Denny v. State , 222 Ga. App. 674 ( 1996 )

Johnson, Judge.

David William Denny was indicted on three counts of felony obstruction of a law enforcement officer. A jury found him guilty of three counts of misdemeanor obstruction of a law enforcement officer, and he appeals from the judgment entered on the jury’s verdict. On appeal, the presumption of innocence no longer prevails, we view the evidence in the light most favorable to the verdict, and we do not speculate as to which evidence the jury chose to believe or disbelieve. Gurlaskie v. State, 196 Ga. App. 794 (1) (397 SE2d 66) (1990). Viewed in that light, the evidence presented at trial established that three deputies from the Whitfield County Sheriff’s Office went to Denny’s home to arrest him pursuant to a contempt of court order for failure to pay child support. Although Denny’s social security number, date of birth, and address were correct on the order, Denny pointed out to the officers that the order was technically deficient because it denominated the party sought as David William Denny, not David William Denny II and because the child’s name was incorrect. Despite Denny’s concerns about the form of the order, the officers informed him that they intended to take him into custody. As the officers attempted to handcuff him, Denny began shoving, elbowing, and kicking the officers. Denny broke free and ran into the backyard where the officers ultimately subdued him.

1. Denny argues that because he was convicted of misdemeanor obstruction of an officer rather than felony obstruction, the three counts, which arose out of the same transaction, should have merged for sentencing purposes. The crime of felony obstruction of a law enforcement officer requires “offering or doing violence to the person of” a law enforcement officer. OCGA § 16-10-24 (b). Citing Walker v. State, 206 Ga. App. 81 (424 SE2d 364) (1992), Denny acknowledges that injuring more than one officer would have justified sentencing on multiple counts of the same offense. But he maintains that misdemeanor obstruction, which is defined as “knowingly and willfully obstruct[ing] or hinder[ing] any law enforcement officer in the lawful discharge of his official duties” (OCGA § 16-10-24 (a)), should be sentenced as only one offense regardless of how many officers are involved because his arrest constituted a single transaction. Denny relies on Phillips v. State, 162 Ga. App. 199 (290 SE2d 142) (1982), in which the Court held that the theft of several items constituted a single larceny offense. However, the Court also noted in Phillips that “crimes against property differ from crimes against persons, for one who, by a single act, injures more than one person may be charged with multiple offenses.” Id. at 200 (2). Here, even though the jury did not find Denny guilty of felony obstruction which has the essential element of offering or doing violence to the officers, it did find that he wilfully obstructed or hindered three officers’ attempts to take him into custody by shoving each of the officers, pushing all three off of him, and physically resisting their efforts to handcuff him, knocking Officer Shiver’s glasses off, and shoving Officer Chastain against the wall. While some of Denny’s actions were collective, such as fleeing, and would constitute a single offense, Denny’s actions against each individual law enforcement officer constituted separate crimes and do not merge in fact or law. See OCGA §§ 16-1-6 (1) and 16-1-7; State v. Smith, 193 Ga. App. 831, 832 (1) (389 SE2d 547) (1989). Because there were three separate victims, the trial court did not err in treating the counts as discrete offenses for sentencing. See Dennis v. State, 220 Ga. App. 420 (469 SE2d 494) (1996); Duitsman v. State, 212 Ga. App. 348 (441 SE2d 888) (1994).

2. Denny’s assertion that the trial court erred in failing to give his requested charge on justification is without merit. “ ‘It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. (Cits.)’ [Cit.]” Jackson v. State, 193 Ga. App. 844, 845 (2) (389 SE2d 521) (1989). The trial court instructed the jury that a person has a right to resist an illegal or unlawful arrest with such force as is reasonably necessary to prevent the arrest. Comparing this language to the charge on justification requested by Denny, we conclude that the charge as a whole, as given, was not deficient. Likewise, the trial court’s charge on the presumption of validity of a court order was a correct statement of the law and did not impermissibly shift the burden of proof to Denny.

Judgment affirmed.

Beasley, C. J., McMurray, P. J, Birdsong, P. J., Pope, P. J., Andrews and Smith, JJ., concur. Blackburn and Ruffin, JJ., dissent.