*1 471 hearing, At the for motion new trial Frazier’s trial counsel object questioning not testified that he did to this line of because “they trying purpose. forgot believed — were to use that for a different I — they trying pattern. I think it it use to show I think may facts in that case have been similar to what he was accused Pretermitting object of.” whether counsel’s failure to constituted рerformance, deficient we find Frazier has failed to demonstrate prejudice. including outcry; evidence, M. O.’s immediate leg; testimony neck, shoulders, scratches on her garding Dr. Ware’s re- corroborating trauma; evidence; internal the DNA testi- mony boyfriend; of M. O.’s cousin and and the similar transaction presented by overwhelming H., J. evidence constituted guilt. рrobability Thus, Frazier cannot show that a reasonable exists that, errors, but for counsel’s the outcome ofthe would trial have been (5) (b). Accordingly, Johnson, different. See at 712 denying court did trial not err Frazier’s motion for new trial on this ground. Judgment Ray fully Peterson, JJ., concur in Divi- affirmed. judgment only 2
sion and concur in as to 1. Division 28,
Decided March appellant. Anderson, Kevin A. for Attorney, Howard, Jr., Morrison,
Paul L. District Joshua D. Attorney, appellee. Assistant District v. THE
A15A1755. HOGLEN STATE. 832) Branch, Judge. appeal from conviction assault and three Hoglen argues obstruction, counts of Jeremi that the evidence insufficient both as to of these crimes because he was not a grandfather’s firing gun during Hoglen’s act of to his by police executing agree warrant to arrest him. We and rеverse charge, we affirm but We vacate obstruction. therefore his sentence and remand resentencing. conviction,
“On from criminal we view the evidence light longer most favorable to the with the defendant no enjoying presumption of innocence.” Reese v. 165) weigh (2004) (citation omitted). We neither credibility judge witnesses, determine but nor
the evidеnce viewing in the most favorable whether, the evidence prosecution, “any fact could have found the rational trier of beyond Jackson the crime a reasonable doubt.” essential elements of (III) (B) (99 Virginia, LE2d SCt U. S. omitted). (1979) (citation *2 morning viewed, before sunrise on the the record shows that
So deputies County September 14, 2004, the Hart three uniformed Department approached trailer where a white double-wide Sheriff’s prowler investigate report Hoglen living in order to a Jeremi was Hoglen outstanding warrant. two of the and to arrest deputies on an When police, Hoglen as fled out knocked identified themselves began running toward a barbed wire fence of a left back window and deрuty, third who from the The had stationed himself feet house. jump gave Hoglen window, house, out the back of the saw the stop running. Hoglen over the chase, and ordered him to climbed past woodpile. Hoglen a ran down a hill red barn When fence and tripped deputy, woodpile, the the third had followed him near who Hoglen hands, fence, to secure but stuffеd over the tried deputies, help the the first them under his With and second belt. woodpile clearing trailer, had run to the without the hands were soon secured. Hoglen apprehended, began screaming, Paw, “Paw
As was “They my deputies they’re killing beating me,” are ass.” The three up began Hoglen trailer, the to escort back the hill to fence and the but Hoglen When a in the trailer asked soon refused to walk. woman what deputies responded they happening, the were sheriff’s was Hoglen “they” making As continued to officers an arrest. scream “killing,” “hurting” rang “beating,” this, out. At Hoglen loudly that he harmed and screamed even more hearing added, here, shot, over On the here[!]” trailer, also deputies out, the to have come from the one of called seemed extinguished flashlights their fired.” The so not to “Shots officers by targeted the shooter. One of the officers used his hand cover [Hoglen] giving away Hoglen’s mouth “because our location.” deputies Hoglen As the continued their efforts silence what they pitch up darkness, took behind an oak tree. For was still cover police. nearby deputies minutes, the called for assistance from parked trailer, in a After some movement at the the dome vehicle seeing moving nearby hearing it on. the start and came vehicle deputies Hoglen trailer, them and one of the returned toward the trailer while the other two made a
“mad dash” toward three оak guns drawn, their the two trees on the other side of trailer. With remaining deputies stopped gold vehicle, truck, which con- young baby. tained an woman, older man and woman, and a The Bobby deputies man, Brown, older told the that he had shot a into thought hurting Hoglen, the air because he that thieves were grandson. deputies recovered a .38-caliber rеvolver from the personnel truck. Medical called to the scene determined that only injuries flight. had suffered minor from his the evidence showed that Brown fired the shot at scene, he and were both arrested and with one “individually parties count of and as concerned in deputies crime,” commission of a in that both men assaulted the deadly weapon” by discharging “with a charged the revolver. was also deputy
with three counts of obstruction, one for each possessing involved and Brown with one count of during felony. firearm the commission ofa After the trial court denied motion for directed he was found on all four years counts and sentenced to 20 with five to serve.1 This followed. argues first the evidence was insufficient agree.
sustain his conviction for assault. We *3 (a) (2) provides part person § OCGA 16-5-20 in relevant that a simple “[cjommits commits the offense of assault when he or she an places apprehension act which another in reasonable of receiving injury.” (b) (2) provides a violent OCGA 16-5-21 in rel- part person aggravated evant that a commits an assault when he or deаdly weapon any object, she “[w]ith assaults a device, or with or offensively person, likely which, instrument when used a actually bodily injury.” to or does result in serious OCGA § (b) (2)-(4) provides part person directly in relevant that a not com- mitting a crime is nonetheless “concerned in the commission” of that party “only crime, it, thus a to if” he [ijntentionally person causes sоme other to commit the crime under such circumstances that the other is not any legal incapac- of crime either in fact or because of ity; [ijntentionally ... aids or abets in the commission of the [ijntentionally encourages, crime; advises, hires, or . . . procures counsels, or another to commit the crime. 1 Although indictment, Brown and in the same Brown was not a Hoglen’s
co-defendant at trial. presence” a supplied.) the scene of (Emphasis “mere person guilty crime, of that to find is insufficient crime during, prior to, and after conduct a defendant’s evidence of the defen- authorize criminal act will the commission [only] act of the criminal for commission dant’s that the conduct cоuld defendant from infer encouraged intentionally [that] criminal the commission of act. (citation 193) (2009)
Ratana emphasis supplied). omitted; and footnote together, theory evidence is that taken of the case The State’s single help Hoglen’s fired, well as his shot as before the cries for jury to shot, this after that authorized exclamation, herе!” Even assault at issue. that he was a conclude grandfather “Hoglen to inter asserts, intended his if, the dissent to show that in the record arrest,” there is no evidence in his vene pistol driving possessed grandfather while that his knew likely respond grandfather scene, that the truck help by firing shot, that those cries or initial cries single intentionally encouraged shot single shot, аctually this after the exclamation fired.2As to away driving from the scene a shooter that the act of Court has held support a conviction was insufficient of an theory that crime because was a that the driver under the the shooter to the defendant drove no there was encourage anything [the to advise or “did on the scene scene agree Ga.App. Ratana, at 750. We the crimes.” shooter] to commit the officers’ entitled to believe this with the State placed testimony after the exclamation injury. receiving But a a serious them in reasonable although Hoglen’s short, exclamation In never came. second shot encouragement expression interpreted reasonably as an could completed already act incitement, made Brown’s it was firing *4 officers, is the act that forms his revolver near Hoglen. Brown and indictment both basis of the grand- Hoglen encouraged any his of The absence during single discharge distin- of the act before or father’s 2 testify After the trial court for the State. were the witnesses The threе officers verdict, Hoglen decided not the court that he had informed motion for directed denied testify, defense rested. and the
475 guishes this case from Glover v.
699) (1989), There, on which the State relies. a defendant told his robbery confederate in an armed to “shoot the son of a b****”before encouraged so, the confederate did and was thus found to have guilty possession сrime such that the defendant could be found during felony. (1). a firearm commission of a Id. at The authorizing law, State has cited no other and none, we have found help, intentionally to infer that when called out for encouraged caused, aided, or Brown to fire the put shot that officers reasonable
receiving injury. a violent exclamation, Nor сan “Over here!” encouraged authorize a already to conclude that he the crime that had just occurred, as the Ratana defendant could not be found guilty merely as a to the crime of because he away drove a shooter at from the scene of such an assault. 297 Ga. reasons, 750. For all these cannot be found to havе been a the crime of and his conviction for that crime must be reversed. Id. argues also the evidence was insufficient
support felony disagree. his conviction for obstruction. We provides statute, 16-10-24, obstruction in relevant part:
(a) Except provided (b) as otherwise in subsection ofthis person knowingly willfully section, Code obstructs any or hinders law enforcement officer in the lawful dis- charge guilty of his official duties is of a misdemeanor.
(b) knowingly willfully Whoever resists, obstructs, opposes any law enforcement officer ... in the lawful by offering doing of his or her official duties felony violence to the and such ... officer upon punished by impris shall, thereof, years.3 onment for not less than one nor more than five (Emрhasis supplied.) Hoglen obstructing with all three deputies attempting by “offering of the “fighting violence,” to arrest him to do “inciting
with,” and others to do violence to” each of them. In order to sustain a obstruction, conviction for a record must include evidence that the violence, defendant offered or did such 1986, p. 484, The obstruction statute was amendеd in see Ga. L. such that “the statute) longer offense of misdemeanor obstruction under new no contains the elements of [the App. 397, ‘violence’as does the offense of Carter v. obstruction^]” 228) (1996) (citations punctuation omitted). *5 arresting choking, kicking, biting, punching, See, officers. or as e.g., 798) App. (1) SE2d State, v. 325 Ga. McMullen jumped (defendant (2014) back, choked on officer’s felony neck once in the was in the face and struck him twice (1) (b) (545 App. obstruction); 156, 159 State, SE2d 249 Ga. Arno ld v. (2001) (evidence conviction sustain obstruction sufficient to was being placed patrol belligerent grew car, in after defendant where “pop cap kicking began officer’s] in [the to window, and threatened again). him if he saw ass” testify Hoglen
Although specifically declined the officers recognized resisting words, have “[w] in e had been violent they may reasonably be alone, the level of obstruction can rise to interpreted and amount to an obstruction as a threat of violence (2) (583 App. 511, State, SE2d v. hindrance.” Williams emphasis original). 172) (2003) (punctuation omitted; and footnote reasonably interpreted “speech as a threat of must under offer of violence in order to constitute an violence speech jury.” interpretation (b)[, is a task for the t]he (1) (b) (punctuation App. and footnote omit- Arnold, 249 Ga. at 159 reasonably ted). cried Here, conclude that when could by Brown, fired here,” shot out, encouraging for a time at his revolver second Brown to safety, returning they had succeeded near the officers before offering to those officers. See Jackson thus violence and was 213 875) (1994) (affirming App. conviction for 520-521 Ga. felony tire iron and threatened defendant wielded obstruction when alone). The evi- defendant’s brother kill if he did not leave officer supports shouted, “Over that when dence also the conclusion extinguish arresting deputies their flash- here,” lights were forced by hindering prevent Brown, thus seen and so as Compare Hoglen’s Wiliams, 261 Ga. arrest. their efforts to secure felony (2) (reversing App. for obstruction when conviction 514-515 police that defendant’s verbal threats obstructed no evidence showed duties). completion enforcement Because of his law officer’s reasonably Hoglen’s infer that from it could had some evidence deputies they on the to an offer of violence shouts amounted engaged duties, affirm conviction in their official we (1) (affirming felony Arnold, 249 at 159 See Ga. obstruction. began felony defendant under arrest obstruction where conviction police kicking the next and threatened to shoot officer car window him). time he saw years originally to serve to 20 with five sentenced five-year terms for three the three with running concurrently. In of our obstruction
counts reversal of affirmance felony obstruction, of his conviction three on counts of we cannot determine how the trial court would have sentenced on the three obstruction counts. We therefore vacate sen resentencing opinion. tence and remand for in accordance with this (2) (518 432) (1999) See Maxwell v. (where appellate mandatory court vacated a minimum sentence for possession, cocaine but could not determine whether trial court given five-year forgery would have defendant the full sentence for a conviction, the sentence was vacated and the case remanded for *6 resentencing). Judgment part, part, part, in in reversed and vacated in affirmed resentencing. Andrews, J., Barnes, J., and case remanded P. P.
Ellington, J., McFadden, JJ., Miller, J., P. Dillard and concur. P. part. dissents in Presiding Judge, dissenting part. in
MILLER, respectfully disagree majority opinion’s I with the conclusion aggravated that the evidence was insufficient to convict party assault as a to a crime § under OCGA 16-2-20. conviction, from a criminal we view the evidence in the
light
longer enjoys
most favorable to the
and the defendant no
presumption
Virginia,
(99
the
of innocence. Jackson v.
rational of fact to the defendant guilty beyond State, 65, a reasonable doubt. v. Talifero (1) (734 61) (2012). SE2d (b) (4) provides party that a is a “[intentionally encourages, advises, hires, counsels, crime procures рresence another to commit the crime.” “mere approval amounting encouragement the scene and of a crime not party [a] insufficient to authorize conviction as a to a crime . . . may during, before, criminal intent be inferred from conduct and (Citations punctuation after the commission of the crime.” and omit- ted.) Simpson 210) (1995). 665-666 rеpeatedly yelled grandfather case,
In this
the defendant
to his
police
beating
killing
hurting
him,
the
him.
Hoglen’s grandfather
admittedly
then
fired the
into
thought
grandson
being
air because he
his
hurt.
Whether this
Hoglen encouraged
evidence was sufficient to establish that
grandfather
his
police
question
jury,
fire
at the
was a
368) (1997),
finding
and,
Burks v.
Harvey Magill, appellant. Wasserman, S. Connor L. Attorney, White, Wilkinson, D. Parks District J. Adam Assistant Attorney, appellee. District HOSPITALS,
A15A1811. JEFFERSON v. HOUSTON INC. *7 HOSPITALS, A15A1812. JOHNSON v. HOUSTON INC. HOSPITALS, A15A2022. LUMPKIN v. HOUSTON INC. Boggs, Judge. employee
These three cases arise out of the an misconduct of Perry Hospital, forged reports giving mammography instead of images radiologist Jefferson, for review. Patricia Catherine Gaynelle Lumpkin (“appellants”) Johnson, and received falsified reports stating mammograms learning that their were normal. After employee’s appellants brought misconduct, identical claims Hospitals, Complex Houston Inc. and Houston Healthcare Perry Hospital, Hospital Authority MSO, Inc., d/b/a and the County (collectively, employee, Hospital”), Houston “the as the well physicians practices, several and a “John Doe” defendant. The granted Hospital’s summary judgment, trial court motions for appellants appeal. appellants presented Because have not suf sufficient, unnecessary my remand Based on conclusion that the evidence is it wouldbe resentencing, supra. this case for as discussed in Division