Alvarez v. State

11 FCDR 3797

312 Ga.App. 552

718 S.E.2d 884

ALVAREZ

v.The STATE.

No. A11A1104.

Court of Appeals of Georgia.

Nov. 15, 2011.

Kristin Irene Jordan, for appellant.

Lee Darragh, Dist. Atty., Kathleen Johnston Devine, Asst. Dist. Atty., for appellee.

DOYLE, Judge.

Juan Alvarez, Jr., was convicted of one count of felony obstruction of an officer ¹ and two counts of the lesser included offense of misdemeanor obstruction of an officer.² Alvarez appeals, following the denial of his motion for new trial, arguing that the trial court erred by admitting hearsay evidence and denying his motion for a directed verdict on that ground. He also challenges the sufficiency of the evidence and contends that the trial court's jury charge was erroneous. We affirm, for reasons that follow.

Construed in favor of the verdict,³ the evidence shows that Sergeant Shane Presgraves was on patrol during the early morning hours of November 10, 2007, when he received a call from dispatch about a “suspicious,” “bleeding” person on Baker Road in Hall County. Presgraves proceeded to the area, where he found Juan Manual Sosa walking along Baker Road. Sosa smelled of alcohol, he was bleeding from his nose and mouth, and had a small laceration above his eye. Sosa told the officer that he had been “beaten up” at his home at 3234 Baker Road. Although Sosa did not identify the man, he told Presgraves that his assailant had stated that “the police was [sic] no problem” and demonstrated that “he had a gun for the police.”

Presgraves and at least four additional officers proceeded to Sosa's residence, and Presgraves and Deputy Chad Suttles knocked on the front door of the trailer. At the same time, Officer Jeremy Orme, who was armed with a shotgun loaded with bean bags, approached the right side of the trailer ⁴ and observed approximately 50 to 100 plastic cups and beer bottles in the yard. Orme also saw several people standing “towards the back of the trailer” and several more “[coming] out from the back of house”; at least four to six people began quickly walking toward the woods once they spotted the police.

Orme saw an outbuilding behind the trailer, and he began walking toward the building while racking his shotgun. As Orme rounded a corner of the outbuilding, he observed Alvarez standing face-first against the building. Alvarez was wearing a large, dark, camouflage jacket with a hood over his head. Orme could not see Alvarez's hands, so he immediately ordered him to display them and to turn around and walk toward Orme. After Orme repeated the commands at least nine times, Alvarez finally began walking toward the officer, but then turned around and started walking toward the trailer with his back toward Orme, still obscuring his hands.

Meanwhile, Presgraves, who had briefly spoken with a woman who answered the door, had descended from the porch and was proceeding to the rear of the trailer when he heard Orme repeatedly yelling at Alvarez to show his hands. Presgraves also commanded Alvarez to show his hands, and Alvarez failed to comply. Because he was concerned about his safety and the possibility that Alvarez might have a weapon, Presgraves retrieved his taser from his belt. After Alvarez swung at him with his fist, Presgraves deployed the taser, and the prongs hit Alvarez's jacket. Because the initial shot seemed to have no effect on Alvarez, Presgraves “dry stun[ned]” him by making direct contact between Alvarez and the taser prongs. Again, the taser appeared to have no effect, and Alvarez continued swinging his fists at Presgraves, punching him in the chin and knocking the taser out of the officer's hand.

Orme, Presgraves, and Suttles repeatedly ordered Alvarez to stop resisting and place his hands behind his back, but Alvarez refused. Presgraves and Suttles together attempted to get Alvarez's hands behind his back and handcuff him, but Alvarez continued to struggle, and they were unsuccessful. After advising the other two officers to move away from Alvarez, Orme told Alvarez that he was going to shoot him, and Alvarez charged directly toward him. Orme then shot Alvarez with a bean bag round. Alvarez stopped momentarily, but then he “went into a wild rage and went after Sergeant Presgraves and Deputy Suttles ... [and it] just turned into a brawl at that point.” The officers continually yelled at Alvarez and struck him in his upper arms in an attempt to temporarily incapacitate him, but he continued to resist. After Alvarez tossed Presgraves aside, Orme handed Presgraves the shotgun and joined Suttles and a third officer in trying to subdue Alvarez, who was head-butting, kicking, and punching the officers. After Alvarez managed to break free and stand, Presgraves again commanded him to “get back,” Alvarez charged toward the officer, and Presgraves fired a second bean bag round into his chest, finally subduing him enough to handcuff him. As the officers walked Alvarez to a patrol car, he tried to bite, head-butt, trip, and spit on them, and one of the officers sprayed him with pepper spray. Once they placed him in the car, the officers had to restrain Alvarez's feet to stop him from kicking the door.

Alvarez was charged with felony obstruction of Orme, Presgraves, and Suttles, for a total of three counts. Before the trial began, the State advised the trial court that it had been unable to locate Sosa and that it intended to have the officers testify about Sosa's statements to them. Alvarez objected, arguing that the officers' testimony was hearsay and that its admission violated his confrontation rights under Crawford v. Washington.⁵ The trial court initially ruled that it would not allow the State “to tender [Sosa's testimony] through the officers.”

At trial, Presgraves testified that he encountered Sosa, who was bleeding and emitting an odor of alcohol, had a conversation with him, and then proceeded to Sosa's residence. During Presgraves's testimony, the prosecutor asked him whether he was concerned that someone might have a gun. Defense counsel objected on the basis of hearsay, and the trial court overruled the objection. Presgraves then testified that he was at the residence “to investigate a crime” and that he wanted to see Alvarez's hands because of a specific concern regarding the possibility of a firearm. Thereafter, outside the presence of the jury, the State proffered Presgraves's testimony regarding his conversation with Sosa. After considering the proffer, the trial court ruled: “The State's witnesses cannot state to the jury what Mr. Sosa said to the witnesses. That's the extent of the [c]ourt's ruling. The State's witnesses cannot tell the jury that Mr. Sosa said this to me. And that's the extent of the ruling.” Thereafter, Orme testified several times that he had a specific concern about somebody possessing a weapon at the residence; he did not testify about what any other person told him. Suttles also testified that he had “a concern that someone on the property may have a firearm and would be willing to use it against law enforcement.” ⁶

At the conclusion of the trial, Alvarez was found guilty of felony obstruction of Presgraves and misdemeanor obstruction of Orme and Suttles, and he was sentenced to serve 12 months. This appeal followed.

1. Alvarez argues that the trial court erred by admitting the “implicit hearsay” testimony of the police officers regarding Sosa's statements, resulting in the erroneous denial of Alvarez's subsequent motion for a directed verdict. We disagree.

The testimony to which Alvarez objects did not constitute inadmissible hearsay. “[A]n out-of-court statement is considered hearsay only if it is offered to prove the truth of what is contained therein.” ⁷ Pursuant to OCGA § 24–3–2, “[w]hen, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” “Although our Supreme Court has ruled that, only in rare instances will the conduct of an investigating officer need to be explained, this is such a case.” ⁸

Here, the testimony at issue was offered not to prove that Sosa had been beaten up by a man who indicated that he had a weapon, but instead to establish a basis for the officers' actions. “In establishing that [Alvarez] obstructed the officers, the State was required to prove that they were acting in the lawful discharge of their official duties at the time of the obstruction.” ⁹ Thus, the State needed the officers to testify about their encounter with Sosa and their belief that a person at his residence was armed with a gun. “Accordingly, the testimony was admissible as original evidence to explain that the officers were lawfully discharging their official duties.” ¹⁰ This enumeration is without merit.¹¹

2. Alvarez contends that the evidence was insufficient to support the verdict because the State failed to prove that Orme was in the lawful discharge of his official duties.

Pursuant to OCGA § 16–10–24, an essential element of proof of the offense of obstruction of an officer is that the obstruction occurred while the officer was “in the lawful discharge of his official duties.” Here, the jury heard evidence that the police responded to the home to investigate a crime after speaking to a bloody, injured man and that the police had reason to suspect that someone at the scene was armed with a gun. Alvarez does not contend that the police did not have probable cause to respond to the scene. Instead, he argues that Orme did not have probable cause to enter the back yard of the residence.

It is correct that “even if the officers had probable cause to investigate a crime, the Fourth Amendment prohibited them from entering [a suspect's] home or its curtilage without a warrant absent consent or a showing of exigent circumstances.” ¹² In this case, as Orme pulled into the driveway of the residence, he observed several peop...