Green v. State

• Decision Date: 31 October 2016
• Docket Number: A16A1059
• Citation: 339 Ga.App. 263,793 S.E.2d 156
• Parties: GREEN v. The STATE.
• Court: Georgia Court of Appeals

339 Ga.App. 263

793 S.E.2d 156

GREEN

v.The STATE.

A16A1059

Court of Appeals of Georgia.

October 31, 2016

Alisha Marie Scott, Arjun S. Nair, for Appellant.

Jamie K. Inagawa, Joseph B. Myers Jr., Audrey D. Holliday Cruzan, for Appellee.

McFadden, Judge.

After a jury trial, Roger Lee Green, II, was convicted of battery and obstruction of a law enforcement officer. He argues on appeal that the trial court erred in admitting other acts evidence, but the trial court did not abuse his discretion in admitting the evidence. Green argues that the trial court erred in refusing to admit evidence of the victim's prior conviction, but the trial court was authorized to find that Green had not timely notified the state of his intent to introduce the evidence. Green argues that the trial court erred in denying his motion for a mistrial because the state made an improper propensity argument, but the trial court did not abuse his discretion by instead addressing the improper argument through instruction to the jury. Finally, Green argues that the trial court improperly increased his sentence, but the record does not support this claim. Accordingly, we affirm.

Viewed in the light most favorable to the judgment, the evidence showed that on the morning of December 11, 2013, Green and a neighbor got into an argument outside of Green's house. Green became enraged, approached the neighbor as the neighbor backed away, and hit the neighbor in the face, visibly injuring him and causing him to drop his phone. Green threatened to hit the neighbor again, then picked up the phone and threw it across the neighbor's yard.

The neighbor retrieved his phone and called 911. An officer was dispatched with information that the complainant (Green's neighbor) had been assaulted by the person who lived next door. That officer arrived at the scene in a marked police vehicle and wearing a uniform. As he pulled in to the driveway of Green's neighbor, he saw Green, whom he recognized from previous interactions, standing in the driveway next door.

The officer approached Green, who knew that he was dealing with a law enforcement officer. Green suspected that the officer wanted to talk with him about the altercation with his neighbor. Three times the officer told Green to come speak with him, and three times Green refused. Green then ran into his house and closed his garage door behind him.

The responding officer called for backup. Once a second officer arrived, the first officer began knocking on Green's front door and yelling for him to open the door. Instead, Green jumped out a rear window and fled. After a chase, the officers found Green hiding and arrested him.

The jury found Green guilty on two counts of battery against his neighbor and one count of misdemeanor obstruction of the officer who had commanded him to come speak with him. The jury found Green not guilty on another count of misdemeanor obstruction of the other officer.

1. Other acts evidence.

Green challenges the trial court's admission of other acts evidence regarding two earlier instances in which he obstructed a law enforcement officer. In both instances, law enforcement officers were dispatched to Green's house in response to calls from his mother complaining of his behavior. In one instance, Green refused to answer the officers' questions and walked away from the officers despite being told several times that he was not free to leave. He was arrested for obstruction of an officer. In the other instance, Green initially refused to comply with an officer's commands and made a threatening gesture and comment to the officer; then, after a physical altercation with the officer, he ran from the scene. Officers chased and apprehended him.

The trial court admitted evidence of these incidents as other acts evidence under OCGA § 24–4–404 (b) ("Rule 404 (b)") to show Green's knowledge. The trial court refused to admit the evidence for any other purpose, including intent.

Rule 404 (b) pertinently provides that "[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including ... knowledge[.]" OCGA § 24–4–404 (b). For other acts evidence to be admissible under Rule 404 (b), the state must make a showing that:

(1) evidence of extrinsic, or other, acts is relevant to an issue other than a defendant's character, see Rule 404 (b); (2) the probative value of the other acts evidence is not substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403 [OCGA § 24–4–403 ]; and (3) there is sufficient proof so that the jury could find that the defendant committed the act in question.

State v. Jones , 297 Ga. 156, 158–159 (1), 773 S.E.2d 170 (2015) (citations omitted). Accord Olds v. State , 299 Ga. 65, 69–70 (2), 786 S.E.2d 633 (2016). "A trial court's decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion." Jones , 297 Ga. at 159 (1), 773 S.E.2d 170 (citations omitted).

(a) Relevance .

As to the first requirement, Green argues that the evidence was not relevant to an issue other than his character because the ground for which it was admitted—knowledge—was not at issue in the case. We disagree. "Rule 404 (b) permits the admission in cases of all sorts of evidence of other acts relevant to any fact of consequence to the determination of the action , so long as the evidence is not offered to prove the character of the person in order to show action in conformity therewith." State v. Frost , 297 Ga. 296, 300, 773 S.E.2d 700 (2015) (footnote and punctuation omitted; emphasis supplied). The applicable standard for determining relevance is set forth in OCGA § 24–4–401. Jones , 297 Ga. at 159 (2), 773 S.E.2d 170. Under that Code section, "the term ‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." OCGA § 24–4–401. This is a liberal standard. Jones , 297 Ga. at 159 (2) n. 2, 773 S.E.2d 170.

Applying this definition of relevant evidence, "we find no abuse of discretion in the trial court's determination that evidence of [the other instances in which Green obstructed an officer] was relevant and admissible under Rule 404 (b)." Jones , 297 Ga. at 160 (2), 773 S.E.2d 170. The trial court held that the evidence was relevant to the issue of Green's knowledge. A defendant's knowledge may be at issue where, as here, "it is an element of the charged crime; that is, when knowledge itself is part of the statutory definition of the crime, and thus must be proven by the prosecution." 2 Weinstein's Federal Evidence, § 404.22 [2] 2016) (citations omitted).¹ See also United States v. Merriweather , 78 F.3d 1070, 1076 (II) (B) (6th Cir. 1996) ("the government's purpose in introducing the evidence must be to prove a fact that the defendant has placed, or conceivably will place, in issue, or a fact that the statutory elements obligate the government to prove ") (emphasis supplied). Knowledge is part of the statutory definition of misdemeanor obstruction of an officer, which offense occurs when "a person ... knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties." OCGA § 16–10–24 (a) (emphasis supplied). See Martinez v. State , 322 Ga.App. 63, 65 (2), 743 S.E.2d 621 (2013) (conviction for misdemeanor obstruction "requires proof of some form of knowing and wilful opposition to the officer") (citation and punctuation omitted); Mitchell v. State , 312 Ga.App. 293, 297 (2), 718 S.E.2d 126 (2011) ("as one of the essential elements of this misdemeanor offense, the state must show that the defendant committed the act knowingly and wilfully") (citation omitted).

Nevertheless, Green argues that his knowledge was not at issue in this particular case because he admitted at trial that he knew the person from whom he ran was a law enforcement officer. But there are other types of knowledge relevant to a misdemeanor obstruction charge. See, e.g., Connelly v. State , 298 Ga.App. 223, 225, 679 S.E.2d 790 (2009) (physical precedent) (defendant's knowledge that he did not have the right to flee the encounter); Williams v. State , 285 Ga.App. 190, 192 (1), 645 S.E.2d 676 (2007) (physical precedent) (defendant's knowledge that the officer was pursuing him); Veal v. State , 226 Ga.App. 897, 487 S.E.2d 696 (1997) (defendant's knowledge that the officer "sought him"); Cline v. State , 221 Ga.App. 175, 175–176, 471 S.E.2d 24 (1996) (defendant's knowledge that the officers had come to effectuate his arrest).

At trial, Green challenged the state's ability to show that he knowingly failed to comply with a lawful command of a law enforcement officer. In defense of the obstruction charge, Green argued that the officer was not acting in the lawful discharge of his official duties when he commanded Green to come speak with him. See generally Ewumi v. State , 315 Ga.App. 656, 658 (1), 727 S.E.2d 257 (2012) (describing circumstances in which a citizen may walk or even run from a law enforcement officer). By expressly challenging whether the officer was lawfully discharging his official duties in their encounter, Green implicitly challenged his own knowledge that the officer's commands to him were lawful. Indeed, Green's counsel argued at trial that, because the officer made no lawful commands to Green, the state could not show that Green had the knowledge required by the statute for the offense of misdemeanor obstruction. See Thomas v. State , 322 Ga.App. 734, 738 (2) (b), 746 S.E.2d 216 (2013) (holding that defendant's disobedience cannot have been knowing and wilful if officer has not made clear to defendant that he or she was compelled to obey); Gibson v. State , 265 Ga.App. 325, 328, 593 S.E.2d 861 (2004) (holdin...