Johnson v. State
| Decision Date | 21 November 2014 |
| Docket Number | No. A14A1302.,A14A1302. |
| Citation | 330 Ga.App. 75,766 S.E.2d 533 |
| Court | Georgia Court of Appeals |
| Parties | JOHNSON v. The STATE. |
330 Ga.App. 75
766 S.E.2d 533
JOHNSON
v.
The STATE.
No. A14A1302.
Court of Appeals of Georgia.
Nov. 21, 2014.
Karen Suzanne Wilkes, for Appellant.
Oliver Jackson Browning Jr., Dist. Atty., Melisa Agan Mason, Asst. Dist. Atty., for Appellee.
Opinion
BOGGS, Judge.
A jury convicted Gregory Bernard Johnson of misdemeanor obstruction of an officer, and he appeals. Johnson argues that the evidence was not sufficient to sustain the conviction, and that the trial court erred in denying several of his requests to charge the jury. For the reasons that follow, we affirm.
Evidentiary challenges in the appeal of criminal convictions are viewed in the light most favorable to the verdict. Chambers v. State, 252 Ga.App. 190, 190(1), 556 S.E.2d 444 (2001). On appeal the defendant no longer enjoys the presumption of innocence, and the appellate court determines not the credibility of the witnesses or the weight of the evidence, but rather its sufficiency; that is, it determines whether any rational trier of fact could find the evidence sufficient to establish the defendant's guilt beyond a reasonable doubt. Id.
So viewed, the record shows that police officers were on their way to execute a search warrant at the house of the mother of Johnson's son, where officers thought the son lived. The officers saw the son driving nearby and he agreed to accompany them to his mother's house, but he did not have his house key. The officers forced the door open and began their search. The son was in the back seat of a patrol car during the search.
The son's mother came home shortly after the police began searching, accompanied by the son's cousin, and the mother asked the officers for their search warrant. They told her she could see it when they were done and then ignored her request for them to leave if they did not have a search warrant. The cousin testified that she was protesting loudly on the front porch about the officers' breaking down
the door and conducting a warrantless search. At some point, the officers asked the mother to close the front door because the cousin was protesting so loudly but otherwise ignored the two women and continued their search. The cousin testified that when she said loudly that she was about to call the chief of police about the officers breaking into the house without a warrant, an officer left the scene about an hour into the search and returned with a copy of a search warrant.
Meanwhile, defendant Johnson came into the front yard. The cousin told Johnson that the officers only obtained a warrant after they had broken down the door and searched the premises for an hour, and Johnson responded, “[I]f that's the case, then you have your witnesse[s] together when you come [to] court, [and] the judge will dismiss it because ... it was wrong.” One of the officers had just photographed the back of the house and another picture of the front when Johnson began yelling, “This s-t's not going to fly.” The officer told him to calm down, be quiet, and let him finish documenting the scene, after which he would let Johnson talk to his son.
The officer testified that he explained to Johnson that because he did not live there, he did not have a right to be present and therefore needed to step over to another property, but Johnson refused to leave. According to the officer, Johnson's continued “hollering and cussing ... got everybody else yelling and screaming” a couple of houses down. He testified that he was concerned for his and other officers' safety and could not simply ignore Johnson, because “when I'm trying to take pictures and someone standing behind me hollering and cussing I don't know what they're fixing—and I've got a gun on my side, I've got to deal with him. I can't take a chance of them grabbing my gun and I don't know what they're going to do in that state of mind.” The officer testified that he asked Johnson “a minimum of three times” to calm down and let him do his job before arresting him for obstruction. Finally,
the officer stated that Johnson's conduct prevented him from continuing to photograph the scene and going inside to collect evidence; it also caused another officer to stop his activities inside the house and come outside to assist.
Johnson was charged by accusation with the misdemeanor offense of obstruction of an officer,
for that [he] ... did knowingly and willfully obstruct and hinder ... a law enforcement officer with the Polk County Police Department in the lawful discharge of his official duties, by screaming, cursing, and hindering said officer
from performing his search and gathering evidence while [executing] a search warrant, in violation of OCGA § 16–10–24(a).
OCGA § 16–10–24(a) provides in pertinent part: “[A] person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.”
1. Johnson contends that the evidence was insufficient to support his conviction because the State failed to prove that his “speech rose to the level of obstruction as defined by law.” The evidence established that he never physically obstructed the officer, and therefore, he argues, the issue is whether his words themselves could reasonably be considered obstruction. We disagree.
(a) Citing Woodward v. Gray, 241 Ga.App. 847, 849(a), 527 S.E.2d 595 (2000), and Ballew v. State, 245 Ga.App. 842, 843(1), 538 S.E.2d 902 (2000), Johnson asserts that speech alone cannot constitute obstruction unless its content could reasonably be interpreted to constitute a threat of violence to the officer, because “a mere verbal exchange with an officer” unaccompanied by threats of violence is not obstruction.
But Ballew, Woodward, and numerous other cases holding that the State must present evidence of a threat of violence to sustain a conviction for obstruction of an officer relied on definitions of obstruction that arose out of “an older version of OCGA § 16–10–24, under which force or violence was considered an essential element of the misdemeanor offense of obstruction. [Cits.]” Stryker v. State, 297 Ga.App. 493, 494, 677 S.E.2d 680 (2009). The statute was revised in 1986 to define and separate felony obstruction, which requires threats of violence or forcible resistance, from misdemeanor obstruction, which does not. Under the current version of OCGA § 16–10–24(a), a person commits the offense of misdemeanor obstruction when he “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties.” This court explicitly disapproved of both Woodward and Ballew to the extent that they implied that misdemeanor obstruction requires proof of “forcible resistance” or “threat of violence.” Stryker, 297 Ga.App. at 495, n. 1, 677 S.E.2d 680. See also Duke v. State, 205 Ga.App. 689, 689–690, 423 S.E.2d 427 (1992) ; Arsenault v. State, 257 Ga.App. 456, 457(1)(a), 571 S.E.2d 456 (2002) ; Wilcox v. State, 300 Ga.App. 35, 37–38(2), 684 S.E.2d 108 (2009).1
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