Ojemuyiwa v. State, A07A0347.

• Decision Date: 31 May 2007
• Docket Number: No. A07A0347.,A07A0347.
• Citation: 647 S.E.2d 598,285 Ga. App. 617
• Parties: OJEMUYIWA v. The STATE.
• Court: Georgia Court of Appeals

285 Ga. App. 617

647 S.E.2d 598

OJEMUYIWA v. The STATE.

No. A07A0347.

Court of Appeals of Georgia.

May 31, 2007.

John R. Greco, for appellant.

Patrick H. Head, District Attorney, Erman J. Tanjuatco, Amelia G. Pray, Assistant District Attorneys, for appellee.

MIKELL, Judge.

After a jury trial, Olumayowa Ojemuyiwa was convicted of felony obstruction of an officer, misdemeanor obstruction of an officer, and driving under the influence of alcohol to the extent that she was less safe. On appeal, Ojemuyiwa challenges the sufficiency of the evidence and the effectiveness of her trial counsel. She also maintains that the trial court erred by prohibiting her testimony as to her state of mind, by denying her motion for directed verdict on the DUI charge, and by failing to grant a new trial to allow the testimony of a newly discovered witness. We reverse the conviction on the DUI charge and affirm the remaining convictions.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict.¹ We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia.² "The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."³ Viewed in the light most favorable to the verdict, the evidence shows that in the early morning hours on July 10, 2005, Ojemuyiwa received a call from a corrections facility in Cobb County and was told that her sister had been taken to jail for driving under the influence and that someone needed to pick up her sister's car so that it would not be towed. Officer Matt Owen of the Cobb County Police Department testified that he assisted in the sister's DUI stop and that when he arrived at the scene, he parked his patrol car directly behind Ojemuyiwa's sister's car in the center turn lane on the street. Ojemuyiwa's sister already had been placed in custody.

Owen testified that when Ojemuyiwa arrived, she walked across the street and began to question him about her sister as soon as he stepped out of his vehicle; that when Ojemuyiwa was within three feet of him, he smelled a strong odor of alcohol emanating from her breath; and that he asked Ojemuyiwa if she had driven to the scene and if she had been drinking, and she gave a positive response to both questions. Owen recalled that while they talked, Ojemuyiwa was standing one foot inside of a lane of traffic and that when the light turned green at the nearby traffic signal and cars proceeded toward them, he asked Ojemuyiwa to step out of the roadway. Ojemuyiwa ignored him so he asked her to move again, and when she did not comply, he placed his hand on her back and guided her out of the roadway, at which point she said, "Don't touch me." Owen testified that Ojemuyiwa then exhibited increasingly disorderly conduct by raising her voice and flailing her arms. Owen walked back to his vehicle to get his alcosensor, and as he approached Ojemuyiwa with it, she backed away from him into a lane of traffic. Again, Owen asked her to move and when she did not respond, he held her arm above the elbow to pull her out of the lane of travel.

Owen asked Ojemuyiwa to step into a nearby parking lot and as they walked, she was yelling racist remarks at him and accusing him of trying to arrest her for DUI. Ojemuyiwa continued to yell at Owen, becoming increasingly hostile, then announced that she was leaving, at which point Owen told her that she could not leave because she was under investigation. After Ojemuyiwa ignored his commands to stop, Owen physically attempted to stop her from walking away, and she swung at him with her keys sticking out of her fists and scratched him in the eyebrow. Owen then grabbed Ojemuyiwa, who attempted to kick him in the groin, contacting his hip and upper thigh, forced her against a car to keep her at arm's length, and called dispatch to report that he was engaged in a physical confrontation. After he made the call, Ojemuyiwa's brother arrived. Owen instructed him to stay back, while holding Ojemuyiwa over the hood of a car with one hand and placing the other on his gun. Ojemuyiwa turned and kicked Owen in the stomach. According to Owen, Ojemuyiwa's brother repeatedly told her to stop resisting and when she did not, he told Owen to arrest her.

Sergeant Donald Zell arrived and helped Owen place Ojemuyiwa in handcuffs. Ojemuyiwa continued to resist arrest and called Owen names while he took her to his patrol car. As he tried to put her in the car, Ojemuyiwa continued to try to head butt and kick Owen, forcing him to restrain her on the hood of another vehicle to calm her down. Owen maintained that he did not ever strike Ojemuyiwa and that when she was asked at the jail if she were injured, she said that she was not.

Zell testified that when he arrived, Owen had Ojemuyiwa pinned against a car, and she was flailing around and ignoring his commands; that he had to force Ojemuyiwa's hands behind her back so that she could be handcuffed; that he smelled a strong odor of alcohol on her; that she was verbally assaultive that neither he nor Owen hit Ojemuyiwa; that she lay down in the back of the control car and kicked the window with her feet; that Ojemuyiwa's brother tried to get her to calm down; and that Ojemuyiwa did not have any injuries when she was placed into the patrol car.

Ojemuyiwa testified that she had not been drinking that night and denied telling Owen that she had been; that Owen startled her by grabbing her as she walked away to get her identification from her car so she asked him not to grab her; that Owen did not approach her with the alco-sensor and ask her to blow into it; that she did not strike Owen; that he caused the cut on his eyebrow when he grabbed her arm; that she never made racist comments or threatening motions toward the officers; and that she was scared so she cried and screamed as the officers attacked her. Ojemuyiwa further testified that she bonded out of jail after eight hours and went to her mother's house before going to the hospital; that she sustained bruises on her arms and thigh and a swollen nose; and that she reported her injuries while she was being processed at the jail.

On cross-examination, Ojemuyiwa testified that she had documentation of her injuries but had not brought the documents to trial and that her mother took pictures of her injuries and her friends took pictures of the dents in her car, caused by the officers slamming her onto the hood. Ojemuyiwa's mother testified that she photographed Ojemuyiwa's injuries, which were not present before this incident, and that there were four dents in the hood of Ojemuyiwa's car after the incident that were not there the day before.

Ojemuyiwa's brother testified that when he arrived at the scene, Ojemuyiwa was slumped over a car and appeared upset; that he left the scene to pick up his mother, who lived half a block away; that he thought his sister was okay when he left the scene; that she was not in a position to kick anyone; and that when he saw Ojemuyiwa the next day, she looked swollen. He denied that he ever told his sister to stop resisting arrest.

1. Ojemuyiwa argues that the trial court erred when it refused to allow her to testify as to her state of mind during the time she was accused of struggling with the officers. Specifically, Ojemuyiwa sought to testify about a prior act of sexual violence committed against her to explain why she resisted Owen when he initially made contact with her in the street. Ojemuyiwa maintains that this testimony should have been admitted so that the jury could evaluate her state of mind to determine whether she acted with criminal intent and because it proved her sole defense of justification. We find no error.

At the outset we note that the accusation filed against Ojemuyiwa alleged that she obstructed the officer "by offering and doing violence to said officer by striking and kicking said officer." The testimony that Ojemuyiwa sought to introduce did not support the affirmative defense of justification. "[W]ith a legal affirmative defense, the accused admits the elements of the crime, but seeks to justify, excuse, or mitigate by showing no criminal intent; all elements of the parts of the crime are admitted with the exception of the intent."⁴ In other words, as a general rule, in order to assert the defense of justification, the defendant must admit the crime.⁵ Ojemuyiwa testified that she did not strike or kick Owen or otherwise resist arrest, but was attacked by the officers. Because Ojemuyiwa did not admit to the crimes charged, the defense of justification was inapplicable.

2. Ojemuyiwa next argues that the trial court should have directed a verdict of acquittal on the driving under the influence charge. We agree.

The probable cause needed to conduct an arrest for DUI requires that the officer have knowledge or reasonably trustworthy information that a suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely. Mere presence of alcohol is not the issue. In a less safe case, the state must prove that the defendant had impaired driving ability as a result of drinking alcohol.⁶

In this case, Owen testified that he smelled a strong odor of alcohol emanating from Ojemuyiwa's breath, and Zell testified that he observed a strong odor of alcohol about her person. No sobriety tests were conducted. "[I]t has been repeatedly held by this Court that the presence or odor of alcohol on a driver's breath does not, by itself, support an inference that the driver was impaired."⁷ There was no evidence offered to prove that Ojemuyiwa's driving ability was impaired due to alcohol consumption. In fact, there was no evidence presented whatsoever as to Ojemuyiwa's manner of driving, that her speech was slurred,...