Hutzel v. State

359 Ga.App. 493

859 S.E.2d 495

HUTZEL

v.The STATE.

A21A0209

Court of Appeals of Georgia.

May 19, 2021

Certiorari Denied September 21, 2021

Drago Cepar Jr., for Appellant.

Sandra Nadeau Wisenbaker, Solicitor-General, Alaina Sullivan Granade, Assistant Solicitor-General, for Appellee.

Caplan Cobb, Julia B. Stone, Sarah A. Brewerton-Palmer, amici curiae.

Rickman, Presiding Judge.

Following a jury trial, Alan Hutzel was convicted of wearing a mask to conceal identity¹ and obstruction of an officer.² On appeal, Hutzel contends that the trial court erred by denying his motion for directed verdict, denying his constitutional challenge to OCGA § 16-11-38, denying his special demurrer, and denying his two motions in limine. For the following reasons, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(Citation and punctuation omitted.) Johnson v. State , 340 Ga. App. 429, 430, 797 S.E.2d 666 (2017).

So viewed, the record shows that in April 2018 there was a planned rally for the National Socialist Movement ("NSM") in the City of Newnan ("the City"). The NSM group applied for and received a permit for the rally from the City, and a law enforcement officer testified that officers "prepared months in advance" for both the NSM³ protestors and anticipated counter-protestors from potential Antifa⁴ groups. A law enforcement officer testified that both groups were known for violence.

On the day of the rally, law enforcement officers encountered a group of counter-protestors gathered at an intersection of a public roadway. The counter-protestors were "singing, chanting, beating on a drum." A law enforcement officer observed that multiple individuals in the crowd were masked. Some of the counter-protestors were wearing backpacks, and at least one protestor was outfitted with a make-shift shield containing an Antifa symbol and protruding screws.

A law enforcement officer testified that he instructed the masked protestors to remove their masks. The officer further testified that "almost immediately, as I began to address the group, they ... began to focus their attention on us. There were individuals who would come up with cameras and demand my name.... Others were pointing their middle finger at us; others were saying expletives towards the police; others were chanting; the drum was beating." The counter-protestors were chanting, " ‘F --- the police,’ as they, you know, shot us the bird, people calling us Nazis and stuff like that." They also began to "act[ ] in concert with one another to help shield these individuals who wore masks in the group."

Hutzel was one of the masked counter-protestors. Hutzel failed to comply with law enforcement officers’ orders to remove to his mask, and he was ultimately arrested. The law enforcement officer who arrested Hutzel testified that "[Hutzel] was part of this group that was acting what I construed violently. He was asked to take the mask off multiple times, but never did." Hutzel testified that law enforcement officers instructed him to remove his mask and that he refused to comply with that instruction. Hutzel also admitted that he interlocked his arms with other counter-protestors as officers approached him.

Hutzel was initially charged in an accusation with wearing a mask to conceal identity. After Hutzel filed a demurrer, the State amended the accusation by including an allegation in the wearing a mask to conceal identity count and adding a misdemeanor obstruction of an officer count. Hutzel was convicted on both counts.⁵

1. Hutzel contends that the trial court erred by denying his motion for directed verdict.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury's verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. A directed verdict of acquittal should be granted only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. OCGA § 17-9-1. In reviewing the denial of a motion for a directed verdict made at the close of the State's case, an appellate court considers not only the evidence produced in the State's case-in-chief, but also any evidence introduced subsequent to the motion by the defense.

(Citation and punctuation omitted.) Sledge v. State , 312 Ga. App. 97, 98 (1), 717 S.E.2d 682 (2011).

(a) Wearing a mask to conceal identity.

The accusation charged that Hutzel

while upon the area ... being a public way, did unlawfully wear a mask, by which a portion of his face was so hidden as to conceal his identity, with the intent to threaten, intimidate, or provoke the apprehension of violence and did so with reckless disregard for the consequences of his conduct, to wit: [Hutzel] did wear said mask during a rally of the National Socialist Movement.

See OCGA § 16-11-38 (a) ("A person is guilty of a misdemeanor when he wears a mask ... by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public property[.]")⁶

Our Supreme Court has held that to obtain a conviction under OCGA § 16-11-38 (a), the State must show "that the mask-wearer (1) intended to conceal his identity, and (2) either intended to threaten, intimidate, or provoke the apprehension of violence, or acted with reckless disregard for the consequences of his conduct or a heedless indifference to the rights and safety of others, with reasonable foresight that injury would probably result." Daniels v. State , 264 Ga. 460, 464 (2) (b), 448 S.E.2d 185 (1994).

Here, the evidence showed that Hutzel was masked and his arms were interlocked with a group of counter-protestors who were shouting obscenities, chanting anti-police slogans, and banging a drum. A law enforcement officer testified that Hutzel "was part of this group that was acting what I construed violently. He was asked to take the mask off multiple times, but never did." The officer further testified that it seemed that the group was "trying to get around behind us ... as if to encircle us" and that he was afraid of the group. Hutzel testified that he was wearing the mask solely to protect his identity, but it is the jurors’ role to determine witness credibility and they were free to reject Hutzel's testimony. See Slaughter v. State , 278 Ga. 896, 896, 608 S.E.2d 227 (2005). Accordingly, the facts were sufficient to permit the jury to determine beyond a reasonable doubt that Hutzel intended to threaten, intimidate, or provoke the apprehension of violence, or acted with reckless disregard for the consequences of his conduct or a heedless indifference to the rights and safety of others, with reasonable foresight that injury would probably result. See In the Interest of I. M. W. , 313 Ga. App. 624, 626-627 (1) (a), 722 S.E.2d 586 (2012).⁷

(b) Obstruction of an officer.

The accusation charged that Hutzel "did knowingly and willfully hinder ... a law enforcement officer ... in the lawful discharge of his official duties by failing to remove a mask upon a request to do so by a uniformed officer." See OCGA § 16-10-24 (a) (defining misdemeanor obstruction of an officer). "Refusing to obey lawful commands of an officer who is seeking to protect his safety will sustain a conviction under this statute." Arsenault v. State , 257 Ga. App. 456, 457 (1) (a), 571 S.E.2d 456 (2002).

The law enforcement officer testified that Hutzel's arms were interlocked with a group of counter-protestors who were behaving violently and that he was intimidated by the group. Hutzel admitted that he refused to comply with the officers’ request to pull down or remove his mask. Accordingly, the evidence was sufficient to sustain his conviction. See Arsenault , 257 Ga. App. at 457 (1) (a), 571 S.E.2d 456 ; Imperial v. State , 218 Ga. App. 440, 440, 461 S.E.2d 596 (1995).

2. Hutzel contends that the trial court erred by denying his constitutional challenge to OCGA § 16-11-38.

The Supreme Court of Georgia's order transferring this case to this Court it stated:

[The Supreme Court of Georgia] has previously rejected a facial constitutional challenge to the statute, see State v. Miller , 260 Ga. 669, 398 S.E.2d 547 (1990), and addressed the standard for conviction under the statute, see Daniels v. State , 264 Ga. 460, 448 S.E.2d 185 (1994). And [Hutzel's] constitutional arguments seek merely to challenge the correctness of those decisions.

Hutzel v. State, (S20A1257 (August 10, 2020).

Accordingly, because OCGA § 16-11-38 has survived a constitutional challenge, this claim has no merit.

3. Hutzel contends that the trial court erred by denying his special demurrer to the wearing a mask to conceal identity count of the accusation.

The accusation charged that Hutzel

while upon the area ... being a public way, did unlawfully wear a mask, by which a portion of his face was so hidden as to conceal his identity, with the intent to threaten, intimidate, or provoke the apprehension of violence and did so with reckless disregard for the consequences of his conduct, to wit: [Hutzel] did wear said mask during a rally of the National Socialist Movement.

See OCGA § 16-11-38 (a) (A person is guilty of a misdemeanor when he wears a mask ... by which any portion of the face is so hidden, concealed, or covered as to conceal the...