Drew v. State

Court of Appeals of Georgia

Drew v. State

440 S.E.2d 82, 211 Ga. App. 688, 94 Fulton County D. Rep. 273, 1994 Ga. App. LEXIS 16

Court of Appeals of Georgia·Decided January 19, 1994·No. A94A0198·Published·Cited by 3 cases

Opinion

McMurray, Presiding Judge.

Defendant Drew appeals his conviction of two counts of felony obstruction of a law enforcement officer. Held:

The sole enumeration of error maintains that the trial court erred [689] in failing to charge the jury, or defense counsel was ineffective in failing to request a charge to the jury, on the lesser included offense of misdemeanor obstruction of a law enforcement officer. The misdemeanor obstruction offense does not contain the element of “violence” as does the felony offense. Williams v. State, 196 Ga. App. 154, 156 (1) (395 SE2d 399). However, under the evidence presented at trial any obstruction of the officers was by means of “violence,” and defendant was either guilty of the felony or innocent of any crime. Under these circumstances the trial court did not err in refusing to charge on misdemeanor obstruction and defense counsel was not remiss in failing to request such a charge. Coker v. State, 207 Ga. App. 482, 484 (4) (428 SE2d 578); Dickerson v. State, 207 Ga. App. 241 (1) (427 SE2d 591); Hogan v. State, 205 Ga. App. 637, 638 (2) (423 SE2d 47); Love v. State, 194 Ga. App. 601, 603 (4) (391 SE2d 447).

Decided January 19, 1994. Robert S. Devins, for appellant. Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

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McMurray, Presiding Judge.

Defendant Drew appeals his conviction of two counts of felony obstruction of a law enforcement officer. Held:

The sole enumeration of error maintains that the trial court erred [689] in failing to charge the jury, or defense counsel was ineffective in failing to request a charge to the jury, on the lesser included offense of misdemeanor obstruction of a law enforcement officer. The misdemeanor obstruction offense does not contain the element of “violence” as does the felony offense. Williams v. State, 196 Ga. App. 154, 156 (1) (395 SE2d 399). However, under the evidence presented at trial any obstruction of the officers was by means of “violence,” and defendant was either guilty of the felony or innocent of any crime. Under these circumstances the trial court did not err in refusing to charge on misdemeanor obstruction and defense counsel was not remiss in failing to request such a charge. Coker v. State, 207 Ga. App. 482, 484 (4) (428 SE2d 578); Dickerson v. State, 207 Ga. App. 241 (1) (427 SE2d 591); Hogan v. State, 205 Ga. App. 637, 638 (2) (423 SE2d 47); Love v. State, 194 Ga. App. 601, 603 (4) (391 SE2d 447).

Decided January 19, 1994. Robert S. Devins, for appellant. Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

Drew v. State, 440 S.E.2d 82, 211 Ga. App. 688, 94 Fulton County D. Rep. 273, 1994 Ga. App. LEXIS 16 (Ga. Ct. App. 1994).

Pincite

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Opinion

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