Dennis v. State

469 S.E.2d 494 (1996) 220 Ga. App. 420

DENNIS
v.
The STATE.

No. A96A0078.

Court of Appeals of Georgia.

March 1, 1996.

James P. Brown, Jr., McDonough, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

HAROLD R. BANKE, Senior Appellate Judge.

Aaron Dennis was convicted of two counts of misdemeanor obstruction of an officer, two counts of felony obstruction of an officer, interference with government property, and simple battery. He enumerates four errors.

The State's evidence revealed that these charges arose after Dennis's wife informed police that Dennis had physically abused her. She reported the incident in person because as she was telephoning, Dennis jerked the cord from the wall. Two police officers followed her home to investigate and attempted to talk with Dennis, who is hearing impaired. After Dennis cursed them, ordered them to leave, and pulled out a machete, the officers called for assistance. During the subsequent attempt to arrest Dennis, he kicked, butted, and hit them. As the officers transported Dennis to the police station, he broke a window on the patrol car and escaped. During the ensuing pursuit, he hit an officer in the nose and threatened the others. Held:

1. The trial court properly denied Dennis's motion for directed verdict because the evidence was sufficient to show that one of the arresting officers, who had just completed his basic training course at the police academy and was a sworn reserve officer with arrest powers, was a "law enforcement officer" within the meaning of OCGA § 16-10-24. Proof that the law enforcement officer was certified is not an essential element of OCGA § 16-10-24.

2. The evidence that the officers were in lawful discharge of their duties, when viewed in the light most favorable to the verdict, was sufficient. Jackson v. Virginia, 443 U.S. 307, 319-320, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Warrantless arrests are lawful "if the officer has probable cause to believe that an act of family violence, as defined in Code Section 19-13-1, has been committed." OCGA § 17-4-20(a). The OCGA § 19-13-1 definition of family violence includes simple battery, and the record shows that before the officers confronted Dennis, they had probable cause to believe he had committed battery on his wife. See OCGA § 16-5-23(a). Because the officers were acting in the lawful discharge of their duties during this incident, Dennis's resistance constituted obstruction. Wagner v. State, 206 Ga.App. 180, 182, 424 S.E.2d 861 (1992); compare Brooks v. State, 206 Ga.App. 485, 488-489, 425 S.E.2d 911 (1992). The State's evidence refutes Dennis's arguments that his resistance was justified to prevent further mistreatment by the officers and that his actions were unintentional. See O'Neal v. State, 211 Ga.App. 741, 743, 440 S.E.2d 513 (1994). In determining evidence sufficiency, this Court does not weigh the evidence or determine witness credibility. Pardo v. State, 215 Ga.App. 317(1), 450 S.E.2d 440 (1994).

3. We reject Dennis's argument that a modified Allen charge given at the close of the first day of jury deliberations was coercive.^[1] See Romine v. State, 256 Ga. 521, 526-527(1), 350 S.E.2d 446 (1986) (discussing the parameters of the jury charge authorized under Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896)). The charge essentially instructed the jury that failing to agree would cause a mistrial resulting in another trial by another jury. This is not unduly coercive. Hardy v. State, 242 Ga. 702, 706(4)(f), 251 S.E.2d 289 (1978); see McMillan v. State, 253 Ga. 520, 523(4), 322 S.E.2d 278 (1984).

4. The trial court's jury charge on misdemeanor obstruction did not misinform the jury. The court charged that the definition of misdemeanor obstruction was identical to felony obstruction except that "misdemeanor obstruction is not offering to do violence, but simply resisting arrest." Although the better practice would have been to fully charge on both misdemeanor and felony obstruction, the charge given, considered as a whole, communicated all the elements of misdemeanor obstruction in a manner not likely to mislead the jury. Brown v. State, 197 Ga.App. 365, 366(2), 398 S.E.2d 424 (1990); see Parks v. State, 234 Ga. 579, 582(2), 216 S.E.2d 804 (1975) (charging in the exact language of the Code is not required).

Judgment affirmed.

McMURRAY, P.J., and JOHNSON, J., concur.

NOTES

[1] The statement at issue is as follows: "If you do not arrive at a verdict in this case, that cannot be helped, but another jury might have to be impaneled to decipher and to try the same issues which you, ladies and gentlemen, are charged with resolving."