         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   January 24, 2006 Session

                STATE OF TENNESSEE v. KAMAL MUHAMMAD

                    Appeal from the Criminal Court for Davidson County
                          No. 2003-D-2648 Seth Norman, Judge



                   No. M2004-03067-CCA-R3-CD - Filed February 17, 2006


The appellant, Kamal Muhammed, was indicted with second offense driving under the influence.
After a jury trial, the appellant was convicted of the indicted offense. As a result, he was sentenced
to eleven months and twenty-nine days. All but seventy-five days of the sentence were suspended.
The appellant challenges his conviction on appeal, arguing that the State failed to prove venue and
that he received ineffective assistance of counsel. We affirm the judgment of the trial court.


      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed

JERRY L. SMITH , J., delivered the opinion of the court, in which THOMAS T. WOODALL, and ROBERT
W. WEDEMEYER , JJ., joined.

Jeremy Gourley, Nashville, Tennessee, for the appellant, Kamal Muhammed.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Scott McMurtry, Assistant District Attorney
General, for the appellee, State of Tennessee.



                                             OPINION

        On April 18, 2004, at approximately 9:40 p.m., Officer Coleman Womack of the
Metropolitan Nashville Police Department was on special assignment doing DUI interdiction in the
area of the Nashville Airport. Officer Womack was traveling along Donelson Pike when the
appellant drove toward him at a high rate of speed. Officer Womack turned around so that he could
follow and pace the appellant. Officer Womack initiated a traffic stop after he determined that the
appellant was driving approximately seventy miles-per-hour and witnessed the appellant’s vehicle
cross the center line.
        During the stop, Officer Womack noticed the appellant’s blood-shot and watery eyes, slurred
speech and an odor of alcoholic beverages. According to the officer, the appellant admitted that he
had consumed six beers over the course of the day at a party hosted by his brother. As the appellant
exited his car, he was unsteady on his feet. Officer Womack asked the appellant to perform several
field sobriety tasks, the walk-and-turn and the one-legged stand. The appellant was unable to
satisfactorily complete the walk-and-turn and complained of a disability that would not allow him
to stand on one leg. Officer Womack read the appellant the implied consent law at that time and the
appellant agreed to take a breathalyzer test.

        Officer Womack summoned a DUI officer to the scene. While they waited, Officer Womack
closely observed the appellant for twenty minutes during which the appellant did not regurgitate,
burp, cough, chew gum or have anything in his mouth. Officer Womack felt that the appellant was
not capable of driving safely.

       Sergeant David Slessinger, a certified DUI officer, arrived on the scene near the intersection
of Donelson Pike and Interstate 40. The appellant admitted to Officer Slessinger that he had
consumed six beers over the course of the day. Officer Slessinger noticed an odor of alcoholic
beverages about the appellant’s person. The breathalyzer test indicated that the appellant had a
breath-alcohol content of .13 percent.

        At trial, counsel for the appellant moved to dismiss the case on the grounds that the State
failed to prove venue. The trial court denied the motion. The appellant was convicted by a jury of
second offense DUI and sentenced by the trial court to eleven months and twenty-nine days. The
trial court suspended all but seventy-five days of the appellant’s sentence. Subsequently, the
appellant filed a motion for new trial, arguing that the State failed to prove venue and that his
sentence was excessive, among other things. After the denial of the motion for new trial, the
appellant appealed. On appeal, the following issues are presented for our review: (1) whether the
State failed to prove venue; and (2) whether the appellant received ineffective assistance of counsel.


                                               Analysis

                                                Venue

        First, the appellant complains that the trial court erred by failing to grant the appellant’s
motion to dismiss at the close of the State’s proof. Specifically, the appellant contends that the State
failed to prove venue in Davidson County. The State disagrees.

        Article I, Section 9 of the Tennessee Constitution and Tennessee Rule of Criminal Procedure
18 provide that an accused is entitled to trial in the county in which the offense is committed. Smith
v. State, 607 S.W.2d 906, 907 (Tenn. Crim. App. 1980). Venue is a jurisdictional matter and not
an element of the crime charged. State v. Hutcherson, 790 S.W.2d 532, 535 (Tenn. 1990). The
burden is on the prosecution to prove that the offense was committed in the county provided in the


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indictment. Ellis v. Carlton, 986 S.W.2d 600, 602 (Tenn. Crim. App. 1998) (citing Harvey v. State,
376 S.W.2d 497, 498 (Tenn. 1964)). Venue may be shown by a preponderance of the evidence
which may be either direct or circumstantial. Ricky Harris v. State, No. 03C01- 9611-CR-00410,
1998 WL 191441, at *12 (Tenn. Crim. App., at Knoxville, Apr. 23, 1998), perm. app. denied (Tenn.
1998) (citing Hopper v. State, 326 S.W.2d 448, 451 (Tenn. 1959)). Slight evidence with respect to
venue will be enough to carry the burden of proof if that evidence is uncontradicted. State v. Smith,
926 S.W.2d 267, 269 (Tenn. Crim. App. 1995). The question of venue is for the jury to determine,
and a jury is entitled to draw reasonable inferences from proven facts as to the issue of venue. See
Tenn. R. Crim. P. 18(a); State v. Johnson, 673 S.W.2d 877 (Tenn. Crim. App. 1984).

        An examination of the record herein reveals that at no time during the trial did the State ask
the direct and important question, “Did these events occur in Davidson County, Tennessee?” Had
this been done, there would be no issue on appeal. Nevertheless, the proof established that Officer
Coleman Womack worked for the “Metro Police Department” and was assigned to patrol the area
covering “Inglewood and East Nashville.” On the night in question, Officer Womack was on patrol
“in the Donelson area, around Donelson Pike, Murfreesboro Road, Elm Hill Pike area” “in front of
the airport.” More importantly, Officer Womack testified that the traffic stop involving the appellant
occurred near the intersection of “Donelson Pike and I-40.” Officer Womack summoned Officer
Slessinger to the scene to administer the breathalyzer test and Officer Slessinger testified that he was
not assigned to a zone “other than Davidson County.” We determine from our examination of the
record that there is sufficient evidence for the jury to infer that the offense of DUI occurred within
the boundaries of Davidson County. This issue is without merit.

                                  Ineffective Assistance of Counsel

          Next, the appellant complains that he was denied the right to effective assistance of counsel
at trial. The State contends that the issue is waived for failure to bring it in the motion for new trial.


        We have repeatedly warned that the decision to include this issue on direct appeal is “fraught
with peril.” State v. Jimmy L. Sluder, No. 1236, 1990 WL 26552, at *7 (Tenn. Crim. App., at
Knoxville, Mar. 14, 1990), perm. app. denied, (Tenn. 1990). The defendant risks having the issue
resolved finally “without an evidentiary hearing which, if held, might be the only way harm could
be shown--a prerequisite for relief in ineffective trial counsel claims.” Jimmy Wayne Wilson v.
State, No. 909, 1991 WL 87245, at *6 (Tenn. Crim. App., at Knoxville, May 29, 1991).

        In other words, claims of ineffective assistance of counsel are generally more appropriately
raised in a petition for post-conviction relief rather than on direct appeal. See State v. Carruthers,
35 S.W.3d 516, 551 (Tenn. 2000); see also State v. Anderson, 835 S.W.2d 600, 606 (Tenn. Crim.
App. 1992). Moreover, once the merits of an ineffective assistance of counsel claim have been
addressed on direct appeal, the issue may not be revisited in a post-conviction proceeding. See
Bobby Allen Joyner v. State, No. 03C01-9807-CR-00260, 1999 WL318832, at *2 (Tenn. Crim.
App., at Knoxville, May 19, 1999), perm. app. denied, (Tenn. 1999). Thus, the better practice is to


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reserve the issue for a post-conviction proceeding in the event the direct appeal is unsuccessful.
Brandon, 2002 WL 31373470, at *2.

        The appellant claims that trial counsel was ineffective for the following reasons: (1) trial
counsel failed to call him to testify at his sentencing hearing; (2) trial counsel did not fully explore
the defense; and (3) trial counsel failed to properly pursue the motion to suppress.

         This Court reviews a claim of ineffective assistance of counsel under the standards of Baxter
v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668 (1984). The
petitioner has the burden to prove that (1) the attorney’s performance was deficient, and (2) the
deficient performance resulted in prejudice to the defendant so as to deprive him of a fair trial.
Strickland, 466 U.S. at 687; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Butler v. State, 789
S.W.2d 898, 899 (Tenn. 1990). The failure to prove either deficiency or prejudice justifies denial
of relief; therefore, the court need not address the components in any particular order or even address
both if one is insufficient. Goad, 938 S.W.2d at 370. In order to establish prejudice, the petitioner
must establish a “reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

        In order to determine whether counsel provided effective assistance, we examine whether
counsel’s performance was within the range of competence demanded of attorneys in criminal cases.
Baxter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s conduct
falls within the wide range of acceptable professional assistance. Strickland, 466 U.S. at 689; State
v. Honeycutt, 54 S.W.3d 762, 769 (Tenn. 2001). Therefore, in order to prove a deficiency, a
petitioner must show “that counsel’s acts or omissions were so serious as to fall below an objective
standard of reasonableness under prevailing professional norms.” Goad, 938 S.W.2d at 369 (citing
Strickland, 466 U.S. at 688).

        There was no evidence presented at the hearing on the motion for new trial to support his
claim that trial counsel was deficient because the issue was not raised in the motion for a new trial.
This issue is waived. Tenn. r. App. P. 3(e); State v. Meade, 942 S.W.2d 561, 566 (Tenn. Crim. App.
1996).

                                             Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.


                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




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