In the Supreme Court of Georgia

Decided: August 24, 2021

S21A0874. SIMS v. THE STATE.

 WARREN, Justice.

Dion Sims appeals his convictions for malice murder and other 

crimes in connection with the shooting death of Alan Watson.1 On 

appeal, Sims contends that the evidence presented at his trial was 

legally insufficient to support his conviction; that the State failed to 

 1 The crimes occurred on or about August 3, 2001. On July 20, 2010, a 

Fulton County grand jury indicted Sims for malice murder, felony murder 

predicated on aggravated assault, felony murder predicated on possession of a 

firearm by a convicted felon, aggravated assault, possession of a firearm during 

the commission of a felony, and possession of a firearm by a convicted felon. 

On May 6, 2011, a jury found Sims guilty on all counts. On May 9, 2011, the 

trial court sentenced Sims to serve life in prison for malice murder, five years 

in prison for possession of a firearm by a convicted felon, and five consecutive 

years for possession of a firearm during the commission of a felony. The felony 

murder counts were vacated by operation of law, and the trial court merged 

the aggravated assault count for purposes of sentencing. Sims filed a motion 

for new trial on May 9, 2011, and he amended that motion four times, with the 

last amendment being filed on November 13, 2019. The trial court denied the 

motion for new trial, as amended, on January 27, 2021, and Sims filed a notice 

of appeal on February 22, 2021. The case was docketed to the April 2021 term 

of this Court and submitted for a decision on the briefs.
2

prove venue; and that his trial counsel provided constitutionally 

ineffective assistance by failing to file a plea in bar with respect to 

two counts of the indictment. Because we conclude that these 

contentions lack merit, we affirm. 

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

evidence presented at trial showed that a land surveyor found a 

skull while at work on July 1, 2009, in a heavily wooded area behind 

a house on Abner Place in Atlanta. Through clothing remnants, 

dental records, and DNA testing, the skull was identified as that of 

Alan Watson. The skull had a hole above the left eye and another 

hole in the rear of the skull that were consistent with Watson having 

died of a gunshot to the head. According to Watson’s grandmother, 

Watson lived with her in DeKalb County in 2001. He left home on 

Friday night, August 2, to go to a movie and never returned home. 

Watson’s sister testified that Sims lived very near her 

grandmother’s home and that, during the summer of 2001, Sims and 

Watson began “hanging out.” She added that Sims told her that he 

and his girlfriend, Tameka Wright, had gotten an apartment at the 
3

Flipper Temple Apartments and that Watson began “catching the 

bus with [Sims], going over there, hanging out with him.” 

Wright testified as follows. In August 2001, she lived in 

Apartment Number 18 at the Flipper Temple Apartments at 2479 

Abner Terrace. Her apartment was on the back side of the building 

on the ground floor, and her door opened up to “a lot of fence and 

woods.” At that time, she was dating Sims and had met Watson

twice. On the day that Watson was shot, she had told Sims to come 

to her apartment and get a gun that belonged to him. When she 

arrived home that day, Sims and Watson were playing cards in her 

apartment. Wright then went to the apartment of her sister, 

Lakeisha Wright, who lived in the same complex. Wright came back 

home “in the middle of the night.” Sims and Watson were in 

Wright’s bedroom sitting on her bed; they were not doing anything 

and were not arguing. Wright sat in the middle of the bed, Sims was 

sitting “at the top of [Wright’s] bed,” and Watson was sitting on the 

other side of Wright by the wall. Sims—without saying anything—

shot Watson, who slid to the floor. Sims then left the apartment. In 
4

“his last breath,” Watson told Wright that her “boyfriend killed 

[him].” 

Wright was “hysterical” and “in shock” and went back to her 

sister’s apartment. She told Lakeisha what had happened, and they 

returned to Wright’s apartment. Sims had also returned to the 

apartment, and Lakeisha asked Sims how the shooting happened. 

According to Wright, Sims “tried to say that the gun went off by 

mistake.” Shortly thereafter, a man named Larry came to her 

apartment and helped Sims wrap up Watson’s body and throw it in 

the woods outside Wright’s apartment. There was not much blood 

on the carpet after the shooting but Larry cut out the part of the 

carpet that had blood on it with a box cutter. Wright also testified 

that there was no blood on the wall of the bedroom, that she 

continued living in the apartment where the shooting occurred until 

2006, and that her carpet was replaced with tile at some point after 

the shooting. She did not report the shooting because she “feared 

for [her] life,” and said that Sims told her that he shot Watson 

because Watson “took something from him.” However, at another 
5

point in her testimony, Wright testified that Sims told her that the 

“bullet was meant for [her].” 

According to Lakeisha, Wright came to Lakeisha’s apartment 

late on the night Watson was shot and kept saying that someone 

was dead. Wright was a “nervous wreck” and “was crying.” 

Lakeisha then went to Wright’s apartment and saw Watson, who 

“wasn’t moving” and had a “hole in his head.” Sims “tried to explain” 

that it “was an accident,” but Wright “told [Lakeisha] that’s not what 

happened.” According to Lakeisha, Sims then “went to get Larry.” 

Lakeisha saw Sims and Larry “wrap[ ] the guy up.” When Lakeisha 

asked Wright if Wright wanted to call the police, Sims told Lakeisha 

that if she or her sister called the police, he would kill both of them. 

Lakeisha then went back to her apartment. 

Larry Baisden lived about “two minutes away” from the 

Flipper Temple Apartments, “spent a lot of time over there” doing 

work for residents, and knew Sims and Wright. According to 

Baisden, on the night Watson was shot, Baisden was helping 

someone move out of an apartment that was right above Wright’s 
6

apartment. Sims came up to the apartment where Baisden was 

working and told him that Sims would like help with “something” 

“later on” and would come “get [him].” About two hours later, Sims 

came back and got him, but did not tell him exactly what Sims

wanted help with. Baisden agreed to help, and when he went to 

Wright’s apartment, he saw Watson slumped against a wall in the 

bedroom and a gun on the bed. Sims told Baisden that Watson had 

committed suicide. Baisden told Sims to call 911, but Sims refused, 

contending that Wright would lose her apartment. Sims told 

Baisden that if Baisden did not help, Baisden would “be beside 

[Watson],” which Baisden understood as a threat. Baisden then 

helped Sims wrap Watson’s body in a comforter and carry it out of 

Wright’s apartment and across about 15 to 20 yards of open ground 

to a fence. There, they lifted Watson’s body over the fence and threw 

it into a wooded area. Sims wanted Baisden to help move Watson 

further into the wooded area, but Baisden declined and left. 

David Quinn, a detective with the Atlanta Police Department, 

was dispatched to investigate the discovery of the human remains 
7

that were later identified as Watson’s. At trial, Detective Quinn 

testified as follows: the skull was located in “northwest Atlanta, 

2471 Abner Place, which is off Hollywood Road in the northwest 

sector of the city.” When asked “[w]hat county is that,” he testified 

that it was Fulton County. The detective added that Abner Place 

intersected Abner Terrace at 2479 Abner Terrace. He described the 

skull as being located “in a wooded area in close proximity to the[ ] 

Flipper Temple Apartments at 2479 Abner Terrace” and “just 

opposite this particular apartment complex.” From the backyard of 

the house at 2471 Abner Place, Detective Quinn walked about 100 

yards into the woods to reach the remains. He collected the skull for 

examination, and later returned to the woods with cadaver dogs that 

located more remains. Erroll Curling, a maintenance worker at the 

apartment complex, said that Wright told Curling about Watson’s 

murder, but that Curling did not believe Wright because “he at that 

time conducted a review of the apartment and found no evidence of 

a murder.” Curling did not testify at trial. 

In June 2010, a GBI crime scene specialist processed the area 
8

of Wright’s former bedroom where Wright testified Watson allegedly 

was shot, looking for evidence of blood and bullets. The specialist 

testified that, before he performed his work, he was told that the 

apartment complex had completed “some type of work” in that

bedroom. He used luminol to test for the presence of blood; a swab 

of certain areas “fluoresced” for the presence of blood, but later 

testing showed “nothing significant” “in reference to suspected 

blood.” The specialist found no evidence of a bullet having been fired 

in the bedroom. Detective Quinn testified that the apartment had 

been rented six or seven times since Wright had moved out in 2006. 

Sims contends that the evidence was legally insufficient to 

support his convictions. His primary argument in this regard is that 

Wright’s testimony was not credible. In particular, he argues that 

the lack of blood or other forensic evidence at the crime scene did not 

support Wright’s testimony that Watson was shot while sitting on 

Wright’s bed; that Curling’s statement that he did not see evidence 

of the murder in Wright’s apartment when he examined it in 2001

contradicted Wright’s story; and that Wright’s testimony that Sims 
9

told her that the bullet was meant for her was not believable because 

Wright was sitting on the bed right next to Sims and Sims would 

have had to have missed shooting her at point-blank range. Sims 

contends that these are all reasons not to credit Wright’s testimony 

that the murder took place in her bedroom, as she testified, and that 

all of her testimony should be discounted as a result. 

When evaluating challenges to the sufficiency of the evidence, 

we view the evidence presented at trial in the light most favorable 

to the jury’s verdicts and ask whether any rational trier of fact could 

have found the defendant guilty beyond a reasonable doubt of the 

crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 

307, 319 (99 SCt 2781, 61 LE2d 560) (1979); Jones v. State, 304 Ga. 

594, 598 (820 SE2d 696) (2018). “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,” 

Smith v. State, 308 Ga. 81, 84 (839 SE2d 630) (2020), and we do not 

reweigh the evidence, Ivey v. State, 305 Ga. 156, 159 (824 SE2d 242) 

(2019).
10

All of the evidence Sims cites in support of his argument 

regarding the sufficiency of the evidence “can be characterized as 

presenting inconsistencies in the evidence, evidence that required 

assessment of a witness’s credibility, or inferences that could be 

drawn from the evidence presented at trial”—but those are matters 

for the “‘jury[’s] . . . resolution.’” Clark v. State, 309 Ga. 473, 478

(847 SE2d 364) (2020) (citation omitted). It was for the jury to 

determine Wright’s credibility and to resolve any conflicts or 

inconsistencies in the evidence. Bearing this in mind, we readily 

conclude that the evidence, when properly viewed in the light most 

favorable to the verdicts—including the evidence showing how the 

crimes occurred, the evidence that Sims said that he killed Watson 

because Watson “took something from him,” the evidence of the 

threats that Sims made to the Wright sisters and to Baisden, and 

the evidence of Sims’s disposal of Watson’s body—was sufficient for 

a rational trier of fact to have found Sims guilty beyond a reasonable 

doubt of the crimes for which he was convicted. See Jackson, 443 

U.S. at 319. 
11

2. Sims also argues that the State did not prove beyond a 

reasonable doubt that the crimes occurred in Fulton County. We 

disagree.

(a) “Unless venue must be changed to obtain an impartial 

jury, a criminal case must be tried ‘in the county where the crime 

was committed.’” Worthen v. State, 304 Ga. 862, 865 (823 SE2d 291) 

(2019) (quoting Ga. Const. of 1983, Art. VI, Sec. II, Par. VI). See 

also OCGA § 17-2-2 (a) (providing that “[c]riminal actions shall be 

tried in the county where the crime was committed”). “Generally, 

murder ‘shall be considered as having been committed in the county 

in which the cause of death was inflicted.’” Id. at 865 (quoting OCGA 

§ 17-2-2 (c)). “Venue is a jurisdictional fact that the State must prove 

beyond a reasonable doubt and can do so by direct or circumstantial 

evidence,” and “[d]etermining whether venue has been established 

is an issue soundly within the province of the jury.” Hernandez v. 

State, 304 Ga. 895, 898 (823 SE2d 272) (2019) (citation and 

punctuation omitted). And when 

examining whether the State has carried its burden, we 
12

view the evidence in the light most favorable to the 

verdict and must sustain the verdict if the evidence was 

sufficient to permit a rational trier of fact to find beyond 

a reasonable doubt that the crime was committed in the 

county where the defendant was indicted. 

Id. 

(b) Before turning to the merits of Sims’s claim that the State 

failed to prove venue beyond a reasonable doubt, we must address 

his contention that our decision in Worthen, which this Court 

decided many years after Sims committed his crimes, does not apply

retroactively in determining the sufficiency of the evidence of venue 

in his case. In Worthen, we held that in determining venue, jurors 

could infer that a crime occurred in a particular county based on the 

proximity of the crime scene to an address that is shown to be located

within that county. See 304 Ga. at 868-869. In so holding, we 

overruled cases—and in particular the holding of Jones v. State, 272 

Ga. 900, 903-904 (537 SE2d 80) (2000)—that rejected the idea that 

jurors could make such inferences. See Worthen, 304 Ga. at 866-
13

871, 874.2 

Sims argues that applying Worthen to his case would violate 

the Ex Post Facto Clauses of the United States and Georgia 

Constitutions. See U.S. Const., Art. I, Sec. 10, Cl. 1 (“No State shall 

. . . pass any . . . ex post facto Law . . . .”); Ga. Const. of 1983, Art. I, 

Sec. I, Par. X (“No bill of attainder, ex post facto law, retroactive law, 

or laws impairing the obligation of contract or making irrevocable 

grant of special privileges or immunities shall be passed.”).3 More 

specifically, Sims contends that Worthen “lower[ed] the quantum of 

evidence needed to obtain a conviction” and that it therefore cannot 

be applied retroactively to his case. We disagree. 

Sims relies primarily on “the well-known and oft-repeated 

explanation” that the protections of the Ex Post Facto Clause of the 

 2 Sims does not mention in his brief on appeal that we recently applied 

Worthen in at least two other cases in which venue was proven by evidence of 

proximity. See Velasco v. State, 306 Ga. 888, 891-892 (834 SE2d 21) (2019); 

Lay v. State, 305 Ga. 715, 718 (827 SE2d 671) (2019). 

3 Although Sims invokes the Georgia Constitution, he does not argue 

that the Georgia Constitution’s Ex Post Facto Clause should be interpreted 

differently than the United States Constitution’s. Accordingly, we do not 

consider a distinct ex post facto claim under the Georgia Constitution.
14

United States Constitution extend to, among other things, “‘[e]very 

law that alters the legal rules of evidence, and receives less, or 

different, testimony, than the law required at the time of the 

commission of the offense, in order to convict the offender.’” Rogers 

v. Tennessee, 532 U.S. 451, 456 (121 SCt 1693, 149 LE2d 697) (2001) 

(citation omitted). See also Postell v. Humphrey, 278 Ga. 651, 653 

(604 SE2d 517) (2004) (pointing to United States Supreme Court 

precedent and explaining that “legislative acts which implicate the 

‘core concern of the Ex Post Facto Clause’ under the Georgia 

Constitution are those which[, among other things,] . . . require less 

or different evidence for conviction than that required at the time of 

the offense”) (citation omitted). The United States Supreme Court, 

however, has held that “the text of the [Ex Post Facto] Clause makes 

clear” that “it is a limitation upon the powers of the Legislature, and 

does not of its own force apply to the Judicial Branch of government” 

and that “the strictures of the Ex Post Facto Clause” do not extend 

“to the context of common law judging.” Rogers, 532 U.S. at 456, 459 
15

(citation and punctuation omitted).4 Accord, e.g., Metrish v. 

Lancaster, 569 U.S. 351, 359-360 (133 SCt 1781, 185 LE2d 988) 

(2013) (citing Rogers for the proposition that “[s]trictly applying ex 

post facto principles to judicial decisionmaking . . . would place an 

unworkable and unacceptable restraint on normal judicial 

processes”); United States v. Dunlap, 936 F3d 821, 823 (8th Cir. 

2019) (explaining that “[t]he Ex Post Facto Clause of the 

Constitution does not apply to judicial decisions”); United States v. 

Treadwell, 593 F3d 990, 1015 (9th Cir. 2010) (“The Supreme Court 

has told us that the Ex Post Facto Clause applies to actions by 

legislatures; it does not apply to judicial decisions.”), overruled on 

other grounds by United States v. Miller, 953 F3d 1095 (9th Cir. 

2020); Harvey v. Merchan, Case No. S21A0143 (decided June 21, 

 4 The Rogers Court nonetheless explained “that limitations on ex post 

facto judicial decisionmaking are inherent in the notion of due process,” 532 

U.S. at 456, and held that in that case, the retroactive application of a 

Tennessee Supreme Court decision that abolished the common law “year and 

a day rule” was not “an exercise of the sort of unfair and arbitrary judicial 

action against which the Due Process Clause aims to protect.” Id. at 468. Sims 

makes no due process argument like that discussed in Rogers, and we do not 

consider any such argument here. 
16

2021), 2021 WL 2518868, at *10 n.12 (“[I]t is well established that 

the Ex Post Facto Clause of the United States Constitution applies 

only to criminal laws that retroactively impose or increase criminal 

punishment.”). Accordingly, the protections of the Ex Post Facto 

Clause of the United States Constitution do not apply to our decision 

in Worthen, and we apply our decision in Worthen and its progeny to 

Sims’s case. 

(c) We now turn back to Sims’s argument that the State failed

to prove beyond a reasonable doubt that the crimes occurred in 

Fulton County. The State alleged that Watson was shot and killed 

in Wright’s apartment, and Sims correctly notes that the State 

therefore had to prove that Wright’s apartment was located in 

Fulton County for his trial in that county to have been held in the 

correct venue. See Ga. Const. of 1983, Art. VI, Sec. II, Par. VI; OCGA 

§ 17-2-2 (a) and (c).

There was no direct evidence presented at trial showing that 

Wright’s apartment was located in Fulton County. However, the 

venue evidence presented at trial did show that the home at 2471 
17

Abner Place was located in Fulton County; that Watson’s body was 

located in a wooded area about 100 yards behind that home; and 

that 2471 Abner Place intersected Abner Terrace at 2479 Abner 

Terrace, which was the address of Wright’s apartment. Although 

the State did not present specific evidence showing exactly how close 

the Abner Place home, which was located in Fulton County, was to 

Wright’s apartment, it did present evidence that Watson’s remains 

were located in a wooded area about 100 yards behind the home at 

2471 Abner Place, that the remains were “in close proximity to” and 

“just opposite” Wright’s apartment, and that the woods where the 

remains were found were located about 15 to 20 yards from the door 

of Wright’s apartment. 

We conclude that the jury in this case reasonably could have 

inferred from evidence presented about the proximity of the crime 

scene to the Fulton County address of 2471 Abner Place that 

Wright’s apartment was also located in Fulton County, “particularly 

as there was no evidence or even argument that the crime scene 

[wa]s near a county line.” Lay v. State, 305 Ga. 715, 718 (827 SE2d 
18

671) (2019). See also Velasco v. State, 306 Ga. 888, 891 (834 SE2d 

21) (2019) (holding that even though there was no direct testimony 

that the areas where the crimes occurred—just in front of and 

behind the victim’s mobile home–were in Clayton County, the 

evidence was nevertheless sufficient to establish venue in Clayton 

County because there was evidence that the mobile home was 

located in that county and “[t]he jury could quite reasonably infer 

that the areas just in front of and behind the mobile home with a 

Clayton County address are also in Clayton County, particularly 

because there was no evidence or even argument that the crime 

scene is near a county line”); Lay, 305 Ga. at 718 (holding that 

evidence that the crimes occurred in the front yard of a home across 

the street from the victim’s Fulton County address was sufficient to 

prove that the crimes were committed in Fulton County); O’Donnell 

v. Smith, 294 Ga. 307, 314 (751 SE2d 324) (2013) (Nahmias, J., 

concurring) (“In the absence of evidence to the contrary . . . , jurors 

can very reasonably infer that a location within 100 yards of a 

location in a particular county is in the same county, since that fact 
19

is true of the overwhelming majority of locations in this State.”).5 

3. Sims contends that his trial counsel provided 

constitutionally ineffective assistance in failing to file a plea in bar 

on the basis that the statute of limitations barred his prosecution for 

aggravated assault (Count 4) and for possession of a firearm during 

commission of the felony of aggravated assault (Count 5). As 

explained below, his claim fails. 

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, 687-695 

 5 Two cases that Sims cites in support of his argument on appeal are 

distinguishable from this case because in those cases, no proximity evidence—

i.e., evidence about the distance between a specific address that was located in 

the county of the trial and the place where the crime occurred—was presented. 

See Quezada-Barrera v. State, 295 Ga. App. 747, 747 (673 SE2d 126) (2009) 

(holding that evidence of the address where the crime occurred, coupled with 

evidence that the officer who made the arrest at that address worked for 

Gwinnett County, was insufficient to establish venue in Gwinnett County); 

Starling v. State, 242 Ga. App. 685, 685 (530 SE2d 757) (2000) (holding that 

evidence that an officer who was employed by the Monroe County Sheriff’s 

Office and was on his way to work when he made the traffic stop in question 

was insufficient to establish venue in Monroe County where there was no 

evidence that the “officer’s route to work fell strictly within Monroe County”).
20

(104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 

356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a 

defendant must demonstrate that his attorney “performed at trial in 

an objectively unreasonable way considering all the circumstances 

and in the light of prevailing professional norms.” Romer v. State, 

293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466 

U.S. at 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.”

Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010).

To begin, because no conviction was entered on Sims’s 

aggravated assault charge, his ineffective assistance claim is moot 

to the extent that trial counsel’s alleged ineffectiveness relates to 

that crime; however, his ineffective assistance claim is not moot as 

to the firearm offense because that offense was predicated on the 
21

aggravated assault charge and resulted in a conviction. See Moss v. 

State, 311 Ga. 123, 128 (856 SE2d 280) (2021) (holding that the 

appellant’s claim that his trial counsel was ineffective in failing to 

file a demurrer to the aggravated battery count of his indictment, as 

well as to the felony murder and firearm counts that were predicated 

on the aggravated battery count, was moot as to the aggravated 

battery count because that count was merged into his felony murder 

conviction, but was not moot as to the felony murder and firearm 

offenses because “both of those counts were predicated on the 

aggravated battery and resulted in convictions”); Anthony v. State, 

311 Ga. 293, 299 n.3 (857 SE2d 682) (2021) (“We note that because 

no convictions were entered on Anthony’s felony murder charges, his 

ineffective assistance claims are moot to the extent they pertain to 

the portions of trial counsel’s closing argument that reference felony 

murder.”). 

With regard to the firearm offense alleged in Count 5, the 

indictment was returned almost nine years after the commission of 

that crime. Sims correctly notes that the applicable statute of 
22

limitation for the firearm offense is four years, see OCGA § 17-3-1 

(c), and that the statute of limitation for a crime is tolled for periods

during which “[t]he person committing the crime is unknown.” 

OCGA § 17-3-2 (2). He also correctly notes that where the State 

relies on “an exception . . . to prevent the bar of the statute of 

limitation, it must be alleged and proved.” Taylor v. State, 306 Ga. 

277, 286 (830 SE2d 90) (2019) (citation and punctuation omitted). 

Sims then argues that the State did not properly allege the exception 

to OCGA § 17-3-2 (2) in the indictment and that his prosecution for 

the firearm offense was barred by the four-year statute of limitation 

as a result.6 

Contrary to Sims’s contention, however, the State did properly 

allege the exception of § 17-3-2 (2) in Count 5 of the indictment, 

specifying “that the identity of the accused was not known to the 

State of Georgia until on or about May 10, 2010.” See Lewis v. State, 

 6 Sims does not contend that the person who committed the crimes was 

known to the State at any point before Watson’s remains were discovered in 

July 2009. 
23

306 Ga. 455, 463 (831 SE2d 771) (2019) (explaining that the State 

sufficiently “alleged an exception to the statutes of limitations, 

asserting that the statutes were tolled because [the appellant’s] 

identity was unknown until April 2008”); Taylor v. State, 174 Ga. 

52, 69 (162 SE 504) (1931) (“The particular facts which constitute 

exceptions to the bar of the statute of limitations need not be 

minutely alleged in the bill of indictment. It is sufficient if any of 

the exceptions stated in [the relevant Code section] be stated in the 

language therein employed.”) (citation and punctuation omitted), 

overruled on other grounds by Moore v. State, 254 Ga. 674, 677 (333 

SE2d 605) (1985), and Wood v. State, 219 Ga. 509, 514 (134 SE2d 8) 

(1963). 

Accordingly, even if trial counsel had filed a plea in bar as to 

Count 5 on the basis that the State had failed to allege the tolling 

provision of § 17-3-2 (2) in the indictment, the plea in bar would have 

been meritless. As a result, Sims has failed to show that trial 

counsel performed deficiently in failing to file a plea in bar. See

Moss, 311 Ga. at 129 (holding that the appellant failed to “show 
24

deficient performance, as counsel cannot be ineffective for failing to 

make a meritless motion”) (citation and punctuation omitted); 

Leekomon v. State, 351 Ga. App. 836, 838 (832 SE2d 437) (2019)

(holding that trial counsel had not performed deficiently by failing 

to file a plea in bar contending that the State had failed to allege in 

the indictment that OCGA § 17-3-2.1 (a) tolled the applicable statute 

of limitation where the record showed that the State had properly 

alleged the tolling provision and a plea in bar would have been 

meritless). 

Judgment affirmed. All the Justices concur.