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Dougherty v. State

Court of Appeals of Georgia, First Division

March 29, 2017

DOUGHERTY
v.
THE STATE.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         Following a bench trial, the trial court found Preston Wayne Dougherty guilty of two counts of misdemeanor obstruction of a law enforcement officer based on Dougherty's resistance to two officers who were attempting to arrest him. Dougherty now appeals, contending that there was insufficient evidence that he obstructed the officers while they were acting in the lawful discharge of their official duties. Upon our review, we affirm.

         Construed in the light most favorable to the verdict, see Bray v. State, 330 Ga.App. 768, 771 (1) (768 S.E.2d 285) (2015), the evidence showed that at approximately 8:00 p.m. on March 19, 2016, a patrol officer with the Floyd County Police Department was turning onto Chulio Road when he was dispatched to an area of that road where someone was reportedly attempting to break into vehicles. It was still light outside when the officer received the call from the 911 dispatcher. As the officer drove by the area of the road where he had been dispatched, he passed by a man, later identified as Dougherty, walking down the side of the road. The officer saw no one else in the area.

         The officer decided to speak with Dougherty in light of the reported attempted car break-ins in that area of the road. The officer turned around his patrol car, activated his blue lights for safety reasons due to the traffic conditions, and parked his car on the road. After exiting his patrol car, the officer approached Dougherty, who continued walking down the opposite side of the road, and said, "Howdy, hey how are you doing sir?" According to the officer, Dougherty acted "completely weird" and "was not making sense" when the officer approached him and tried to speak with him, causing the officer to be concerned for his own and Dougherty's safety while standing on the road.

         After briefly speaking with and observing Dougherty, the officer asked Dougherty to take his hands out of his pockets and then to come over in front of his patrol car away from traffic. The officer testified that Dougherty took his hands out of his pockets, but then kept "patting down his pockets[, ] trying to continue to put his hands back in his pockets." The officer also testified that Dougherty would say "okay" in response to the officer's requests for him to move out of the lane of traffic and come stand in front of the patrol car, but then would start walking down the road away from the officer. Dougherty also insisted that he was "fine, " but then asked the officer if he could take him home.

         After initially continuing to walk down the road, Dougherty followed the officer over to the front of the patrol car and stood there with his hands out of his pockets. Dougherty told the officer his name, but when the officer inquired where he lived, Dougherty responded "right up here" and could not give an address. The officer asked Dougherty for identification and tried to continue questioning Dougherty, but Dougherty was unresponsive to many of his questions, tried to put his hands back in his pockets, and again tried to walk away from the officer while saying "okay."

         The officer had Dougherty lean against the bar on the front of his patrol car and conducted a pat-down search for weapons, and Dougherty consented to a search of his pockets. When the officer searched one of Dougherty's pockets, he felt a needle. When the officer felt the needle, Dougherty took one of his hands off of the police car and swung it in the air while saying "I'm sorry." The officer attempted to place Dougherty's arm behind his back to handcuff and arrest him, but Dougherty tried to pull his arm away from the officer, and a struggle ensued during which the officer attempted to take Dougherty to the ground and subdue him.

         The officer repeatedly ordered Dougherty to stop resisting and to put his hands behind his back so that he could be handcuffed, but Dougherty did not follow the commands even while saying "okay" several more times. The officer tried to physically subdue Dougherty, but Dougherty continued struggling with the officer and, according to the officer, did not appear to feel any pain. During the struggle, the officer's body camera fell off, and Dougherty grabbed it and held it tightly in his hand.

         A second patrol officer arrived on the scene and deployed his taser on Dougherty when he would not stop resisting the officers, but Dougherty continued to disobey both officers' commands to put his hands behind his back so that he could be handcuffed. The officers ultimately were able to subdue Dougherty and handcuff him, but only after deploying the taser a second time.

         Dougherty was indicted on two charges of felony obstruction of a law enforcement officer and one count of battery. Dougherty elected to be tried in a bench trial, where the patrol officer who first responded to the scene (the "first officer") testified to his encounter with Dougherty as summarized above. The second patrol officer who arrived on the scene did not testify.

         The State also introduced into evidence and played for the trial court an audio-video recording from a camera mounted in the front of the first officer's patrol car (the "dash-cam recording"). The first officer's initial interaction with Dougherty on the road was captured only on the audio portion of the dash-cam recording, and some of Dougherty's verbal responses to the officer are difficult to hear on it. The police encounter with Dougherty from the point when he stepped in front of the first officer's patrol car until he was subdued and arrested was captured on both the video and audio portion of the dash-cam recording.

         Following the first officer's testimony and the playing of the dash-cam recording, the State rested. Dougherty elected not to testify or call any defense witnesses.

         After hearing the first officer's testimony and reviewing the dash-cam recording, the trial court acquitted Dougherty of felony obstruction and battery, but found him guilty of two counts of the lesser included offense of misdemeanor obstruction of a law enforcement officer. The trial court found that when the first officer initially approached Dougherty on the road, it was a first-tier consensual encounter for Fourth Amendment purposes, but that the officer escalated the encounter to a second-tier investigatory detention "very fast." The trial court further found that "at that point there was clearly something wrong with Mr. Dougherty" and that, consequently, the first officer had reasonable suspicion, and was acting in the lawful discharge of his official duties, in initially detaining Dougherty for "at least, if nothing else, [being] a pedestrian under the influence of something." According to the trial court, "[a] person that's walking down Chulio Road in that kind of shape is either going to get [him]self killed or someone else." The trial court further found that Dougherty unlawfully resisted both ...


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