McFarland v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.




                                                 In the
                            Supreme Court of Georgia
                                            No. S26A0403
                                          Travis McFarland
                                                  v.
                                             The State

                         On Appeal from the Superior Court of Troup County
                                           No. 22R0639

                                         Decided: April 21, 2026


                   ELLINGTON, Justice.
                A Troup County jury found Travis McFarland guilty of fel-
          ony murder and other crimes in connection with the shooting
          death of James Ponder. 1 McFarland contends the evidence was

                   1 The crimes occurred on February 9, 2022. On September 7, 2022, a
          Troup County grand jury indicted McFarland for violating provisions of the
          Street Gang Act (Counts 1 and 2); felony murder (predicated upon aggravated
          assault with a deadly weapon) (Count 3); aggravated assault with a deadly
          weapon (Count 4); felony murder (predicated upon criminal attempt to commit
          armed robbery) (Count 5); criminal attempt to commit armed robbery (Count
          6); and possession of firearm during the commission of a felony (Count 7). After
          a trial that commenced on September 26, the jury found McFarland guilty on
          all counts. On October 5, 2022, the trial court sentenced McFarland to serve
          life in prison for felony murder (Count 3) and merged the conviction for aggra-
          vated assault (Count 4) into the Count 3 felony murder conviction, while the
          remaining felony murder conviction (Count 5) was vacated by operation of law.
          The court then imposed a 20-year prison term for each violation of the Street
          Gang Act, with the sentence for Count 1 to run consecutive to his life sentence
          under Count 3 and his sentence for Count 2 to run consecutive to his sentence
          for Count 1; a 30-year prison term for his criminal attempt to commit armed
insufficient to support his convictions for violating the Street
Gang Terrorism and Prevention Act (the “Street Gang Act”),
OCGA § 16-15-1 et seq. He also contends the trial court erred in
refusing to give McFarland’s requested jury instruction on justi-
fication and that his trial counsel provided constitutionally inef-
fective assistance. As explained below, we discern no reversible
error.
      Viewed in the light most favorable to the jury’s verdicts,
the evidence showed the following. On February 9, 2022, Ponder
made arrangements through McFarland’s cousin to buy a hand-
gun and some marijuana for $250. At around 8:00 p.m., Ponder
and his friend, Trevor Sturkie, drove to 909 Troup Street in Troup
County to meet the seller. Ponder drove his Honda Civic, and
Sturkie sat in the passenger seat. Upon arriving, as Ponder was
getting out of his car, Sturkie observed a car slowly passing by
them. The passenger in that car was peering at them through his
open window. Ponder went to the house at 909 Troup Street, but
returned without having completed the transaction.
       Two men accompanied Ponder as he returned to his car. As
Ponder got in the driver’s seat, the two men, one of whom was
later identified as McFarland, got in the back. Ponder told Sturkie
that he was “going to give [the men] a ride down the street.”
Sturkie testified that one of the men said: “[H]ey [B]lood, did dude


robbery conviction, to run consecutive to his Street Gang Act sentence under
Count 2; and a five-year prison term for the firearm offense, to run consecutive
to the criminal attempt offense. On October 7, 2022, McFarland filed a motion
for new trial. New counsel amended the motion for new trial on December 23,
2024. After a hearing held on March 5, 2025, the trial court entered a written
order denying the motion on March 7, 2025. McFarland filed a timely notice
of appeal on March 19, 2025. This appeal was docketed to the term beginning
in December 2025, and the case was submitted for a decision on the briefs.




                                       2
get that yet?” Because the two men were giving Ponder directions,
Sturkie offered to switch seats with one of them. They declined;
one said: “I’m good where I’m at.” Then, Sturkie heard someone
“racking” a pistol, that is, pulling the pistol’s slide to chamber a
round. The man sitting behind Ponder said: “[D]ude don’t want to
sell you his, but I’ll sell you mine.” After being directed to circle
the block, Ponder stopped his car near 909 Troup Street, having
returned to where he first stopped. Ponder asked the man in the
backseat how much he wanted for his gun and began to take cash
from his pocket.
       According to Sturkie, when Ponder presented the cash, the
men behind him said, “Give it up, give it up.” They tried to wrestle
Ponder’s cash from his hands and began pistol-whipping him with
their guns. During the struggle, Sturkie heard two gunshots. Im-
mediately thereafter, the two men fled from the car. Seeing that
Ponder had been shot, Sturkie drove him to a nearby hospital.
Sturkie testified that he did not see Ponder with a gun that night.
        LaGrange Police Department investigators photographed
Ponder’s car and gathered evidence from it. They observed $280
in cash scattered around the driver’s seat. They also saw a .22-
caliber pistol in the driver’s seat; however, there was no evidence
that the pistol had been fired. An unopened pocketknife and other
personal belongings were collected from Ponder’s body at the hos-
pital. Investigators later recovered two spent shell casings and a
cell phone from the back seats. From information stored on the
phone, including photographs and social media accounts, investi-
gators determined that the cell phone belonged to McFarland.
      Based on information gleaned from McFarland’s cell
phone, Investigators executed a search warrant at 909 Troup
Street the day after the shooting. They seized two .40-caliber




                                 3
handguns—a Smith & Wesson and a Glock—hidden in an aban-
doned vehicle on the property. A firearms expert determined that
the shell casings recovered from Ponder’s car and the two bullets
removed from Ponder’s body during the autopsy had been fired
from the Smith & Wesson seized from 909 Troup Street. A finger-
print found on the Smith & Wesson matched McFarland’s finger-
prints. Photographs and videos from McFarland’s phone and so-
cial media accounts show him in possession of a .40-caliber Smith
& Wesson handgun.
       The medical examiner testified that Ponder suffered four
gunshot wounds, two to his fingers, one though his back, and one
to his thigh. He explained that the four wounds could have been
caused by two bullets. He opined that, based on his analysis of the
wounds, the weapon was fired from behind and to the right of
Ponder’s position in the car. The cause of death was attributed to
multiple gunshot wounds; the manner of death was ruled a hom-
icide.
       Three days after the murder, McFarland spoke with his sis-
ter on the phone. The call was recorded. McFarland complained
that he did not want to talk about “sad s**t,” and told his sister
that she “didn’t understand.” When his sister asked him who had
been sitting behind the victim, McFarland said “not me,” but he
did not deny being in the car. Instead he said that he would not
“stack,” that is, cooperate with investigators or implicate those
involved in the shooting. McFarland evaded arrest until March 1,
2022, when officers with the United States Marshals Service ap-
prehended him in Heard County.
       The State presented the testimony of a Lagrange Police De-
partment investigator with expertise in street gangs. He testified
to the existence of the Bloods criminal street gang and its affili-
ates, including the Bell Haven Bounty Hunter Bloods and Young




                                4
Slime Life (“YSL”); McFarland’s association with the gang and its
subdivisions; and the nature of the gang’s activities as well as the
gang’s expectations of its members.
        The investigator testified that information gleaned from
McFarland’s social media accounts and text messages revealed
indicia of his gang affiliation, including the use of gang language,
signs, and statements promoting his participation in gang activi-
ties, including burglaries and armed robberies. For example, the
State submitted a videorecording of McFarland and others mak-
ing Bloods’ gang signs while at 909 Troup Street. McFarland cre-
ated gang-related names for his social media accounts, including
“YSL Blazer 5,” “Slime Fam Hext,” and “Slime Hext.” Social me-
dia messages from the day before the shooting showed McFarland
discussing “hitting licks,” that is, committing thefts. The expert
also testified that “stacking” or “stack nine” was a term used by
the Bloods gang that meant “to snitch” or cooperate with a police
investigation, which members of the gang are forbidden from do-
ing. The expert also testified that members of McFarland’s street
gang are expected to have their own weapons, pay dues, contrib-
ute to the gang through crimes (“putting in work”), including by
“robbing or stealing[, i.e.,] ‘sliming’ individuals.” Further, the
gang’s primary activities at the time of the shooting included
“buying and selling illegal firearms, armed robberies, [and]
thefts.”
       Finally, the expert opined that McFarland’s conduct in this
case was consistent with participating in the activities of the
Bloods criminal street gang, that it would further the interest of
the Bloods criminal street gang, and that the conduct would be
consistent with a young Bloods member seeking to maintain or
increase status among other gang members and thus in the gang




                                 5
because “[a]rmed robberies [are] just one way in which gang mem-
bers endeavoring to maintain at minimum or increase their sta-
tus based off expectations and guidelines for the gang[.]”
       1. McFarland contends that the evidence was constitution-
ally insufficient to show that the predicate crimes charged were
intended to promote himself within the gang or enhance the
gang’s reputation. Therefore, he argues, the State failed to prove
a nexus between those crimes and gang activity, making the evi-
dence insufficient to support his Street Gang Act convictions. We
disagree.
        When evaluating challenges to the sufficiency of the evi-
dence to support criminal convictions as a matter of constitutional
due process, “we view the evidence presented at trial in the light
most favorable to the verdicts and ask whether any rational trier
of fact could have found the defendant guilty beyond a reasonable
doubt of the crimes of which he was convicted.” Boyd v. State, 306
Ga. 204, 207 (2019) (citing Jackson v. Virginia, 443 US 307, 319
(1979)). “We leave to the jury the resolution of conflicts or incon-
sistencies in the evidence, credibility of witnesses, and reasonable
inferences derived from the facts.” Boyd, 306 Ga. at 207. And the
jury decides “whether the defense theory was reasonable and not
excluded by the other evidence.” Hamilton v. State, 309 Ga. 1, 6
(2020) (citation and punctuation omitted).
       To carry its burden of proving that McFarland violated the
Street Gang Act, the State was required to establish:
      (1) the existence of a “criminal street gang,” defined
      in OCGA § 16-15-3(3) as “any organization, associa-
      tion, or group of three or more persons associated in
      fact, whether formal or informal, which engages in
      criminal gang activity”; (2) the defendant’s associa-
      tion with the gang; (3) that the defendant committed




                                 6
      any of several enumerated criminal offenses, includ-
      ing those “involving violence, possession of a
      weapon, or use of a weapon”; and (4) that the crime
      was intended to further the interests of the gang.

Rooks v. State, 317 Ga. 743, 753 (2023). With respect to the fourth
element, which is the focus of McFarland’s claim of error, to prove
“that the commission of the predicate act was intended to further
the interests of the gang,” the state must show a nexus between
the predicate act and the defendant’s intent to further street gang
activity. See Butler v. State, 310 Ga. 892, 897 (2021); Rodriguez v.
State, 284 Ga. 803, 807 (2009). The State may meet this proof re-
quirement in several ways, including, among other things, pre-
senting “evidence of a defendant’s association with a gang and
participation in its activities before and during the crimes
charged.” Bradford v. State, ___ Ga. ___(2026), S26A0194, slip op.
at 25 (Ga. Feb. 17, 2026) (2026 Ga. LEXIS 52).
       The State charged McFarland with violating the Street
Gang Act in two respects: (a) violating OCGA § 16-15-4(a), while
“being associated with the Bloods, a criminal street gang, [he] did
unlawfully conduct and participate in criminal gang activity
through the commission of the offenses of [the predicate acts
charged];” and (b) violating OCGA § 16-15-4(b) while “being asso-
ciated with the Bloods, a criminal street gang, [he] did commit the
offenses of [the predicate acts charged] … with the intent to main-
tain and increase his status in said gang[.]’
       McFarland only challenges the sufficiency of the evidence
as to the fourth element, so we limit our analysis to that element.
See Blocker v. State, 316 Ga. 568, 575–76 (2023) (in sufficiency
review, considering only elements of Street Gang Act challenged
by the appellant). Here, the evidence shows that the State carried




                                 7
its burden of proving that McFarland committed the predicate of-
fenses of felony murder, attempted armed robbery, aggravated as-
sault, and possession of a firearm during the commission of a fel-
ony with the intent to further of the gang’s interests as well as to
maintain or increase his status with the gang. The trial transcript
shows that the State qualified a gang expert who testified about
the existence of the Bell Haven Bounty Hunters, a subset of the
Bloods gang, in Troup County. He testified about the expectations
the gang has of their gang members, such as “putting in work”—
committing violent crimes, property crimes, and drug deals—to
advance within the gang as well as to further the gang’s interests.
He testified about McFarland’s association with the gang, show-
ing that, in McFarland’s social media accounts, he identified him-
self as “Slime Fam Hext” and uses specific Bloods vernacular,
such as “slime” and “stack,” as well as the gang’s gestures and
signs. The expert explained that “sliming” or robbing was an ex-
pectation within the gang, and that the primary activities of the
Bloods and their subsets in Troup County around the time of the
shooting involved possessing and selling illegal firearms and com-
mitting armed robberies and other thefts. He also noted that “not
snitching” was another expectation of the gang, and McFarland
explicitly told his sister several days after the murder that he
would not “stack,” i.e. “snitch.” Further, the evidence showed that,
shortly before the shooting, McFarland posted a message on social
media stating that he was looking for an “easy target,” and was
interested in “hitting a lick.” Finally, when McFarland and his
associate were in the back seat of the car behind Ponder, they re-
ferred to each other as “[B]lood” shortly before McFarland shot
Ponder.
      This evidence was sufficient for the jury to find beyond a
reasonable doubt that McFarland’s crimes revealed an intent to
further the interests of the gang and to maintain and increase his




                                 8
status in the gang. See, e.g., Beamon v. State, 314 Ga. 798, 803
(2022) (explaining that the jury could infer from the evidence—
before, during, and after the crimes—that the crimes were com-
mitted with the intent to further the interests of the gang); Hayes
v. State, 298 Ga. 339, 342–43 (2016) (“Evidence of [a defendant’s]
association with the [criminal street gang] and his participation
in [its] activities before and during the crimes charged [can] pro-
vide the required nexus between his criminal acts and the intent
to further the gang’s interests.”).
       2. McFarland argues that the trial court committed reversi-
ble error by declining to give his requested jury charge on justifi-
cation, which he argues was his sole theory of defense. We discern
no error. Our review of the trial transcript revealed no evidence
that would have justified the charge.
      To authorize a jury charge, there must be slight evi-
      dence supporting the charge. In determining
      whether evidence supporting a justification instruc-
      tion was presented at trial, we can consider only the
      evidence that the record shows was actually pre-
      sented to the jury. “A person is justified in threaten-
      ing or using force against another when and to the
      extent that he or she reasonably believes that such
      threat or force is necessary to defend himself or her-
      self or a third person against such other’s imminent
      use of unlawful force[.]” OCGA § 16-3-21(a).

Williams v. State, 316 Ga. 304, 311 (2023) (citation omitted).
       McFarland asserts that his defense “relied on the physical
evidence presented of an unholstered gun found within Ponder’s
reach, and a knife that fell off of Ponder’s person as they pulled




                                 9
him out of the car at the hospital.” Although there was some evi-
dence that Ponder had on or near his person a .22 caliber pistol
and a pocketknife at the time of the shooting, there was no evi-
dence introduced at trial from which the jury could infer that
McFarland would have seen those weapons or that, having known
of those weapons’ presence, he reasonably believed that Ponder
posed an imminent threat to him. The record shows only that Pon-
der had a closed pocketknife and a firearm somewhere on or near
his person at the time of the shooting; it did not show that Ponder
ever gave any indication of their imminent use or that he posed
an imminent threat. See Williams, 316 Ga. at 311.
       McFarland did not testify at trial. However, Sturkie testi-
fied unequivocally that he did not see Ponder with a gun at any
time during the car ride. Further, based on Sturkie’s testimony
and photographs of the car, the jury could infer that McFarland
could not see a weapon on the front seat given that McFarland’s
view would have been blocked by the driver’s seat. Further, he
only leaned forward to pistol whip Ponder after Ponder, who was
in the front seat, turned toward him and presented cash to pay
for the gun. Sturkie also testified that he saw Ponder’s hands,
which were grasping for his cash as he was being pistol-whipped.
Finally, the closed pocketknife was removed from Ponder’s person
in the hospital. There was no evidence that it was even visible to
anyone in the car at the time of the shooting. Based on this evi-
dence, there is nothing from which the jury could infer that
McFarland acted in self-defense. Moreover, even were we to as-
sume that McFarland may have seen the .22 pistol, this Court has
found that a justification charge was not required where the vic-
tim merely possessed a firearm or weapon prior to the shooting.
See, e.g., Williams, 316 Ga. at 311 (holding that the victim’s mere
“possession and handling of a gun and bullets near the time that
he was shot” was insufficient as slight evidence warranting a self-




                                10
defense charge); Hunter v. State, 281 Ga. 693, 695 (2007) (justifi-
cation charge not warranted where, although the victim was pre-
viously seen with a weapon, there was “no evidence of any threat
so as to give rise to a reasonable belief that [the defendant] must
shoot [the victim] in the back of the head to avoid death or great
bodily injury to himself”).
       3. McFarland contends that his trial counsel was constitu-
tionally ineffective in three respects. As explained below, the trial
court correctly determined that McFarland failed to carry his bur-
den of showing that trial counsel’s performance was deficient.
       To prevail on his claim of ineffective assistance of counsel,
McFarland must show that counsel’s performance was constitu-
tionally deficient and that the deficient performance resulted in
prejudice to him. See Strickland v. Washington, 466 US 668, 687–
96 (1984); Middlebrooks v. State, 310 Ga. 748, 751 (2021). To sat-
isfy the deficiency prong, McFarland 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 (2013). This
requires that he overcome the “strong presumption” that trial
counsel’s performance was adequate. Marshall v. State, 297 Ga.
445, 448 (2015).
      To carry this burden, [McFarland] must show that
      no reasonable lawyer would have done what his law-
      yer did, or would have failed to do what his lawyer
      did not. In particular, decisions regarding trial tac-
      tics and strategy may form the basis for an ineffec-
      tiveness claim only if they were so patently unrea-
      sonable that no competent attorney would have fol-
      lowed such a course.




                                 11
Vann v. State, 311 Ga. 301, 303 (2021) (citations omitted). To sat-
isfy the prejudice prong, McFarland must establish a reasonable
probability that, in the absence of counsel’s deficient perfor-
mance, the result of his trial would have been different. Lawrence
v. State, 286 Ga. 533, 533–34 (2010). “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.”
Id.
       (a) McFarland argues that his defense counsel was defi-
cient in that he did not object to testimony from the State’s gang
expert regarding a “highly prejudicial and irrelevant” 2018 mur-
der. McFarland argues that the mention of the 2018 murder “in-
sinuate[d]” to the jury that he was involved in that crime.
       The record shows that, when the prosecutor asked the
State’s gang expert whether he was familiar with the “Slime Fam
Hext” social media account found on McFarland’s phone, the ex-
pert said that he was. Unprompted, the witness added: “And part
of my knowledge came from a December 2018 murder investiga-
tion that occurred actually on Troup Street.” The witness did not
testify that McFarland was a suspect in the prior investigation.
The prosecutor did not ask any follow-up questions about the
prior murder investigation; instead, he asked the witness about
the “sorts of things that you have reviewed in preparation for this
case[.]” The expert then discussed at length the social media ac-
counts he reviewed in connection with his investigation. At the
motion for new trial hearing, defense counsel could not recall why
he did not object to the expert’s mention of the 2018 murder.
      McFarland has not demonstrated with legal argument how
the expert’s testimony was objectionable. But assuming without
deciding that it was objectionable, the failure to object to an iso-




                                12
lated, brief, and non-responsive remark that facially did not in-
culpate McFarland was not objectively unreasonable trial strat-
egy. See State v. Goff, 308 Ga. 330, 335–36 (2020) (“Given the
fleeting, nonspecific nature of [the allegedly objectionable testi-
mony], we cannot say that trial counsel’s assessment was objec-
tively unreasonable.”); Brown v. State, 307 Ga. 24, 33 (2019) (no
deficient performance in counsel’s failure to object to investiga-
tor’s “passing and nonresponsive” reference to the appellant’s per-
sonal information being used in a jail database); Kennedy v. State,
304 Ga. 285, 289 (2018) (“Because the prosecutor’s statements, in
context, did not constitute a clear propensity argument, Kennedy
has not demonstrated that no reasonable attorney would have
failed to object to those statements.”).
        (b) McFarland contends that, when the trial court ruled
against defense counsel’s request for a justification charge, coun-
sel mistakenly thought that meant he was not allowed to argue
justification during closing argument. McFarland argues that his
“entire theory of defense was justification and, based on trial
counsel’s misunderstanding of the law, it was completely aban-
doned at closing.” At the motion for new trial hearing, counsel
said he erroneously believed that he could not argue justification
in closing based on the court’s ruling, but he also agreed that it is
usually good trial strategy to base a closing argument on the law
that the jury will receive.
      Assuming without deciding that trial counsel’s decision not
to argue justification in closing argument based on a misunder-
standing of law constituted deficient performance, 2 McFarland


       2 “Unquestionably, the jury is to receive the law from the court, not
from counsel. However, counsel have every right to refer to applicable law in




                                     13
has not carried his burden of demonstrating prejudice. To satisfy
the prejudice prong, McFarland must establish a reasonable prob-
ability that, in the absence of counsel’s deficient performance, the
result of his trial would have been different. Lawrence, 286 Ga. at
533–34. He has not demonstrated that such a reasonable proba-
bility exists under the circumstances here. First, there was no ev-
idence submitted from which the jury could reasonably infer that
McFarland acted in self-defense. Second, the trial court did not
charge the jury on the law of justification. Absent both a jury
charge on justification and record evidence to support that de-
fense, it is unlikely the jury would have found a self-defense ar-
gument credible, especially considering the strong evidence of
McFarland’s guilt. Further, in this case, the argument that coun-
sel made was more aligned with the evidence presented. He
pointed to weaknesses, inconsistencies, and omissions in the
State’s case—for example, that Sturkie never identified McFar-
land—and argued that the evidence did not prove the charges be-
yond a reasonable doubt. Given these circumstances, trial coun-
sel’s closing is not one that would be considered patently unrea-
sonable. It was, in fact, an objectively strategically sound argu-
ment. See, e.g., Blackwell v. State, 302 Ga. 820, 825 (2018) (find-
ing it is not patently unreasonable for trial counsel to base the
defense on the evidence at trial rather than risk losing credibility
with the jury); Smith v. State, 284 Ga. 599, 602 (2008) (“[C]losing
argument is appropriate as long as it is based on evidence that is
properly before the jury.”). Consequently, having failed to estab-
lish the requisite prejudice, this claim of ineffective assistance of


argument; it is law that the court will not charge the jury that counsel is pro-
hibited from presenting.” Kirkland v. State, 271 Ga. 217, 219 (2003) (citation
omitted; emphasis in original.) Nevertheless, defense counsel has wide latitude
to draw deductions from the evidence, even if the deductions are illogical or
unreasonable. See Morgan v. State, 267 Ga. 203, 203–04 (1996).




                                      14
counsel fails.
        (c) McFarland contends that his defense counsel was defi-
cient for failing to file a demurrer challenging “the flawed indict-
ment.” He argues that the indictment did not contain “the essen-
tial element of a specified nexus required in the Street Gang Ter-
rorism and Prevention Act.” McFarland does not indicate
whether counsel should have filed a general or a special demurrer
nor does he cite to any statute or caselaw that expressly requires
an indictment under the Street Gang Act to specify what evidence
constitutes the “nexus.”
       A general demurrer challenges the sufficiency of the
       substance of an indictment. The general demurrer
       must be granted if the indictment fails to either (1)
       recite the language of the statute that sets out all
       the elements of the offense charged or (2) allege the
       facts necessary to establish a violation of a criminal
       statute. Put another way, a general demurrer will be
       granted if the defendant can admit each and every
       fact alleged in the indictment and still be innocent of
       any crime. Because granting a general demurrer re-
       sults in dismissal of the charges, an attorney who
       fails to file a meritorious general demurrer may be
       held constitutionally ineffective.

Moss v. State, 322 Ga. 757, 765 (2025) (citations and punctuation
omitted). Nevertheless, “an indictment couched in the language
of the statute alleged to have been violated is not subject to a gen-
eral demurrer.” State v. Wyatt, 295 Ga. 257, 260 (2014) (citations
and punctuation omitted).
       The trial court correctly found that a demurrer to the




                                 15
Street Gang Act counts would have been futile because the indict-
ment tracked the language of the statutes, contained all the ele-
ments of the offenses, listed the predicate offenses, alleged the
date of the offense and the county where the offense occurred,
listed the name of the gang with which McFarland associated and
that gang’s status as a criminal street gang, the manner in which
the crimes were committed, and the identity of the victim. Such
allegations provide enough information that the indictment is not
susceptible to a general demurrer. As discussed in Division 1, the
fourth element of a violation of the Street Gang Act is “that the
crime was intended to further the interests of the gang.” Boyd,
306 Ga. at 209. The existence of a “nexus” between the act and
the gang’s interest is not a statutory element separate from the
fourth element; it is how this Court has characterized the proof
necessary to establish that element. This Court determined as a
matter of statutory construction that the State was required to
prove a nexus with gang interests as a matter of evidentiary
proof. See Rodriguez v. State, 284 Ga. 803, 805 (2009) (construing
OCGA § 16-15-4 in light of the definitions of “criminal gang activ-
ity” and “criminal street gang” in OCGA § 16-5-3). See also
McKinney v. State, 318 Ga. 566, 570 (2024).
       Although “[a]n indictment that is not subject to a general
demurrer may ... be subject to a special demurrer, which chal-
lenges the specificity of the indictment,” Wyatt, 295 Ga. at 260,
the Street Gang Act counts of the indictment were sufficiently
specific to survive a special demurrer. See, e.g. Bullard v. State
307 Ga. 482, 487 (2019) (upholding specificity of indictment that
expressly alleged “the date of the offense, the county where the
offense occurred, the gang with which Bullard was associated,
that gang’s status as a criminal street gang, the predicate act of
criminal gang activity, the identity of the victim of that act, and
the manner in which that act was done.” (citation omitted)).




                                16
       Therefore, because the indictment was not defective, a de-
murrer would have been meritless, and defense counsel cannot be
deficient for failing to file a meritless motion. See Mims v. State,
304 Ga. 851, 858 (2019).
       (d) Finally, McFarland argues in one sentence that “trial
counsel’s failure to object to the prejudicial photos was constitu-
tionally deficient, warranting a new trial.” There is no citation
to the record indicating which of the many photographs admitted
at trial were allegedly unduly prejudicial, nor did McFarland offer
any legal analysis on this issue. Accordingly, McFarland has
failed to carry his burden of demonstrating that his trial counsel
was either deficient or that McFarland was prejudiced by any al-
leged deficiency. See, e.g., Middlebrooks, 310 Ga. at 751 (a defend-
ant must overcome the “strong presumption” that trial counsel’s
performance was adequate); Bates v. State, 313 Ga. 57, 69 (2022)
(appellant’s ineffective assistance claim fails because he did not
carry his burden of showing prejudice as a result of trial counsel’s
alleged failure to object).
       Judgment affirmed. All the Justices concur, except Warren,
P.J., not participating.




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