SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
December 16, 2013
In the Court of Appeals of Georgia A13A2365. HICKEY v. THE STATE.
MILLER, Judge.
Following a jury trial, Lorenzo Keith Hickey was convicted of felony
obstruction (OCGA § § 16-10-24 (b)).1 Hickey appeals from the denial of his motion
for new trial, contending that the trial court erred in (1) excluding proffered evidence
during his cross-examination of the victim, and (2) charging on misdemeanor
obstruction without charging on lesser included offenses or giving the jury that option
on the verdict form. Discerning no error, we affirm.
1 Hickey was also convicted of battery and simple battery, however, the trial court merged those counts into his obstruction conviction for sentencing purposes. Viewed in the light most favorable to the jury’s verdict,2 the evidence shows
that, shortly before noon on August 3, 2009, a fight broke out between Hickey and
another detainee in one of the dorms at the Houston County Detention Center. Five
or six officers responded to the fight. While one uniformed officer held the other
detainee and tried to calm him down, Hickey swung a punch at the other detainee
over the officer’s shoulder. The officer then grabbed Hickey by his clothing, made
him back up and told him to stop. Hickey looked right at the officer, swung his arm
and struck the officer in the bottom lip.
1. Hickey contends that the trial court erred in excluding proffered evidence
regarding how the detention center handled Hickey and the other detainee after the
fight. Specifically, Hickey argues that the proffered evidence was relevant to a
determination of his intent or lack thereof.3 We disagree.
At trial, during his cross-examination of the officer, Hickey asked the officer
what normally happens when detainees are involved in fights. The officer responded
2 Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). 3 Hickey also argues that the proffered evidence was relevant to impeach the officer’s testimony. This particular ground for admission of the proffered evidence has been waived because it was not raised in the trial court. See Williams v. State, 277 Ga. App. 106, 108 (2) (625 SE2d 509) (2005).
2 that a report is completed, and that it is handled differently if a detainee hits an
officer. Hickey then asked the officer whether the detainees are normally removed
from their pods, and the officer responded affirmatively. When Hickey then tried to
ask the officer what happens when detainees are removed from their pods, the trial
court interrupted the cross-examination and asked counsel to approach the bench.
The trial court raised a relevancy concern regarding the line of questioning.
Trial counsel argued that the procedure for handling detainees after a fight was
relevant because no administrative action was taken against Hickey other than a
report, whereas the other detainee involved in the fight was removed from his pod and
“put in the hole.” Trial counsel argued that the proffered evidence went to intent to
some degree, i.e., whether or not Hickey intentionally hit the officer. Following trial
counsel’s proffer the trial court ruled that anything that happened after the fight was
not relevant.
“A trial court’s rulings on the relevancy of evidence will not be disturbed
unless there is an abuse of discretion.” (Citation omitted.) Agan v. State. 262 Ga. 783,
784 (426 SE2d 552) (1993).
Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court, and if an item of evidence has a
3 tendency to help establish a fact in issue, that is sufficient to make it relevant and admissible. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors.
(Citation and punctuation omitted.) Jones v. State, 276 Ga. App. 810, 816 (4) (625
SE2d 4) (2005). Irrelevant matter, however, should be excluded. [Former] OCGA §
24-2-1.4
“A factfinder may infer that a person acted with criminal intent based upon the
words, conduct, demeanor, motive, and all other circumstances connected with the
act for which the accused is prosecuted.” (Citation and punctuation omitted; emphasis
supplied.) Butler v. State, 284 Ga. App. 802, 803 (644 SE2d 898) (2007). Here, the
proffered evidence dealt with administrative actions or decisions that occurred after
Hickey struck the officer. Since these actions or decisions were not part of the
circumstances connected with the act for which Hickey was accused, the proffered
evidence was not relevant to the issue of whether Hickey intended to strike the
4 The former provisions of OCGA § 24-2-1 were in effect until January 1, 2013, when Georgia’s new rules of evidence became effective. See Ga. Laws 2011, Act 52, § 2. Georgia’s new evidence code defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OCGA § 24-4-401. Since this case was tried in December 2009, the prior evidence code applies.
4 officer. Accordingly, the trial court did not abuse its discretion in excluding the
proffered evidence.
2. Hickey also contends that the trial court erred in giving the jury an additional
charge on obstruction of an officer that applied only to misdemeanor obstruction.
Specifically, Hickey argues that the additional charge allowed the jury to convict
Hickey for actions other than intentionally doing violence to the officer. We discern
no error.
Because Hickey failed to object to the charge at trial on this basis,5 we review
the jury charge for plain error only. See Allen v. State, 290 Ga. 743, 744-745 (3) (723
SE2d 684) (2012); OCGA § 17-8-58. “Under this standard, we must determine
whether there is an error that has not been affirmatively waived, is clear and obvious,
affects the defendant’s substantial rights, and seriously affects the fairness, integrity
or public reputation of the judicial proceedings.” (Citation and punctuation omitted.)
Durham v. State, 292 Ga. 239, 241 (3) (734 SE2d 377) (2012).
With regard to felony obstruction, the trial court charged the jury as follows:
5 At trial, Hickey only objected to the additional charge on the ground that there was no testimony that “anything that occurred actually impeded [the officers’] ability to do what they were doing.
5 [C]ount 1 of this indictment is obstruction of an officer. This is the definition. A person commits the offense of obstruction of an officer when that person knowingly and willfully resists, obstructs, or opposes any prison guard in the lawful discharge of the official duties by doing violence to the person of the officer.
(Emphasis supplied.) The trial court also gave the following additional charge:
Free access — add to your briefcase to read the full text and ask questions with AI
SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
December 16, 2013
In the Court of Appeals of Georgia A13A2365. HICKEY v. THE STATE.
MILLER, Judge.
Following a jury trial, Lorenzo Keith Hickey was convicted of felony
obstruction (OCGA § § 16-10-24 (b)).1 Hickey appeals from the denial of his motion
for new trial, contending that the trial court erred in (1) excluding proffered evidence
during his cross-examination of the victim, and (2) charging on misdemeanor
obstruction without charging on lesser included offenses or giving the jury that option
on the verdict form. Discerning no error, we affirm.
1 Hickey was also convicted of battery and simple battery, however, the trial court merged those counts into his obstruction conviction for sentencing purposes. Viewed in the light most favorable to the jury’s verdict,2 the evidence shows
that, shortly before noon on August 3, 2009, a fight broke out between Hickey and
another detainee in one of the dorms at the Houston County Detention Center. Five
or six officers responded to the fight. While one uniformed officer held the other
detainee and tried to calm him down, Hickey swung a punch at the other detainee
over the officer’s shoulder. The officer then grabbed Hickey by his clothing, made
him back up and told him to stop. Hickey looked right at the officer, swung his arm
and struck the officer in the bottom lip.
1. Hickey contends that the trial court erred in excluding proffered evidence
regarding how the detention center handled Hickey and the other detainee after the
fight. Specifically, Hickey argues that the proffered evidence was relevant to a
determination of his intent or lack thereof.3 We disagree.
At trial, during his cross-examination of the officer, Hickey asked the officer
what normally happens when detainees are involved in fights. The officer responded
2 Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). 3 Hickey also argues that the proffered evidence was relevant to impeach the officer’s testimony. This particular ground for admission of the proffered evidence has been waived because it was not raised in the trial court. See Williams v. State, 277 Ga. App. 106, 108 (2) (625 SE2d 509) (2005).
2 that a report is completed, and that it is handled differently if a detainee hits an
officer. Hickey then asked the officer whether the detainees are normally removed
from their pods, and the officer responded affirmatively. When Hickey then tried to
ask the officer what happens when detainees are removed from their pods, the trial
court interrupted the cross-examination and asked counsel to approach the bench.
The trial court raised a relevancy concern regarding the line of questioning.
Trial counsel argued that the procedure for handling detainees after a fight was
relevant because no administrative action was taken against Hickey other than a
report, whereas the other detainee involved in the fight was removed from his pod and
“put in the hole.” Trial counsel argued that the proffered evidence went to intent to
some degree, i.e., whether or not Hickey intentionally hit the officer. Following trial
counsel’s proffer the trial court ruled that anything that happened after the fight was
not relevant.
“A trial court’s rulings on the relevancy of evidence will not be disturbed
unless there is an abuse of discretion.” (Citation omitted.) Agan v. State. 262 Ga. 783,
784 (426 SE2d 552) (1993).
Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court, and if an item of evidence has a
3 tendency to help establish a fact in issue, that is sufficient to make it relevant and admissible. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors.
(Citation and punctuation omitted.) Jones v. State, 276 Ga. App. 810, 816 (4) (625
SE2d 4) (2005). Irrelevant matter, however, should be excluded. [Former] OCGA §
24-2-1.4
“A factfinder may infer that a person acted with criminal intent based upon the
words, conduct, demeanor, motive, and all other circumstances connected with the
act for which the accused is prosecuted.” (Citation and punctuation omitted; emphasis
supplied.) Butler v. State, 284 Ga. App. 802, 803 (644 SE2d 898) (2007). Here, the
proffered evidence dealt with administrative actions or decisions that occurred after
Hickey struck the officer. Since these actions or decisions were not part of the
circumstances connected with the act for which Hickey was accused, the proffered
evidence was not relevant to the issue of whether Hickey intended to strike the
4 The former provisions of OCGA § 24-2-1 were in effect until January 1, 2013, when Georgia’s new rules of evidence became effective. See Ga. Laws 2011, Act 52, § 2. Georgia’s new evidence code defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OCGA § 24-4-401. Since this case was tried in December 2009, the prior evidence code applies.
4 officer. Accordingly, the trial court did not abuse its discretion in excluding the
proffered evidence.
2. Hickey also contends that the trial court erred in giving the jury an additional
charge on obstruction of an officer that applied only to misdemeanor obstruction.
Specifically, Hickey argues that the additional charge allowed the jury to convict
Hickey for actions other than intentionally doing violence to the officer. We discern
no error.
Because Hickey failed to object to the charge at trial on this basis,5 we review
the jury charge for plain error only. See Allen v. State, 290 Ga. 743, 744-745 (3) (723
SE2d 684) (2012); OCGA § 17-8-58. “Under this standard, we must determine
whether there is an error that has not been affirmatively waived, is clear and obvious,
affects the defendant’s substantial rights, and seriously affects the fairness, integrity
or public reputation of the judicial proceedings.” (Citation and punctuation omitted.)
Durham v. State, 292 Ga. 239, 241 (3) (734 SE2d 377) (2012).
With regard to felony obstruction, the trial court charged the jury as follows:
5 At trial, Hickey only objected to the additional charge on the ground that there was no testimony that “anything that occurred actually impeded [the officers’] ability to do what they were doing.
5 [C]ount 1 of this indictment is obstruction of an officer. This is the definition. A person commits the offense of obstruction of an officer when that person knowingly and willfully resists, obstructs, or opposes any prison guard in the lawful discharge of the official duties by doing violence to the person of the officer.
(Emphasis supplied.) The trial court also gave the following additional charge:
Now, this offense may be committed by actions that while not otherwise unlawful have the effect of obstructing or hindering the officer while carrying out his duties. This definition does not make criminal any actions that incidentally hinder an officer. The accused must have knowingly and willfully obstructed or hindered the officer. Whether or not the actions of the defendant did hinder or impede the officer in carrying out his assigned duties, that’s for you, the jury, to decide.
Hickey argues that the additional charge applies only to misdemeanor
obstruction, however, he cites no authority and we have found none that prohibits the
use of this additional charge in felony obstruction cases. Moreover, this Court views
jury charges as a whole in determining whether the jury was fully and fairly instructed
on the law of the case. See Davis v. State, 290 Ga. 757, 761 (5) (725 SE2d 280)
(2012). Here, the charge as given, closely tracked the language of the Code section
and was substantially identical to the suggested pattern charges on obstruction. See
OCGA § 16-10-24 (b); Suggested Pattern Jury Instructions, Vol. II: Criminal Cases,
6 §§ 2.44.10-2.44.30 (4th ed. 2013). The trial court also instructed the jury on the
State’s burden of proving each element of the charged crime, as well as intent, beyond
a reasonable doubt. Viewing the charge as a whole, along with the pattern charges
and the applicable code section, we find no plain error. See Alvarez v. State, 312 Ga.
App. 552, 558-559 (3) (718 SE2d 884) (2011) (given charge as a whole, no plain
error in felony obstruction charge that closely tracked language of statute and pattern
charge). Accordingly, we affirm Hickey’s conviction.
Judgment affirmed. Barnes, P. J., concurs. Ray, J., concurs in the judgment
only.