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Carlson v. State

Court of Appeals of Georgia

October 20, 2014

CARLSON
v.
THE STATE

Obstruction of officer. Cobb Superior Court. Before Judge Grubbs.

James M. Miller, for appellant.

D. Victor Reynolds, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

McFADDEN, Judge. Andrews, P. J., and Ray, J., concur.

OPINION

Page 891

McFadden, Judge.

After a jury trial, Chris David Carlson was convicted of felony obstruction of an officer, driving with a suspended or revoked license, and misdemeanor obstruction of an officer. He appeals the felony obstruction conviction, arguing first that the trial court committed plain error in its response to a question from the jury about the elements of that offense. Pretermitting the merits of Carlson's analysis of the elements of felony obstruction, we conclude that he is not entitled to reversal under a plain error analysis because it is not highly probable that any error in the response affected the outcome of the proceedings. He also argues that the trial court erred by failing to instruct the jury on misdemeanor obstruction as a lesser included offense of felony obstruction. But as the evidence shows completion of the greater offense of felony obstruction, we conclude that the trial court did not err in failing to charge on misdemeanor obstruction as a lesser included offense. We therefore affirm Carlson's convictions.

1. Facts.

Viewed in the light most favorable to the verdict, Morris v. State, 322 Ga.App. 682 (1) (746 S.E.2d 162) (2013), the evidence shows that a Cobb County police officer was on patrol when a Ford Explorer changed lanes in front of him without signaling. The officer ran the Explorer's license tag and determined that the tag belonged to a Lexus, so he stopped the vehicle. Carlson was driving.

Carlson exited the vehicle, and the officer ordered him to get back in. Instead of complying with the officer's order, Carlson ran. The officer chased after him. Carlson jumped over a fence, the officer followed, and they both fell. The officer attempted to arrest Carlson, but he resisted, punching and kicking the officer. Carlson escaped, ran off again and jumped over a retaining wall. The officer followed and reached Carlson. Carlson punched the officer in the face and kicked him. When the officer tried to handcuff Carlson, Carlson grabbed the handcuffs, threw them and ran off. The officer followed. The two rolled down an embankment, and Carlson continued to kick [329 Ga.App. 310] and punch the officer. The officer was able to straddle Carlson. Carlson grabbed a rock or a brick, which the officer thought Carlson was going to use to strike him, so the officer sprayed Carlson with pepper spray. At that point, Carlson complied with the officer's commands, and the officer was able to handcuff him, using his second set of handcuffs. The state introduced photographs of the bruises and scratches the officer sustained during the altercation.

This evidence was sufficient to support the conviction of felony obstruction under the standard of Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). See OCGA § 16-10-24 (b) (" Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer ... is guilty of a felony[.]" ); Smith v. State, 294 Ga.App. 579, 581 (1) (669 S.E.2d 530) (2008) (violently struggling with officers during their attempt to arrest an accused suffices to show that the accused offered or did violence to the officers and supports a felony obstruction conviction).

2. Claim of plain error in the trial court's response to a question from the jury about the elements of felony obstruction.

Carlson enumerates as error the trial court's response to a ...


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