Phillips v. State

• Decision Date: 09 June 2004
• Docket Number: No. A04A0839.,A04A0839.
• Citation: 601 S.E.2d 147,267 Ga. App. 733
• Parties: PHILLIPS v. The STATE.
• Court: Georgia Court of Appeals

601 S.E.2d 147

267 Ga. App. 733

PHILLIPS v. The STATE.

No. A04A0839.

Court of Appeals of Georgia.

June 9, 2004.

Antonia Phillips, pro se.

Stephen Askew, District Attorney, Mary K. Mitchell, Assistant District Attorney, Swainsboro, for appellee.

ELDRIDGE, Judge.

Antonia Phillips, Sr. was convicted by a jury of the offense of obstruction of an officer (OCGA § 16-10-24(b)). Phillips, pro se, appeals from the denial of his motion for new trial. Before this Court, Phillips fails to set out his enumerations of errors as part two of his brief as required by Court of Appeals Rule 22(a). Neither are Phillips' enumerations of errors clearly set out within the brief he filed. However, even though Phillips fails to enumerate clearly the errors he seeks to have reviewed, we are mindful of the duties of this Court as set out in Felix v. State,¹ "to consider the appeal where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing what errors are sought to be asserted upon appeal. OCGA § 5-6-48(f)." (Punctuation omitted.) Felix v. State, supra at 538, 523 S.E.2d 1. Having done so, we find no error and affirm.

Viewed in the light most favorable to the verdict,² the evidence shows that on December 29, 2001, Swainsboro police were called to the Star Blazer Nightclub because a fight had broken out between two patrons. Emanuel County sheriff's deputies were called to assist in crowd control. While at the club, Deputy Josh Stephens noticed Phillips exit the nightclub. Deputy Stephens was aware that there were outstanding warrants for Phillips' arrest. Deputy Stephens alerted fellow officers of this fact, gave them a description of Phillips, and stated that Phillips was walking away from the nightclub toward Deputy Stephens. Deputies Marty Mercer and Rocky Davis backed their vehicle towards Phillips. Upon observing their actions, Phillips turned around and started walking in the opposite direction. Deputy Davis pulled his vehicle beside Phillips and asked Phillips to come over to his car. Phillips began to walk away slowly. Deputy Davis exited his vehicle and ordered Phillips to stop. Phillips ran, and a chase ensued.

Officer Dennis Mason of the Swainsboro Police Department testified that, when Phillips ran from Deputies Mercer and Davis, he ran toward the area where he and Corporal Bryan Moore, also with the Swainsboro Police Department, were located. Officer Mason attempted to apprehend Phillips, but Phillips was able to avoid him. When Phillips reached Corporal Moore, Corporal Moore attempted to stop him by grabbing him around the waist. Phillips, still running, balled his fist and struck Corporal Moore in the mouth and nose with enough force to cause his nose to bleed and cause him to fall down. Police officers continued chasing Phillips 20 or 30 more feet. At this point, Deputy Stephens grabbed Phillips around the waist and forced him to the ground. Deputy Davis grabbed Phillips' legs. Phillips continued to fight the officers, trying to free himself. Phillips hit Deputy Stephens in the throat. It took the assistance of Deputy Mercer and Officer Mason to handcuff Phillips. After being handcuffed, Phillips continued to resist officers, struggling against their efforts to get him off the ground and into the police car; once in the police car, he kicked the door of the vehicle. Held:

1. There is no merit to Phillips' contention that the determination of guilt was contrary to the evidence and without evidence to support it.

A person commits the offense of felony obstruction of a law enforcement officer when he "knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer...." OCGA § 16-10-24(b); Jackson v. State, 213 Ga.App. 520 at 520-521, 444 S.E.2d 875 (1994).

Jones v. State, 242 Ga.App. 357, 358(1), 529 S.E.2d 644 (2000).

"On appeal of a criminal conviction, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citations and punctuation omitted.) Tolliver v. State, 243 Ga.App. 180, 181(1), 531 S.E.2d 383 (2000); Jackson v. Virginia, supra. The indictment charged Phillips with obstruction of an officer (OCGA § 16-10-24(b)) in that he

unlawfully, knowingly, and willfully obstructed Cpl. Bryan Moore with the Swainsboro Police Department, a law enforcement officer in the lawful discharge of his official duties, by offering or doing violence to such officer by punching him in the mouth and nose.

Phillips argues that the evidence was insufficient because the testimony of the police officers was inconsistent. However, this argument goes to witness credibility and asks this Court to do what we are not authorized to do, which is to weigh evidence and determine witness credibility. See Payne v. State, 248 Ga.App. 158, 159(1), 545 S.E.2d 336 (2001) (This Court " does not weigh the evidence or determine witness credibility. [Cit.] Conflicts in the evidence are for the jury to resolve. [Cit.]").

Phillips further argues that the evidence was insufficient because the officers were not in lawful discharge of their duties at the time of the alleged obstruction in that they lacked probable cause to arrest him because the simple battery re-arrest warrant was invalid. Phillips presented no evidence at trial to support this allegation. Further, the evidence at trial showed that, in addition to the re-arrest warrant, Deputy Stephens was aware that an additional warrant had been issued on December 21, 2001, for probation violation based on Phillips' failure to report. This testimony was corroborated by Probation Officer Marcus Price's testimony that Phillips failed to report to probation during the month of December 2001, and that he provided this same information to a magistrate judge to procure a warrant. The probation revocation warrant was submitted into evidence by the State. Given the existence of the outstanding valid probation warrant, the police officers had probable cause to arrest Phillips and were in lawful discharge of their official duties at the time of the obstruction, regardless of the validity of the re-arrest warrant.

Next, Phillips claims that the evidence was insufficient because the State failed to prove all of the elements of felony obstruction because Corporal Moore did not receive an injury that was documented by hospital personnel. However, actual injury to the officer is not a required element to felony obstruction of an officer. Fricks v. State, 210 Ga.App. 562, 563(1), 436 S.E.2d 752 (1993).

Lastly, Phillips asserts that the evidence was insufficient because there was a failure on the part of the State to prove that he knew the individual that he was accused of striking was a police officer. However, at trial Phillips admitted that he saw the police officers and that he ran when he realized the police officers had recognized him because he knew there were outstanding warrants for his arrest.

Viewed in the light most favorable to the jury's verdict, the evidence in this case was sufficient to enable a rational trier of fact to find Phillips guilty beyond a reasonable doubt of the offense of obstruction (OCGA § 16-10-24(b)) of Corporal Moore in the lawful discharge of his duties.

2. For the first time on appeal, Phillips contends that the trial judge should have recused himself from the trial of this matter because he had previously heard the evidence during an earlier probation revocation hearing.

Motions for recusal are governed by Uniform Superior Court Rule ("USCR") 25. Under USCR 25.1, all motions to recuse or disqualify a jury shall be timely filed in writing and all evidence shall be presented by accompanying affidavits which shall fully set out the facts upon which the motion is founded. Phillips did not make a written motion, and thus, his motion to recuse on such ground was waived by his failure to do so. See Pope v. State, 257 Ga. 32, 34-35(2), 354 S.E.2d 429 (1987); BITT Intl. Co. v. Fletcher, 259 Ga.App. 406, 409(5), 577 S.E.2d 276 (2003); Dodson v. Dean, 256 Ga.App. 4, 567 S.E.2d 348 (2002); Barlow v. State, 237 Ga.App. 152, 156(3), 513 S.E.2d 273 (1999).

To the extent Phillips asserts that the trial judge should have recused himself sua sponte, there is no duty for a trial judge to sua sponte recuse himself absent a violation of a specific standard of OCGA § 15-1-8 or Canon 3(E)(1)(a) through (c) of the Code of Judicial Conduct, which is not waived by a party after disclosure. BITT Intl. Co. v. Fletcher, supra; Dodson v. Dean, supra; Pope v. State, supra. Of the circumstances set out in these prohibitions, the only one that conceivably applies here is where "the judge has a personal bias or prejudice concerning a party or a party's lawyer." Georgia Code of Judicial Conduct Canon 3(E)(1)(a). To merit recusal, "any alleged bias must be of such a nature and intensity to prevent the defendant from obtaining a trial uninfluenced by the court's prejudgment." (Citation and punctuation omitted.) Vaughn v. State, 247 Ga.App. 368, 370(2), 543 S.E.2d 429 (2000). Phillips has not pointed to any evidence the trial judge had any such bias or prejudice against him, and from our examination of the record, we find none. This enumeration...