Terry v. State

904 S.E.2d 104

TERRY

v.The STATE.

A24A0107

Court of Appeals of Georgia.

July 1, 2024

Karen Suzanne Wilkes, Rome, for Appellant.

Harold Burton Baker, Oliver Jackson Browning Jr., for Appellee.

Pipkin, Judge.

Appellant Joseph Daniel Terry appeals his conviction for the misdemeanor offense of obstruction of an officer. See OCGA § 16-10-24 (a). We agree with Appellant that the State failed to meet its burden of proof and, thus, that the trial court erroneously denied his motion for a directed verdict. Accordingly, we reverse the judgment of conviction.

1. The record before us shows that Appellant was indicted for the offense of felony obstruction of an officer. See OCGA § 16-10-24 (b). The indictment alleged that Appellant "knowingly and willfully oppos[ed] Billy Fuller, a law enforcement officer … in the lawful discharge of his official duties by offering to do violence to said person, by advancing in an aggressive manner towards said officer while holding a baseball bat." At Appellant’s April 2023 trial, the State presented the testimony of Officer Fuller, as well as various video recordings from the night in question. When viewed in the appropriate light, see Coalson v. State, 237 Ga. App. 570, 570, 515 S.E.2d 882 (1999), the State’s evidence established as follows. In the early morning hours of August 4, 2019, Officer Fuller was parked in his patrol car in Rockmart, Georgia. At approximately 2:15 a.m., an officer from another jurisdiction who was traveling through the area asked on the police radio whether officers were familiar with "a man and woman [who] walk[ ] around town carrying a baseball bat." According to the radio call, that officer observed a man with a baseball bat -- later identified as Appellant -- "and a guy on a bike and a female" traveling on a sidewalk near a well-known business called "House of China." While an officer can be heard remarking on the radio that the man was "probably just playing a little night ball," Officer Fuller and a second officer responded to "check it out."

Officer Fuller encountered the trio as he drove south on the road on which the trio was traveling north. When Officer Fuller ar- rived in the area, "the only thing [he] saw them doing was walking on the sidewalk," though he also testified that it was unusual for someone to be walking through the area with a baseball bat at that time of day. The officer explained that the trio remained on the sidewalk, that they were not on private property or near any vehicles, and that the trio were neither bothering nor threatening anyone. When the officers arrived at Appellant’s location, Officer Fuller and the second officer pulled their respective cars alongside the curb with their passenger doors toward the side walk. While both officers and their respective vehicles were equipped with cameras, none of those cameras were turned on by the officers during their initial encounter with Appellant. As to that encounter, Officer Fuller testified as follows:

[Officer Fuller]: So I arrived on location just to basically an interview, so an investigatory -- an investigative detention as to what was going on.¹

[Prosecutor]: All right.

[Officer Fuller]: I had just been called by [the reporting officer] in reference to [Appellant] being around the House of China, so they could’ve possibly broke into it. So I’m using it as an investigative detention. I pull up. As I pull up, I turn on my takedown lights, which is the two bright white lights that come on in front of the light bar on top of the car, and I flip on the cruise lights. The cruise lights are on the end, so they just light up blue. They’re not flashing. There's no siren. Uh, I step out of the car. As I step out of the car, I tell [Appellant] to drop the bat.

[Prosecutor]: At that point, how far away from him were you?

[Officer Fuller]: Probably 15 yards from the front of my car.

[Prosecutor]: Okay. So 15 yards --

[Officer Fuller]: 30 feet.

[Prosecutor]: -- roughly, roughly 30 feet?

[Office Fuller]: (Nodded head in the affirmative). So I give him the command to drop the bat. He says fuck you and continues to walk toward me.

[Prosecutor]: Now, did -- did you initiate the cursing or did he?

[Officer Fuller]: He did.

[Prosecutor]: All right. Go ahead.

[Officer Fuller]: He continues walking towards me, says fuck you to me, so I had pulled my duty weapon out of my holster and I’ve got it down by my side.

[Prosecutor]: Now, why did you do that?

[Officer Fuller]: Well, the short distance as it is, he can close that distance and hit me with the bat prior to me being able to unholster. So --

[Prosecutor]: Okay.

[Officer Fuller]: -- unholster and I’m holding it at my side. I don’t think he can even see it because there’s now a car in between us. He’s at the front end of my car by this point, and I’m moving to the back end of my car, again, giving him the verbal command to drop the bat. Fuck you. He makes it from there to the rear of my car. I again: drop the bat. No cursing. Fuck you. At this point, he’s made it to the back of my car and he’s turned parallel with me. There’s no barrier in between us anymore. At this point, he can -- he can do some serious damage with that bat with the short distance that we are. I made the determination, I pointed my duty weapon at him and gave him another verbal command to drop the bat. At that time, he flipped the bat. He didn’t swing it at me. He didn’t overhand throw it like a baseball. He flipped it at me.

[Prosecutor]: All right. I want to go back up and go through this. So you said originally y’all were about 30 feet?

[Officer Fuller]: That’s, yeah, from the front of my car, so -- and I’m on the other -- on the driver’s side of my car.

[Prosecutor]: Okay. And how is he carrying the bat?

[Officer Fuller]: Just at his side.

….

[Prosecutor]: Okay. Now, let’s be clear. He never raised the bat?

[Officer Fuller]: He did not.

[Prosecutor]: But he flipped the bat towards you?

[Officer Fuller]: Yes.

[Prosecutor attempts to flip the wooden baseball bat but breaks it]

[Prosecutor]: Okay. Now, at that point, what’s going through your mind?

[Officer Fuller]: I, at this point, I’ve already made the determination that he’s under arrest for obstruction. I gave him four chances to drop the bat. I’m in a marked police unit. I’m in uniform. I’m a -- that’s enough identification in my eyes to say the police gave you a lawful order. At that point, he’s -- and he’s made me raise my duty weapon at him. He was going to jail for obstruction.

After flipping the bat, Appellant was instructed to put his hands behind his back, but he failed to comply; according to Officer Fuller, Appellant took a "fighting stance" and was subsequently "tased." It was during this portion of the altercation that the officers’ cameras were engaged.²

Later during his direct testimony, Officer Fuller addressed the "legal duty" he was performing at the time that he approached Appellant, stating as follows:

[Officer Fuller]: Um. All right. So it’s considered an ARS stop.

[Prosecutor]: Explain that.

[Officer Fuller]: Articulable reasonable suspicion, that there is a crime that’s possibly happened or its going to happen.

[Prosecutor]: Okay.

[Officer Fuller]: At that point [after learning] … that [Appellant had been seen] around the House of China, I don’t know if he’s broke into it. I’m going to stop him, talk to him. If I had been given the opportunity to send somebody down to the House of China to see if it had been broken into, while talking with Mr. Terry, if he had gave me the opportunity, why are you walking around at two o’clock in the morning with a baseball bat? Had he of given me a good reason: I’m afraid a dog’s going to attack us. Thank you, sir. Have a nice day. He never gave the opportunity to go from an ARS. He went from ARS to probable cause.

On cross-examination, Officer Fuller acknowledged that there had been no radio traffic indicating a break in at the House of China or any where else in the vicinity. In fact, the officer acknowledged that he was, simply acting "with a hunch" and that his sole focus during the stop was on Appellant to the exclusion of the other two individuals. The individual on the bike rode away during the incident because he was not asked to stop, and officers commanded the woman to leave the scene without any further investigation. Also during cross-examination, Officer Fuller clarified his earlier testimony concerning Appellant’s path of travel, explaining as follows:

[Defense counsel]: …. And so when you wrote in your report and said yesterday [that Appellant] continued walking toward my direction, is this what you mean, that they’re continuing to walk north?

[Officer Fuller]: Yes.

[Defense counsel]: Okay. It gets a little -- it’s hard to describe in words, isn’t it? right

[Officer Fuller]: (Nodded heard in the affirmative)

[Defense counsel]: Most of the time when we think somebody is walking in our direction, we think they’re like walking directly face to face toward us.

[Officer Fuller]: Right

[Defense counsel]: So I want to clarify and make sure I understand. Okay? That’s not what you meant when you said that?

[Officer Fuller]: No ma’am. I meant they were walking in my direction with -- my car was in between us.

….

[Defense Counsel]: So, they’re coming in your direction, but they’re not coming at you?

[Officer Fuller]: Right.

Officer Fuller also clarified on cross-examination that Appellant was holding the bat in a downward direction by his side and that the bat was swinging "down next to [Appellant’s] right leg" like "one would swing your arms when you walk."

[1–3] 2. We now turn to Appellant’s assertion that the State failed to meet its burden of proving the offense of obstruction of an officer. Under OCGA § 16-10-24 (b), felony obstruction of an officer is committed whenever one "knowingly and willfully resists, obstructs, or opposes any law enforcement officer … in the lawful discharge of his or her official duties by offering or doing violence to the...