Moccia v. State , 174 Ga. App. 764 ( 1985 )

Deen, Presiding Judge.

The appellant, Richard Moccia, was convicted of obstruction of a law enforcement officer, for which he was sentenced to pay a $300 fine, 12 months’ probation, 80 hours of community service, and ordered to fulfill the requirements of three Boy Scouts of America merit badges within seven months. On appeal, Moccia primarily contends that the trial court erred in failing to direct a verdict of acquittal, because the evidence was insufficient to support the conviction.

While on patrol at approximately 5:00 a.m. on March 3, 1984, Officer Robert Jones of the Cobb County Police Department observed the appellant’s automobile being driven erratically, and he proceeded to stop the vehicle. The appellant’s brother actually was the driver and the appellant was a passenger. The police officer testified that the appellant’s brother was cooperative in consenting to a regimen of four field sobriety tests; however, after two of these tests, which the appellant’s brother performed unsatisfactorily, the appellant also got out of the car and demanded to know what was going on. The officer instructed the appellant to get back into the car and that he would explain when he completed administering the tests. The appellant refused to re-enter the vehicle, and, instead, with some apparent hostility, declared that he had the right to stand where he was and a right to find out what was going on with his brother. The police officer acknowledged this, but reiterated his instruction for the appellant to get back into the car. The appellant still refused and continued to interrupt the officer’s conducting the sobriety tests with his verbal demands to know what was going on.

The officer then requested a back-up unit, which arrived shortly thereafter, and, although only two sobriety tests had been performed, the officer believed probable cause existed to place the appellant’s brother under arrest for driving under the influence. The appellant was also arrested for obstructing the police officer.

Although the appellant claimed that during these verbal exchanges he had been about 30 feet from the officer, the officer testified that they stood approximately 10 to 12 feet from each other. The officer admitted that the appellant made no threats of violence or physical advance, but claimed that he had felt threatened by the situation, i.e., two men against one officer on a somewhat isolated road, the appellant’s obnoxious attitude, and the suspected intoxication of both the appellant and his brother. The officer further explained that past experience had taught him that these situations were volatile and often became violent. Although, according to the officer, the appellant expressed some derogatory opinion about the police force while being transported to the police station, he had not resisted his arrest. Held:

OCGA § 16-10-24 provides that “[a] person who knowingly and wilfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties . . .” is guilty of obstructing a law enforcement officer. This statute certainly encompasses statements by a party to a law enforcement officer which may reasonably be interpreted as a threat of violence and which amount to an obstruction or hindrance. Dumas v. State, 159 Ga. App. 517 (284 SE2d 33) (1981). However, mere remonstrance or disagreement does not constitute obstruction. McCook v. State, 145 Ga. App. 3 (243 SE2d 289) (1978). “It can hardly be said, fairly, to be resisting or opposing an officer to argue with him, unless that argument becomes violent so as to amount to something calculated to force the officer to desist.” Statham v. State, 41 Ga. 507, 512-513 (1871).

In the instant case, the evidence was uncontroverted that the appellant made neither verbal nor physical threat of violence to the officer. The appellant was boldly obnoxious and contemptuous, but his conduct was no more interruptive or reprehensible than that of the defendant in McCook v. State, supra, wherein this court found the evidence insufficient to support the conviction for obstructing a law enforcement officer. Similarly, the evidence in this case was insufficient, and the trial court erred in not directing a verdict of acquittal.

Judgment reversed.

Birdsong, P. J., Sognier, Pope and Benham, JJ., concur. Banke, C. J., McMurray, P. J., Carley and Beasley, JJ., dissent.