Glenn v. State
| Decision Date | 26 April 2019 |
| Docket Number | A19A0334 |
| Citation | 827 S.E.2d 698,350 Ga.App. 12 |
| Court | Georgia Court of Appeals |
| Parties | GLENN v. The STATE. |
Benjamin Alston Pearlman, for Appellant.
Kenneth W. Mauldin, Dist. Atty., Anna Guardino, Brian Vance Patterson, for Appellee.
James C. Bonner, Jr., Andrew S. Fleischman, J. Scott Key, amici curiae.
Christopher Glenn appeals from the trial court's order finding that he violated the terms of his probationary sentence. In his sole enumeration of error, Glenn argues the trial court erred in revoking his probation by finding he committed the new felony offense of interference with government property. For the reasons stated below, we affirm.
(Citations and punctuation omitted.) Brown v. State , 294 Ga. App. 1, 3 (2), 668 S.E.2d 490 (2008).
The record shows that in June 2017, Glenn was convicted of felony obstruction of an officer and battery and was sentenced to 24 months’ probation. As a general condition of probation, he was not to violate any criminal laws. In May 2018, a probation warrant was issued against Glenn, alleging he violated his probation by committing the new offenses of loitering/prowling, obstruction of a law enforcement officer, and interference with government property. That same month, the State filed a petition for modification/revocation of probation, contending Glenn violated his probation by committing these new offenses.
At the probation revocation hearing, an officer of the Athens-Clarke County Police Department testified that, in May 2018, he was dispatched to investigate a suspicious person. He encountered Glenn walking near the back of Oglethorpe Elementary School around the time students were being released from school. The officer had encountered Glenn on a previous occasion. Based on his previous experience with Glenn, the officer called for and awaited backup. Before backup arrived, the officer ordered Glenn to stop, and Glenn eventually complied with the command. Glenn was handcuffed, detained, and placed under arrest for loitering and prowling.
The officer testified his encounter with Glenn was recorded via body camera, and the video was introduced into evidence at the hearing. The officer eventually left the scene to conduct further investigation at the school, but he later returned. Although the videotape does not show when Glenn damaged the police vehicle door, it does show an approximately four-minute interval between the responding officer initially placing Glenn in handcuffs and eventually putting him in the patrol car, and an approximately fifteen-minute interval after Glenn is placed in the police vehicle and when the responding officer leaves the scene. The video further shows an approximately 28-minute interval between when the responding officer left and when he eventually returns to the scene, and the damage occurred in this time frame.
Another officer of the Athens-Clarke County Police Department testified he responded to the location and Glenn was placed in the back seat of a patrol car while the officers waited for the first responding officer to complete his investigation. The second officer testified Glenn complained of being dehydrated, and EMS was called to the scene to check on him. The officer testified Glenn sat in the ambulance for several minutes, but when he was asked to exit the ambulance, he resisted by grabbing onto the seat belt and not letting go. Glenn continued to resist. The officer warned Glenn that if he continued to resist he would use his Taser. The officer explained that once Glenn was placed back in the patrol car, he kicked off the door panel of the driver's side door. The officer stated his rear passenger door was off its hinges and would not close properly. After Glenn was placed in a second patrol car, he began kicking the window of that car as well.
After hearing the evidence, the trial court found the officer lacked sufficient probable cause to arrest Glenn for loitering and prowling. Thus, the officer was not acting in the lawful discharge of his duties when he arrested Glenn. The trial court also found, however, that Glenn violated his probation as to the charge of interference with government property. Based on this new felony offense, the trial court revoked 90 days of Glenn's probation, but suspended the sentence on the condition that Glenn enter and undergo treatment with an accountability court. Thereafter, Glenn petitioned this Court for discretionary review, which we granted. This appeal followed.
Glenn argues the trial court erred by finding he committed the new offense of interference with government property because he was resisting an unlawful arrest and was justified in using force and damaging property as part of his resistance. We disagree.
"A court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged." OCGA § 42-8-34.1 (b). However, (Citation and punctuation omitted.) Summerford v. State , 316 Ga. App. 201, 202, 728 S.E.2d 829 (2012). As we have explained, (Citation omitted.) Christy v. State , 134 Ga. App. 504, 506 (1), 215 S.E.2d 267 (1975). With this framework in mind, we turn to Glenn's argument.
"A person commits the offense of interference with government property when he destroys, damages, or defaces government property[.]" OCGA § 16-7-24 (a). Here, several officers testified that Glenn was placed under arrest, physically resisted the officer's attempts to arrest him, and after more than fifteen minutes passed, he damaged the police car door.
Glenn contends that the trial court erred because he was justified in using force against the police vehicle in the course of resisting an unlawful arrest. Glenn further argues it is inconsistent to allow a person who is unlawfully arrested to use force against a police officer to resist that unlawful arrest, but not to allow a person who is illegally arrested to use force against property.
"When a defendant claims justification, he admits that he intended to engage in the conduct which constitutes the crime but argues that under the circumstances he was justified in so acting and that he therefore lacked the requisite criminal intent." Jackson v. State , 329 Ga. App. 240, 241-242, 764 S.E.2d 569 (2014). as is relevant here, "[w]hen the person's conduct is justified for any reason under the laws of this state ... or [i]n all other instances which stand upon the same footing of reason and justice as those enumerated in this article." (Punctuation omitted.) OCGA § 16-3-20 (5), (6). Furthermore, it is a well-founded principle of law that a person has the right to resist an unlawful arrest "with all force that [is] reasonably necessary to do so." Ewumi v. State , 315 Ga. App. 656, 663-664 (1) (b), 727 S.E.2d 257 (2012).
Glenn points out that there is a dearth of case law on the issue of whether an illegally arrested individual is lawfully permitted to use force against property to counter the illegal arrest. Instead, he directs the Court to the case of Hack v. State , 168 Ga. App. 927, 930 (6), 311 S.E.2d 211 (1983), as informative. In Hack , the defendant argued that he was illegally arrested, that he had the right to resist, and that his resistance to an unlawful arrest and attempt to escape the police vehicle by kicking the door was self-defense under OCGA § 16-3-21 (a).1 Id. This Court held that the defendant was not entitled to a self-defense charge because he was not using force against another person and his resistance did not occur until some time after his alleged unlawful arrest. Id. Moreover, Hack leads to the conclusion that the defendant was not resisting an unlawful arrest. Id.
Here, Glenn argues that Hack does not apply because he was continually resisting the officer's attempts to unlawfully arrest him and that the vehicle door was damaged during the course of this resistance. As such, Glenn contends he was justified pursuant to OCGA § 16-3-20 (6) to use force against the police vehicle to further resist an unlawful arrest just as he was authorized to use force against the police officer to resist the unlawful arrest. But we are unconvinced this action constitutes a continuing attempt to resist an unlawful arrest, as Glenn contends, rather than amounting to a new and independent offense for which his probation was revoked. To further his justification argument, Glenn urges this Court to note the timing of his actions in damaging the police vehicle, but it is the very chronology of his actions that is fatal to his argument.
The issue for this Court is whether the defense of justification under the catchall section of OCGA § 16-3-20 (6) is authorized by the evidence in this case. This is a question of law for which we conduct a de novo review. Brower v. State , 298 Ga. App. 699, 702 (1), 680 S.E.2d 859 (2009). Pretermitting whether a justification defense would be authorized, the evidence here does not support it.
This Court has held that, even under the more...
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Glenn v. State
...with government property by kicking and damaging the door of a police car when he was detained inside. See Glenn v. State , 350 Ga. App. 12, 827 S.E.2d 698 (2019).1 Glenn's claim that he damaged the door in the course of exercising his common-law right to resist an unlawful arrest and deten......
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Thurmond v. State
...the applicable standard for proving a probation violation is a preponderance of the evidence. To the extent that Glenn v. State , 350 Ga. App. 12, 14, 827 S.E.2d 698 (2019) (physical precedent only) and Veats v. State , 300 Ga. App. 600, 602 (1), 685 S.E.2d 416 (2009), hold otherwise, they ......