Wynn v. State

511 S.E.2d 201

236 Ga. App. 98

WYNN v. The STATE.

No. A98A1723.

Court of Appeals of Georgia.

January 26, 1999.

Lloyd J. Matthews, for appellant.

Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

McMURRAY, Presiding Judge.

Defendant Wynn appeals his convictions of two counts of felony obstruction of a law enforcement officer and one count of giving a false name to a law enforcement officer. Held:

1. Defendant's first enumeration of error maintains that the trial court erred in refusing to include a requested charge on simple battery in its instructions to the jury. This contention is based upon the hypothesis that simple battery is a lesser included offense of felony obstruction as charged by the indictment. However, this Court has previously held that simple battery is not a lesser included offense of felony obstruction and that there is no error in refusing to include the requested charge. Pearson v. State, 224 Ga.App. 467(1), 480 S.E.2d 911.

2. The next enumeration of error challenges the sufficiency of the evidence to authorize defendant's convictions under the standard provided by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. However, we find that the evidence presented at trial was sufficient to authorize a rational trier of fact to conclude that defendant was guilty beyond a reasonable doubt of the crimes of which he was convicted.

The evidence construed in the light most favorable to sustaining the verdict of the jury shows that two plainclothes police officers were searching for a fugitive other than defendant when they came upon a car parked on a dead-end street. Defendant was seated in the car which was surrounded by six or seven teenagers. The location being a high crime area known for drug sales, the officers decided to investigate. As the officers' car turned around in order that they might approach the parked vehicle, the parking lights on that vehicle were turned on and some the surrounding teenagers were observed getting into the parked car. Upon approaching the parked car the officers saw an open container of alcohol, a can of beer on the console next to defendant who was seated in the driver's seat. The officers identified themselves as police officers and asked defendant to step out of the vehicle. When asked his name, defendant replied that he was "Mark Grimes." In response to further questions from the officers, defendant stated that he had no identification or driver's license on his person and consented to being patted down. During the pat down a wallet was discovered in defendant's pocket and defendant consented to the officers removing the wallet and looking in it. The wallet contained a state issued identification card containing defendant's photograph and true name. When asked about the identification card defendant responded that the wallet was his brother's. As one of the officers turned to walk to the radio in order to request a computer check on the identification card, defendant fled and after a short chase was caught by the officers. In the course of an ensuing struggle to gain physical custody of defendant, he struck one of the officers with his elbow and another officer in the chest area.

An element of each of the crimes of which defendant was convicted is that the police officer involved be in the lawful discharge of his official duties. "OCGA § 16-10-25 makes it unlawful for any person to give a false name, address, or date of birth `to a law enforcement officer in the lawful discharge of his official duties....' This prohibition against deceitful obstruction of an officer is analogous to OCGA § 16-10-24(b)'s prohibition against violent obstruction of an officer because both OCGA §§ 16-10-24(b) and 16-10-25 make it `essential that the State prove beyond a reasonable doubt that the obstruction was knowing and wilful, and that it occurred while the officer was "in the lawful discharge of his official duties." OCGA § 16-10-24(b). See Hall v. State, 201 Ga.App. 328, 411 S.E.2d 274; Powell v. State, 192 Ga.App. 688(3), 385 S.E.2d 772; Kight v. State, 181 Ga.App. 874(1), 354 S.E.2d 202; Carr v. State, 176 Ga.App. 113(1), 335 S.E.2d 622. "(A) police officer is not discharging his lawful duty when he arrests an individual without reasonable or probable cause." Brown v. State, 163 Ga.App. 209, 212, 294 S.E.2d 305.' (Emphasis omitted.) Wagner v. State, 206 Ga.App. 180, 182, 424 S.E.2d 861. Further, an officer is not within the lawful discharge of his official duties when he approaches and questions an individual without specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Id. at 181-183, 424 S.E.2d 861. Where circumstances do not provide an officer with articulable suspicion (less than probable cause, but greater than mere caprice) that the law has been or is about to be violated, the officer's act of detaining and questioning an individual is nothing more than a police-citizen encounter outside the scope of the officer's `official' police duties. See Brooks v. State, 144 Ga.App. 97 98(1), 240 S.E.2d 593." Holt v. State, 227 Ga.App. 46, 48, 487 S.E.2d 629.

Nonetheless, the present case may be factually distinguished from Holt since, contrary to defendant's argument, the officers in the case sub judice did not lack articulable suspicion that a violation of the law had occurred. Indeed, the facts available to the officers upon their initial approach of defendant and discovery of the open container of beer resting in plain view provided information, satisfying a probable cause standard, that defendant was in violation of Georgia's open container law. See OCGA 40-6-253(b) which provides in relevant part that "(n)o person shall possess an open container of any alcoholic beverage while operating a vehicle in this state." (Emphasis supplied.) As discussed in Miller v. State, 202 Ga.App. 414, 414 S.E.2d 326, the term "operating a vehicle" includes being in actual physical control of the vehicle regardless of whether the vehicle is driven. While defendant was not seen driving the vehicle, the totality of the circumstances, including the location of the car and defendant's position in the car, indicate that defendant was in actual physical control of the vehicle and in possession of an open container of an alcoholic beverage.

It follows that there was sufficient evidence that the officers' act of questioning defendant was more than a consensual inquiry and was within the scope of the officers' official duties so that a jury could reasonably determine that defendant's use of a false name was a violation of OCGA § 16-10-25. Furthermore, the jury was authorized to conclude that the lawful...