Woolfolk v. State

• Citation: 202 Ga.App. 59,413 S.E.2d 242
• Decision Date: 25 November 1991
• Docket Number: No. A91A0892,A91A0892
• Parties: WOOLFOLK v. The STATE.
• Court: Georgia Court of Appeals

Page 242

413 S.E.2d 242

202 Ga.App. 59

WOOLFOLK v. The STATE.

No. A91A0892.

Court of Appeals of Georgia.

Nov. 25, 1991.

Robert M. Bearden, Jr., Macon, for appellant.

Willis B. Sparks III, Dist. Atty., Thomas J. Matthews, Asst. Dist. Atty., for appellee.

POPE, Judge.

Defendant Dennis Woolfolk appeals from his conviction for two counts of entering an automobile, burglary, misdemeanor theft by taking and obstruction of an officer. We affirm.

1(a) Defendant first contends the trial court erred in not giving his written request to charge on mistake of fact based on his testimony that he did not know the items he pawned were stolen, and his testimony that he did not know the arresting officers were police officers. See OCGA § 16-3-5. However, this argument presents no defense to the crimes charged in this case. Defendant was not charged with or convicted of receiving or disposing of stolen property. See OCGA § 16-8-7. Rather, the charges against him related to the actual theft of the goods. Defendant does not contend, nor does the evidence at trial suggest, that defendant somehow mistakenly believed that he had a right to enter automobiles and homes and take items not belonging to him. Rather, defendant denied the charges against him and contended he was at home at the time the crimes were committed. " '(W)hile a trial court is required to charge on a criminal defendant's sole defense of mistake of fact even absent a request to do so (cits.), such a charge is not required where, as here, it is not authorized by the evidence.' [Cit.]" Pratt v. State, 167 Ga.App. 819, 821(3), 307 S.E.2d 714 (1983). See also Diggs v. State, 170 Ga.App. 48(1), 316 S.E.2d 171 (1984).

(b) Defendant likewise was not entitled to a charge concerning mistake of fact on the obstruction offense. Contrary to defendant's statement in his brief on appeal, he did not testify at trial that he did not know that the arresting officers were police officers. Rather, defendant clearly indicated at trial that he knew the arresting officers were police officers, but stated he did not believe they had a warrant for his arrest. "It is clear from [defendant's] argument that his concern was whether the officers had the lawful authority to arrest him. This was not a misapprehension of fact as contemplated by OCGA § 16-3-5 but was instead a misapprehension of law. Brown v. State, 163 Ga.App. 209(3), (294 SE2d 305) (1982). '(It) is axiomatic that "(i)gnorance of the law excuses no one." (Cit.)' Jenga v. State, 166 Ga.App. 36(2) (303 SE2d 170) (1983)." Singleton v. State, 194 Ga.App. 423(2), 390 S.E.2d 648 (1990). In sum, defendant's first enumeration of error is without merit.

2. Defendant next contends the trial court erred in refusing to give his charge on honest claim of right. Again we find no merit to this enumeration. As was the case in Division 1, defendant's argument posited in support of this enumeration pertains to the offense of theft by receiving, not the crimes with which he was charged or convicted. Defendant presented no evidence at trial that he had a right to enter other people's homes and automobiles and take items not belonging to him. Rather, defendant denied committing these offenses. Consequently, the trial court did not err in refusing to give the requested charge. Cf. Williams v. State, 187 Ga.App. 859, 860(2), 371 S.E.2d 673 (1988).

3(a) Defendant also argues the trial court erred in refusing to give his charge to the effect that, as to the obstruction offense, the State must prove defendant acted with knowledge that the arresting officers were police officers. First we note that we need not consider defendant's argument and cases cited in support thereof that the trial court committed reversible error by not charging that knowledge is an essential element in convicting a defendant for aggravated assault on a police officer because he was not charged with or convicted of that crime. In this case the trial court sufficiently charged the jury with regards to the elements necessary to prove the obstruction offense. Moreover, inasmuch as defendant testified he knew the arresting officers were police officers, we fail to see how he was harmed by the trial court's failure to give the requested charge.

(b) Defendant also contends the trial court erred in refusing to give his requested charges on self-defense and the right to resist unlawful force used in effectuating a lawful arrest. As to this issue, the record shows defendant denied using physical force in resisting the officers' attempts to arrest him, and testified instead that he fell while the officers were trying to arrest him. Defendant further testified that although the officer may have thought he was trying to fight, that was not his intention, as the fall simply resulted from a lack of physical coordination on his part. Under these facts the evidence did not support the requested charges, and it was not error to refuse to give them. See Love v. State, 194 Ga.App. 601(1 & 2), 391 S.E.2d 447 (1990).

4. Defendant next contends the trial court erred in admitting evidence of two prior convictions for entering an automobile and in failing to give his request to charge on the use of such prior conviction evidence in evaluating the charges against him at trial. Contrary to defendant's assertions on appeal, we find the trial court properly admitted evidence of defendant's prior convictions. Stephens v. State, 261 Ga. 467(6), 405 S.E.2d 483 (1991). " '(T)here is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.' [Cit.] We find that the trial court properly admitted into evidence the similar [transactions]." Singleton, supra, 194 Ga.App. at 424(5), 390 S.E.2d 648. See also Rutherford v. State, 198 Ga.App. 283, 401 S.E.2d 308 (1991).

The remainder of this enumeration, in which defendant contends the trial court erred by failing to give his request to charge on the use of prior offense evidence in evaluating the charges against him at trial, is not supported by citation of authority or argument. Accordingly, it is deemed abandoned pursuant to Rule 15(c)(2) of this court. Fowler v. State, 188 Ga.App. 873, 874(3), 374 S.E.2d 805 (1988). Moreover, the record shows that defendant indicated...