Dеfendant Wynn appeals his convictions of two counts of felony obstruction of a law enforcement officer and one count of giving a false name to a law enforcement officеr. Held:
1. Defendant’s first enumeration of error maintains that the trial court erred in refusing to include a requested charge on simple battery in its instructions to the jury. This contention is based upon the hypothesis that simple battery is a lesser included offense of felony obstruction as charged by the indictment. However, this Court has previously held that simple battery is not a lesser included offense of felony obstruction аnd that there is no error in refusing to include the requested charge.
Pearson v. State,
2. The next enumeration of error challenges the sufficiency of the evidence to authorize defendant’s convictions under the standard provided by
Jackson v. Virginia,
The evidence construed in the light most favorable to sustaining the verdict of the jury shows that two plainclothes police officers were searching fоr a fugitive other than defendant when they came upon a car parked on a dead-end street. Defendant was seated in the car which was surrounded by six or seven teenagers. The locatiоn being a high crime area known for drug sales, the officers decided to investigate. As the officers’ car turned around in order that they might approach the parked vehicle, the parking lights on that vеhicle were turned on and some of the surrounding teenagers were observed get *99 ting into the parked car. Upon approaching the parked car the officers saw an open cоntainer of alcohol, a can of beer on the console next to defendant who was seated in the driver’s seat. The officers identified themselves as police officers and asked defendant to step out of the vehicle. When asked his name, defendant replied that he was “Mark Grimes.” In response to further questions from the officers, defendant stated that he had no identification оr driver’s license on his person and consented to being patted down. During the pat down a wallet was discovered in defendant’s pocket and defendant consented to the officers removing thе wallet and looking in it. The wallet contained a state issued identification card containing defendant’s photograph and true name. When asked about the identification card defendant resрonded that the wallet was his brother’s. As one of the officers turned to walk to the radio in order to request a computer check on the identification card, defendant fled and after a short сhase was caught by the officers. In the course of an ensuing struggle to gain physical custody of defendant, he struck one of the officers with his elbow and another officer in the chest area.
An element of each of the crimes of which defendant was convicted is that the police officer involved be in the lawful discharge of his official duties. “OCGA § 16-10-25 makes it unlawful for any person to give a false name, address, or date of birth ‘to a law enforcement officer in the lawful discharge of his official duties. . . .’ This prohibition against deceitful obstruction of an officer is analogous to OCGA § 16-10-24 (b)’s prohibition аgainst violent obstruction of an officer because both OCGA §§ 16-10-24 (b) and 16-10-25 make it ‘essential that the State prove beyond a reasonable doubt that the obstruction was knowing and wilfiil, and that it occurred while the officer was “in the lawful discharge of his official duties.” OCGA § 16-10-24 (b). See
Hall v. State,
Nonethelеss, the present case may be factually distinguished from
Holt
since, contrary to defendant’s argument, the officers in the case sub judice did not lack articulable suspicion that a violation of the law had occurred. Indeed, the facts available to the officers upon their initial approach of defendant and discovery of the open container of beer resting in plain view provided information, satisfying a probable cause standard, that defendant was in violation of Georgia’s open container law. See OCGA § 40-6-253 (b) which provides in relevant part that “(n)o person shall possess an open container of any alcoholic beverage while
operating
a vehicle in this state.” (Emphasis supplied.) As discussed in
Miller v. State,
It follows that there was sufficient evidence that the officers’ act of questioning defendant was more than a consensual inquiry and was within the scope of the officers’ official duties so that a jury could reasonably determine that defendant’s use of a false name was a violation of OCGA § 16-10-25. Furthermore, the jury was authorized to conclude that the lawful discharge of official duties element of felоny obstruction had been proven beyond a reasonable doubt.
Defendant’s alternative argument in support of this enumeration of error, that there was not sufficient proof that he offered tо do violence to the police officers, also lacks merit. This argument is predicated primarily upon the incorrect premise which we have already rejected that the officеrs were engaged in an unlawful seizure of defendant.
Furthermore, we note that even if the effort of defendant was to get away, and not to stand and fight, this was no defense to the felony obstruction charge. “The offense of obstruction requires the specific intent to hinder law enforcement, and if there exists any threat or act of violence against the officer, then the offense is felony obstruсtion, even though the threat of violence or the act of violence would be a misdemeanor against anyone else.”
Pearson v. State,
*101 3. Defendant enumerates as error the trial court’s charge on circumstantial evidence. Defendant argues that the charge is incorrect and that in the absence of a rеquest it would have been error to have given a correct charge on this inapplicable rule of evidence.
We find that defendant is incorrect on both points. The trial court charged thаt “to warrant a conviction on circumstantial evidence
alone,
the proven facts must not only be consistent with the theory of guilt, but must exclude every other reasonable theory other than the guilt of the аccused.” Defendant’s contention that the addition of the word “alone” constitutes a significant departure from the words of OCGA § 24-4-6 appears to be inconsistent with the holding of our Supreme Court in
Lowe v. State,
Furthermore, “it is well settled in Georgia law that absent extraordinary circumstances not obtaining in the instant case, it is not harmful error to give a jury instruction on circumstantial evidence even if none is actually present in the case, inasmuch as such an instruction would ‘ “g(i)ve (the defendant) a rule more favorable than he could claim.” ’
Latimer v. State,
4. Next, defendant maintains that the trial court improperly injected punishment issues into the guilt-innocence phase of the trial by using the terms “felony” and “misdemeanor” in instructions to the jury whiсh distinguished the obstruction offense charged in two counts of the indictment, OCGA § 16-10-24 (b), from the lesser included offense contained in OCGA § 16-10-24 (a). However, the trial court made no reference to the possible sentеnce for either offense. And, the issue thus posed by defendant was decided adversely to him in
Fletcher v. State,
5. In the final enumeration of error, defendant maintains that the trial court erred by the use of written verdict forms rather than permitting the jury to choose the form of their verdict. Nonetheless, defense counsel was asked to examine the verdict form and state any objections. Defense counsel stated that dеfendant had no objections, and this failure to preserve the issue now argued must be viewed as a waiver.
Wilkes v. State,
Judgment affirmed.