Duke v. State

• Decision Date: 02 October 1992
• Docket Number: No. A92A1418,A92A1418
• Citation: 205 Ga.App. 689,423 S.E.2d 427
• Parties: DUKE v. The STATE.
• Court: Georgia Court of Appeals

Page 427

423 S.E.2d 427

205 Ga.App. 689

DUKE v. The STATE.

No. A92A1418.

Court of Appeals of Georgia.

Oct. 2, 1992.

Garland B. Cook, Jr., for appellant.

Stephen F. Lanier, Dist. Atty., Tambra P. Colston, Asst. Dist. Atty., for appellee.

CARLEY, Presiding Judge.

After a bench trial, appellant was found guilty of misdemeanor obstruction of an officer in violation of OCGA § 16-10-24(a). She appeals from the judgment of conviction and sentence entered by the trial court on its finding of her guilt, and enumerates only the general grounds.

The evidence in the instant case, when construed most favorably for the State, would authorize a finding that, when officers went to appellant's home with a warrant for the arrest of another individual, she knowingly lied and informed them that the arrestee was not there. Citing Samples v. State, 151 Ga.App. 179, 259 S.E.2d 178 (1979), appellant urges that this evidence is not sufficient to authorize her conviction, because she merely lied to the officers and did not employ words which could be construed as "forcible resistance or opposition to the officer[s] in the performance of [their] duties." (Emphasis supplied.)

Samples was decided under former OCGA § 16-10-24. In 1986, however, former OCGA § 16-10-24 was stricken and replaced by existing OCGA § 16-10-24. Ga.L.1986, p. 484. Existing OCGA § 16-10-24(b) now provides that the act of "offering or doing violence to the person" of an officer who is in the performance of his official duties is guilty of a felony. There is certainly no evidence that appellant offered to do any violence to the officers by threatening them with physical force. However, appellant was not convicted of felony obstruction in violation of existing OCGA § 16-10-24(b). She was convicted of misdemeanor obstruction in violation of existing OCGA § 16-10-24(a). That statute provides that a "person who knowingly and wilfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties [other than by offering or doing violence to his person] is guilty of a misdemeanor." Accordingly, Samples is inapplicable because "the offense of misdemeanor obstruction [under existing OCGA § 16-10-24(a) no longer] contain[s] the element of 'violence' (as does the offense of felony obstruction [under existing OCGA § 16-10-24(b) ] )...." Williams v. State, 196 Ga.App. 154, 156(1), 395 S.E.2d 399 (1990).

Despite the fact that former OCGA § 16-10-24 was replaced in 1986 and it is now necessary to show that violence was offered or done only in the case of felony obstruction, Samples has continued to be cited as authority for the proposition that a conviction for misdemeanor obstruction under existing OCGA § 16-10-24(a ) requires evidence of forcible resistance or opposition. See Hendrix v. State, 202 Ga.App. 54(1), 413 S.E.2d 232 (1991); Cason v. State, 197 Ga.App. 308, 398 S.E.2d 292 (1990); Patterson v. State, 191 Ga.App. 359(1), 381 S.E.2d 754 (1989). To the extent that these or any other cases stand for the proposition that a conviction for misdemeanor obstruction under existing OCGA § 16-10-24(a ) requires evidence that violence was offered or done, they are erroneous and hereby overruled. A conviction for felony obstruction under existing OCGA § 16-10-24(b ) requires proof that the accused offered or did violence to the person of an officer, but a conviction for misdemeanor obstruction under existing OCGA § 16-10-24(a) does not. Williams v. State, supra 196 Ga.App. at 156(1), 395 S.E.2d 399.

In Hudson v. State, 135 Ga.App. 739, 743(3), 218 S.E.2d 905 (1975) it was held that the act of wilfully lying to an officer, who is attempting to execute an arrest warrant, as to the present location of the arrestee "could hinder an officer while he was attempting to carry out his duties of serving a warrant." Hudson was decided under former OCGA § 16-10-24 and appellant urges that its holding is erroneous because it ignores the element of force which was required to secure a conviction under that former statute. However, even assuming that Hudson was erroneously decided under former OCGA § 16-10-24, it is nevertheless clear that force or violence is not an element of misdemeanor obstruction under existing OCGA § 16-10-24(a) and that verbal exchanges without threats of force and violence can authorize a conviction under that statute. See Herren v. State, 201 Ga.App. 509, 510(1), 411 S.E.2d 552 (1991); Bailey v. State, 190 Ga.App. 683, 379 S.E.2d 816 (1989). Wilfully lying to an officer, who is attempting to execute an arrest warrant, as to the present location of the arrestee does not constitute a mere verbal exchange. As verbal threats of force and violence can hinder an officer and authorize a felony conviction under existing OCGA § 16-10-24(b), lying with the intent of misdirecting him as to the performance of his official duties can certainly constitute a hinderance and authorize a misdemeanor conviction under existing OCGA § 16-10-24(a).

Whether or not appellant's lie had the effect of hindering or obstructing the officers in making the arrest was for the trior of fact to decide. Sapp v. State, 179 Ga.App. 614, 615(1), 347 S.E.2d 354 (1986). "The trial court was...