State, 

303 Ga. 604, 607 (814 SE2d 408) (2018) (holding that the evidence 

was sufficient under Jackson and OCGA § 24-14-6, where “the 

evidence showed appellant was the last person known to be with the 

victim at the time the killing took place”).

3. Moulder next argues that his counsel provided ineffective 

assistance in five ways. To prevail on a claim of ineffective 

assistance of counsel, a defendant generally must show that 

counsel’s performance was deficient and that the deficient 

performance resulted in prejudice to the defendant. See Strickland

v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674)

(1984). To satisfy the deficiency prong, a defendant must 

demonstrate that his attorney “performed their duties in an 

objectively unreasonable way, considering all the circumstances and 

in the light of prevailing professional norms.” Bates v. State, 313 

Ga. 57, 62 (867 SE2d 140) (2022). See also Strickland, 466 U.S. at 
12

687-688. To satisfy the prejudice prong, a defendant must establish 

a reasonable probability that, in the absence of counsel’s deficient 

performance, the result of the trial would have been different. See

Strickland, 466 U.S. at 694. “If an appellant fails to meet his or her 

burden of proving either prong of the Strickland test, the reviewing 

court does not have to examine the other prong.” Bates, 313 Ga. at 

63. 

(a) At trial, the State alleged that OCGA § 17-3-2 (1) applied 

to toll the seven- and four-year statutes of limitation that would 

have otherwise barred prosecution of the non-murder crimes from 

2006 for which Moulder was charged.9 The jury found Moulder 

guilty of those crimes, indicating that it found that the State had 

proven that the tolling provision it alleged applied. Moulder 

contends that the evidence did not support the allegation that OCGA

§ 17-3-2 (1) applied and argues that his trial counsel provided 

 9 OCGA § 17-3-2 says: “The period within which a prosecution must be 

commenced under Code Section 17-3-1 or other applicable statute does not 

include any period in which: (1) The accused is not usually and publicly a 

resident within this state.”
13

ineffective assistance by failing to make that argument at trial.

In criminal cases, the statute of limitation runs . . . from 

the time of the criminal act to the time of indictment. 

Where an exception is relied upon to prevent the bar of 

the statute of limitation[ ], it must be alleged and proved. 

Indeed, the State bears the burden at trial to prove that a 

crime occurred within the statute of limitation, or, if an 

exception to the statute is alleged, to prove that the case 

properly falls within the exception. 

Taylor v. State, 306 Ga. 277, 286 (830 SE2d 90) (2019) (citations and 

punctuation omitted).

Based on actions Moulder allegedly committed with respect to 

Rudolph in July 2006, the grand jury charged Moulder in March 

2015 with two counts of armed robbery, which has a seven-year 

statute of limitation, see OCGA § 17-3-1 (b), and possession of a 

firearm during the commission of a crime, which has a four-year 

statute of limitation, see OCGA § 17-3-1 (c).10 It is undisputed that 

 10 OCGA § 17-3-1 (b) provides a seven-year limitation period for “crimes 

punishable by death or life imprisonment,” and armed robbery is punishable 

by life in prison, see OCGA § 16-8-41 (b). OCGA § 17-3-1 (c) provides a fouryear limitation period for other felonies. Moulder was also charged with

aggravated assault, but Moulder’s claim of ineffective assistance of counsel as 

to that count is moot because that count merged into Moulder’s conviction for 

murder. See Sims v. State, 312 Ga. 322, 330 (862 SE2d 534) (2021) (“[B]ecause 

no conviction was entered on Sims’s aggravated assault charge, his ineffective 
14

those crimes were indicted after their respective limitation periods 

had run, but the State alleged in the indictment that OCGA § 17-3-

2 (1) tolled the statutes of limitation because Moulder was “not 

usually and publicly a resident within the State of Georgia from July 

21, 2006 through December 18, 2014.”

Although the jury was not given a specific instruction about the 

alleged tolling provision, the jury was instructed that the State had 

“to prove every material allegation of the indictment.” See Taylor, 

306 Ga. at 286 (explaining that a tolling allegation is a “material 

allegation”). The prosecutor noted in his closing argument that the 

State had to prove the tolling provision alleged, and argued that the 

State met this obligation because it had proven that Moulder “went 

back to Ohio” and was not in Georgia “from 2006 to 2014.” 

Moulder’s trial counsel did not mention tolling in his closing 

argument. And although Moulder does not contest that he stayed

 

assistance claim is moot to the extent that trial counsel’s alleged 

ineffectiveness relates to that crime[.]”). Murder has no limitation period. See 

OCGA § 17-3-1 (a).
15

in Ohio during the alleged tolling period, he contends that his 

counsel’s failure to argue that the evidence failed to show that he 

“absconded” from Georgia to Ohio constituted ineffective assistance 

because if counsel had made such an argument, the jury would have 

concluded that the State failed to prove the alleged tolling provision 

and would not have found Moulder guilty of the 2006 non-murder 

crimes. 

As noted above, OCGA § 17-3-2 (1) tolls the period within which 

a prosecution must be commenced for “any period” in which “[t]he 

accused is not usually and publicly a resident within this State.” 

This Court has explained that under this provision, “[i]f the offender 

shall abscond from this State, or so conceal himself that he cannot 

be arrested, such time during which he has been absent from the 

State, or concealed, shall not be computed or constitute any part of 

said several limitations.” Danuel v. State, 262 Ga. 349, 352 (418 

SE2d 45) (1992). Danuel defined “abscond” as 

“To go in a clandestine manner out of the jurisdiction of 

the courts, or to lie concealed, in order to avoid their 

process. To hide, conceal, or absent oneself clandestinely, 
16

with the intent to avoid legal process. Postponing 

limitations. Fleeing from arresting or prosecuting officers 

of this state.”

Id. (citing Black’s Law Dictionary, 5th Edition).11

As shown in the evidence discussed above, the State presented

strong evidence from which the jury could conclude that Moulder 

“absconded” from Georgia. See Danuel, 262 Ga. at 352. He called 

his girlfriend to pick him up “in an urgency.” His mother wired his 

girlfriend money so she could make the drive that night. She drove 

through the night, arrived in the early morning hours, and met him 

in a parking lot. They then drove back to Ohio “immediately.” 

Given this evidence, even assuming counsel was deficient for not 

raising an argument that Moulder did not “abscond,” Moulder has 

failed to show that there is a reasonable probability the jury would 

have been persuaded by any such argument. See Vasquez v. State, 

 11 Danuel interpreted a former version of OCGA § 17-3-2 (1), but we have 

held that the former version has the same meaning as the current statute. See 

Vasquez v. State, 306 Ga. 216, 224 (830 SE2d 143) (2019) (citing Danuel, 262 

Ga. at 251). The District Attorney asks us to overrule Danuel and conclude 

that there is no abscondment or concealment requirement in OCGA § 17-3-2 

(1), but because Moulder’s claim fails even under Danuel, we decline to 

consider the State’s request.
17

306 Ga. 216, 218-219, 224 (830 SE2d 143) (2019) (holding that the

evidence “authorized the jury to determine that Vasquez had 

absconded and that the statute of limitation was tolled” when the 

defendant and his wife left their Georgia home with “food on the 

table” and “clothing strewn about the house” and went to Mexico, 

did not tell any family members they were leaving, and later lied to

family members about their reason for being in Mexico).12 Thus,

Moulder has failed to demonstrate prejudice, and his claim of 

ineffective assistance fails. See, e.g., Mathews v. State, 314 Ga. 360, 

369 (877 SE2d 188) (2022) (holding that counsel did not provide

ineffective assistance by failing to argue to the jury that the evidence 

failed to prove that the appellant acted as a party to the crime where

there was strong evidence of the appellant’s guilt); Gaston v. State,

 12 Moulder argues that there is no evidence that he concealed himself 

while he was in Ohio. However, under Danuel, the State does not have to prove 

concealment for this tolling statute to apply. See Danuel, 262 Ga. at 352

(explaining that the former OCGA § 17-3-2 (1) applied “[i]f the offender shall 

abscond from this State, or so conceal himself that he cannot be arrested”) 

(Emphasis added, citation and punctuation omitted). As discussed above, 

there was compelling evidence that Moulder absconded from Georgia’s 

jurisdiction.
18

307 Ga. 634, 638 (837 SE2d 808) (2020) (holding that the appellant 

failed to prove prejudice based on counsel’s failure to request a selfdefense instruction because there was strong evidence disproving 

self-defense).13 

(b) Moulder next argues that trial counsel provided ineffective 

assistance by failing to raise hearsay and Confrontation Clause 

objections to testimony from Detective Plumb. On direct 

examination, the State asked Detective Plumb, “what, if anything, 

[he] did during the course of [his] investigation” to “look into the 

defendant’s assertions that there was a third party, Youngster, who 

was not him.” The detective responded:

Mr. Moulder gave me a description. So I contacted the 

Ohio Corrections, their intelligence unit in which they 

record all kinds of data about every prisoner that goes 

through the prison system. One of the things they do 

record are tattoos. They record those just like 

fingerprints. And I provided him with the—the physical 

 13 To the extent Moulder claims counsel should have moved for a directed 

verdict based on the State’s failure to prove tolling of the statutes of limitation, 

this contention also fails because the evidence authorized the jury to conclude 

that he absconded. See Mathews, 314 Ga. at 369 (rejecting the appellant’s 

claim that counsel provided ineffective assistance by failing to move for a 

directed verdict because there was sufficient evidence to support his 

convictions).
19

description: Shorter than Moulder, tattoo on his shoulder, 

black male, and provided that to them. And they were 

able to identify several Youngster names, but never 

anyone with a tattoo or associated with the pod that he 

referenced to.

Even assuming that the detective’s testimony that prison officials 

were unable to find someone matching Moulder’s description of 

“Youngster” was hearsay and a violation of the Confrontation Clause

contained in the Sixth Amendment to the United States 

Constitution, Moulder has failed to show that no reasonable 

attorney would have failed to object to this testimony. 

“[R]easonable decisions as to whether to raise a specific 

objection are ordinarily matters of trial strategy and provide no 

ground for reversal.” Bates, 313 Ga. at 67 (citation and punctuation 

omitted). Although the detective’s testimony somewhat undermined 

Moulder’s argument that he was not “Youngster,” insofar as it 

revealed that Moulder’s description of Youngster did not match any 

records from the Ohio correction system, not all of the alleged 

hearsay was detrimental to Moulder. To that end, the detective also 

said that the prison official he spoke with identified several people 
20

named Youngster, which supported Moulder’s argument that he was 

not Youngster—by showing that other people in the prison used the 

name Youngster and could have been the person to whom Rudolph 

was referring, notwithstanding the fact that they did not match 

every detail given by Moulder. 

Also, in closing argument, counsel explained to the jury that he 

did not raise “a constant bunch of objections, because . . . I wanted 

you to hear the evidence.” By not objecting to the detective’s 

testimony, counsel allowed the jury to hear about the investigation 

the State had done to find “Youngster,” and then emphasized in his 

closing argument that the investigation was not sufficient. For 

example, counsel pointed out that the State did not ask for prison 

records to try to find a person who (unlike Moulder) matched

Marshall’s description of Youngster as someone who got in trouble 

in prison for throwing a heated towel in someone’s face. Counsel 

also noted that the State did not ask the Ohio Department of 

Corrections for contact information for people who knew Rudolph 

and could have been asked to identify Youngster, and suggested that 
21

the State should have asked prison guards if they remembered the

housing pod Rudolph was in and the other people who were also 

housed in it.

Thus, there was a reasonable strategic reason for counsel not 

to object to the detective’s fairly summary statement that an 

unnamed person from the “intelligence unit” in “Ohio Corrections” 

could not find anyone matching Moulder’s physical description of 

Youngster. See Fuller v. State, 316 Ga. 127, 131 (886 SE2d 798) 

(2023) (holding that counsel’s performance was not deficient by 

failing to raise a “best evidence” objection to testimony about a 

message the appellant allegedly sent when counsel “emphasized the 

missing message to the jury in support of his broader argument 

attacking [the witness’s] credibility and the sufficiency of the State’s 

investigation into the case”); Bates, 313 Ga. at 67 (holding that 

counsel’s performance was not deficient where he made a strategic 

decision not to object to a witness because, although the witness 

gave some testimony that was detrimental to the appellant, counsel 

was able to cross-examine the witness and “elicit helpful 
22

testimony”); Marshall v. State, 299 Ga. 825, 827 (792 SE2d 350)

(2016) (holding that counsel’s performance was not deficient where 

he did not object to the introduction of pretrial statements of two 

witnesses “based on his determination that the recordings were 

more damaging to these witnesses’ overall credibility than they were 

corroborative of their trial testimony”).14 

Moreover, Moulder has failed to prove prejudice because he has 

failed to show that if counsel had raised an objection, the State could 

not have rephrased the question to elicit the same information 

without relying on hearsay. See Smith v. State, 298 Ga. 406, 415 

(782 SE2d 269) (2016) (concluding that a detective’s testimony that 

she identified two other persons of interest named Chris but 

 14 Moulder points out that at the motion-for-new-trial hearing, counsel 

testified, “If I failed to object to hearsay, then obviously, I made a mistake,” 

and said that he “hoped” he preserved the objection with a motion in limine he 

filed objecting to other out-of-court statements. However, 

we are not limited in our assessment of the objective 

reasonableness of lawyer performance to the subjective reasons 

offered by trial counsel for his conduct. If a reasonable lawyer 

might have done what the actual lawyer did—whether for the 

same reasons given by the actual lawyer or different reasons 

entirely—the actual lawyer cannot be said to have performed in an 

objectively unreasonable way. 

Hurt v. State, 298 Ga. 51, 57 (779 SE2d 313) (2015). 
23

ultimately “was able to verify that they did not have involvement” 

in the crimes was not clearly hearsay or subject to a Confrontation 

Clause objection, because the detective did not repeat the substance 

of what someone else told her but rather explained summarily why 

she had concluded that the other two men named Chris were not 

viable suspects). See also Davis v. State, 306 Ga. 140, 149 (829 SE2d 

321) (2019) (holding that the appellant failed to prove prejudice from 

counsel’s failure to object to leading questions “because an objection 

likely would not have prevented the admission of the testimony, 

either because the trial court would have permitted the questions to 

be answered . . . or because the prosecutor could have rephrased his 

questions”). Thus, this claim of ineffective assistance of counsel 

fails.

(c) Moulder argues that his counsel provided ineffective

assistance by failing properly to advise Moulder about whether his 

prior convictions could be used to impeach him if he testified. OCGA 

§ 24-6-609 pertains to impeachment by conviction of a crime, and 

subsection (b) says, with emphasis added: 
24

Evidence of a conviction under this Code section shall not 

be admissible if a period of more than ten years has 

elapsed since the date of the conviction or of the release of 

the witness from the confinement imposed for such 

conviction, whichever is the later date, unless the court 

determines, in the interests of justice, that the probative 

value of the conviction supported by specific facts and 

circumstances substantially outweighs its prejudicial 

effect. However, evidence of a conviction more than ten 

years old, as calculated in this subsection, shall not be 

admissible unless the proponent gives to the adverse party 

sufficient advance written notice of intent to use such 

evidence to provide the adverse party with a fair 

opportunity to contest the use of such evidence.

Before trial, the State filed a “Disclosure Certificate,” which 

stated that “[a]ll convictions will be used . . . for impeachment 

pursuant to OCGA § 24-6-609.” At the time of his trial in 2018, 

Moulder had three prior felony convictions: robbery in October 1999 

and tampering with evidence and conspiracy to commit aggravated 

burglary in August 2000. There was no clear evidence presented as 

to when Moulder was released from “confinement imposed for 

[these] convictions,” but we will assume for the sake of this 

argument that it was more than 10 years before trial. 

At the close of the State’s evidence at trial, Moulder’s counsel 
25

informed the court that he had spoken to Moulder about Moulder’s 

right to testify and “advised him that if he testifies, the State has a 

right to cross-examine him, and that the State could attempt to 

impeach him with some of his prior convictions.” Moulder confirmed 

that he and his lawyer had “talked about all that,” and Moulder

informed the court that he had chosen not to testify. 

At the motion for new trial hearing, trial counsel testified that 

he told Moulder that “if he chose to testify, the State could attempt 

to impeach him with his criminal history,” and counsel testified that 

his understanding was that if a conviction is older than ten years, it 

is “the court’s discretion to let it in.” Moulder testified at the motionfor-new-trial hearing that the “sole reason” he did not testify at trial 

was because his counsel told him, “You take the stand, they’re going 

to bring up your past.” In denying Moulder’s motion for new trial, 

the trial court concluded that Moulder’s counsel “properly advised 

him” about this issue.

Moulder has failed to demonstrate that his counsel performed 

deficiently in providing advice on this issue. On the contrary, 
26

counsel’s statement that the State “could attempt” to use Moulder’s 

prior convictions as impeachment was correct. See OCGA § 24-6-

609 (b) (providing that the court can admit such convictions if “the 

court determines, in the interests of justice, that the probative value 

of the conviction . . . substantially outweighs its prejudicial effect” 

and the proponent has given sufficient advance written notice). And 

it was reasonable for counsel to share this information with Moulder 

as something Moulder should consider in deciding whether to 

testify. Thus, Moulder’s claim of ineffective assistance of counsel 

fails. See Warren v. State, 314 Ga. 598, 604 (878 SE2d 438) (2022) 

(denying the appellant’s claim of ineffective assistance of counsel 

and explaining, “it is generally enough for counsel to advise the 

defendant about the ‘pros and cons’ of testifying and explain that the 

ultimate choice is the defendant’s to make, whether the defendant 

testifies and then regrets it . . . or does not testify and later wishes 

he had”).

(d) Moulder argues that his trial counsel provided ineffective 

assistance by misrepresenting the reasonable-doubt standard with 
27

the following italicized statements. Near the beginning of his 

closing argument, counsel said:

[I]t boils down to this. If—if they have proven to you, 

beyond a reasonable doubt, and there’s no fancy words for 

beyond a reasonable doubt, what does your gut say to you? 

If your gut says, “You know what? I know he did it,” then 

find him guilty. If you go back there and you deliberate 

and you say, “Well, this—this just really doesn’t make 

sense to me,” then he’s not guilty.

At the end of his argument, counsel said:

[I]f your heart of hearts says he did it when you back there, 

find him guilty. But I suspect when you go back and you 

look at everything logically, you’ll agree with me that 

there isn’t any proof that he did this. And there’s a lot out 

there that you just don’t know, which would have been 

helpful.

At the motion-for-new-trial hearing, Moulder’s trial counsel 

testified: “I did not believe, based on the evidence that was 

presented, that [the jurors] would find, in their heart of hearts, that 

[Moulder] did it, and I knew that the court was going to instruct the 

jury as to the law.”15

 15 The trial court charged the jury that it was the court’s duty “to instruct 

you on that law” and that “opening or closing remarks of the attorneys or 

questions asked by the attorneys” were not evidence. The court also defined
28

With respect to closing argument, “defense counsel is 

permitted wide latitude . . . and is not ineffective simply because 

another attorney might have used different language or placed a 

different emphasis on the evidence.” Anthony v. State, 311 Ga. 293, 

298 (857 SE2d 682) (2021). Furthermore, “a closing argument is to 

be judged in the context in which it is made.” Id. Here, reading 

counsel’s closing argument as a whole, counsel used the phrases at 

issue to emphasize the lack of evidence presented by the State, 

knowing that the trial court would instruct the jury on the legal 

definition of reasonable doubt. Moulder has not overcome the strong 

presumption that counsel’s performance fell within the wide range 

of reasonable professional assistance. See, e.g., Anthony, 311 Ga. at

298 (holding that counsel’s strategic decision to concede in closing 

argument that his client was guilty of lesser charges and focus on 

 

reasonable doubt: 

A reasonable doubt means just what it says. A reasonable doubt 

is a doubt of a fair-minded, impartial juror honestly seeking the 

truth. A reasonable doubt is a doubt based upon common sense 

and reason. It does not mean a vague or arbitrary doubt, but is a 

doubt for which a reason can be given arising from a consideration 

of the evidence, a lack of evidence or a conflict in the evidence.
29

arguing that his client did not have the intent for malice murder was 

not deficient). 

(e) Finally, Moulder argues that counsel provided ineffective 

assistance by not objecting to a jury charge about statements of fact 

made during formal court proceedings. At trial, Moulder’s counsel 

requested the following jury instruction: “An admission in judicio is 

binding and conclusive as to the party who made it.” The trial court 

agreed to give the instruction but modified it slightly, without 

objection from trial counsel, and instructed the jury: “Statements of 

fact made during formal court proceedings are binding and 

conclusive as against the party who made them.” 

In his closing argument, trial counsel discussed evidence about 

the inconsistency between Moulder’s December 18 arrest warrant—

in which Detective Plumb “swore under oath” that Moulder shot the 

victim—and a December 20 search warrant affidavit—for which

Detective Plumb gave information to an Ohio police officer, who 

“swore under oath” that “the victim was shot and killed by an 

unknown suspect.” Counsel then explained: 
30

I ask[ed] for a jury charge, and it’s basically called 

admission in judicio; right? You swear under oath that 

something is true, then—then it can be held against you. 

They swore under oath that an unknown suspect killed 

Anthony Rudolph one day after they swore under oath 

that Joshua Moulder did it. Statements of facts made 

during formal court proceedings are binding and 

conclusive as against the party who made them. . . . 

So the police swore under oath that he’s the shooter 

one day. And then the next day, they say an unknown 

suspect shot him. And that also was under oath. . . . 

Why is there a difference? Because here’s the thing. 

In the federal level when they go to arrest somebody, they 

have all their ducks in a row. They essentially nailed 

down their case. They are going to arrest you and prepare 

the indictment immediately. . . . But see, in the state 

system, they arrest and then they investigate. 

At the motion-for-new-trial hearing, counsel explained that he 

requested this instruction because he wanted to highlight 

inconsistencies in affidavits completed by investigators. 

“Decisions on requests to charge involve trial tactics to which 

we must afford substantial latitude, and they provide no grounds for 

reversal unless such tactical decisions are so patently unreasonable 

that no competent attorney would have chosen them.” Smith v. 

State, 306 Ga. 556, 558 (832 SE2d 379) (2019). Moulder has not 

shown that counsel’s tactical decision was patently unreasonable. 
31

Counsel requested the instruction to make an argument about the 

warrants, and in closing, he used the instruction to argue that the 

police’s swearing under oath that the shooter was unknown 

undermined the validity of their identification of Moulder as the 

shooter and of their overall investigation.16 Because this was not a 

patently unreasonable strategy, Moulder’s claim of ineffective 

assistance of counsel fails. See Daughtie v. State, 297 Ga. 261, 266 

(773 SE2d 263) (2015) (“The fact that another attorney may have 

pursued a different strategy does not render trial counsel 

ineffective.”).17

 16 Moulder argues that because he was a “party” in the case, the 

instruction led the jury to credit Moulder’s statements against him, such as his 

statements to Hughes that something happened to his friend. However, none 

of Moulder’s out-of-court statements were made during “formal court 

proceedings,” and there is no indication in the record that the jury applied the 

instruction as Moulder fears. See Nundra v. State, 316 Ga. 1, 16 (885 SE2d 

790) (2023) (“We typically presume juries follow the instructions that they are 

given by the trial court, absent evidence to the contrary.”).

17 Moulder argues that the deficiencies he has alleged in his claims of 

ineffective assistance, when viewed in the aggregate, prejudiced his trial. See 

Lewis v. State, 312 Ga. 537, 547 (863 SE2d 65) (2021) (“It is the prejudice 

arising from counsel’s errors that is constitutionally relevant, not that each 

individual error by counsel should be considered in a vacuum.”). However, we 

have assumed counsel’s deficiency with respect to a single claim of ineffective 

assistance and concluded that counsel was not deficient in any other respect. 
32

Judgment affirmed. All the Justices concur. 

 

Therefore, this claim presents nothing additional for us to review. See, e.g., 

Wynn v. State, 313 Ga. 827, 840-841 (874 SE2d 42) (2022) (concluding in the 

context of the evaluation of the cumulative effect of alleged trial court errors, 

that “there is no basis for evaluating the cumulative effect of errors because we 

have identified only one error and rejected Wynn’s other claims”).