This appeal is from appellant’s convictions for obstruction of an officer, opprobrious and abusive language, and reckless conduct.
1. Appellant’s first enumeration of error is that therе was a fatal variance between the allegata and the probata with regard to the op
“The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offеred at the trial; and (2) that he may be protected against another prosecution for the same offense.”
Leachman v. State,
2. The general grounds are raised in appellant’s second enumeration of error. The arresting officer testified that he saw a truck leave a tavern owned and operated by appellant and decided to follow it. As he turned his car around to do so, he saw the truck hastily leave the road and drive around behind a building next to the tavern, a rental property also owned by appellant. He found the truck parked behind the house, occupied by two men. Having ascertained that neither of the men had been driving the truck and that both of them were too inebriated to drive it away, the officer сalled for a wrecker. While the officer waited, appellant approached and began to curse the officer and to demand that he leave appellant’s property immediately. When the officer explained why he was there, appellant turned toward the tavern, saying that he would get his shotgun and blow holes in the patrol car. The officer testified that he decided at that time to arrest appellant, but when he put his hand on appellant, appellant pulled back as though to hit the officer. The officer then struck appellant once in the face with a flаshlight and, after a further struggle in which the officer found the use of a stun-gun necessary, managed to handcuff appellant.
Evidence that appellant cursed the officer immediately upon entering the officer’s presence, that he threatened to get a shotgun for the purpose of shooting the patrol car and turned away as though to go get the gun, and that he drew back as though to strike the offiсer when the arrest was begun was sufficient to authorize any rational trier of fact to find appellant guilty beyond a reasonable doubt of the
Appellant’s argument that he could not be convicted of using opprobrious and abusive language because his utterances were in the nature of a remonstrance to an illegаl arrest (see
Scott v. State,
As to appellant’s conviction for reckless cоnduct, however, we are constrained to hold that the evidence did not support that conviction. “A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause the harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of carе which a reasonable person would exercise in the situation is guilty of a misdemeanor.” OCGA § 16-5-60. The allegations in the accusation concerning this offense, and the evidence introduced at trial, werе that appellant threatened to get a gun and shoot the officer’s car, and then turned back toward his tavern. While such speech may very well constitute the crime of terroristic threats (OCGA § 16-11-37), we do not believe it is suсh an “act or omission” which “causes bodily harm to or endangers the bodily safety of another person.” Accordingly, appellant’s conviction for reckless conduct is reversed. The issue of his entitlеment to a directed verdict of acquittal on that charge is, therefore, moot.
3. The State introduced evidence that appellant had been involved in another confrontation with law enfоrcement officers some two years prior to the incident involved here. Appellant contends that the admission of that evidence was error because the incidents were not similar, becаuse he had not put his character in issue, and because the prior incident was too remote in time.
The similarities between the two incidents is readily apparent from the record: in both the previоus and present incidents, appellant, while under the influence of alcohol, intervened in traffic-related occurrences involving uniformed law enforcement officers in marked police vehicles and used strong language to urge the officers to leave his property. We find the incidents sufficiently similar and admissible.
Since the prior incident was sufficiently similar, the testimony concerning that incident was аdmissible as an exception to the rule against evidence which puts a defendant’s character in issue. Id.
Nor was the lapse of time between incidents so long as to require exclusion of the evidence. Although that is one factor to weigh in considering admissibility, it is not determinative.
Campbell v. State,
4. Appellant’s complaint on appeal concerning the trial court’s failure to charge on the statute of limitation is foreclosed by his failure to object to that omission whеn the trial court asked for objections to the charge.
Kelly v. State,
5. In his fifth enumeration of error, appellant complains of the rejection of several requested jury instructions.
The first omitted charge was thаt a police officer may not use deadly force to arrest for a misdemeanor, even if the suspect is attempting to flee. There was no evidence that deadly force was used on appellant and no evidence that the use of force was to prevent appellant from fleeing. That being so, the instruction was not tailored to the evidence and its omission was not error.
Price v. State,
There was no error in refusing to give appellant’s requested charges numbered 6 and 12, concerning the State’s burden of proving a lack of provocation with regard to the offense of opprobrious and abusive language: the trial court charged the jury on the elements of that offense, including lack of provocation, and on the State’s burden of proving each element of each offense beyond a reasonable doubt, thus covering the principles included in the requests.
Rowell v. State,
Appellant also contends that the trial court erred in refusing to give two requested charges on OCGA § 35-8-17, specifiсally on the principle that a law enforcement officer who has not been certified pursuant to OCGA Ch. 35-8 does not have authority to exercise the power of arrest. See
Mason v. State,
First, “[w]hen a requestеd charge deals with a matter not in issue, it is not error for the trial court to deny the request. [Cit.]”
Jones v. State,
Second, the requests to charge on this issue were not submitted to the trial coiirt “at the commencement of trial,” as is required by Rule 10.3 of the Uniform Rules for the Superior Courts. Appellant contends that the requests were timely under the proviso in that rule that “additional requests may be submitted to cover unanticipated points which arise thereafter.” That argument fails for the same reason the charges were inapplicable: the point of the officer’s qualifications never arose at trial.
Finally, appellant contends that the trial court’s rejection of a charge based on Scott v. State, supra, was error. We disagree because, as noted above, the evidence showed that appellant either cursed the officer prior to his arrest or not at all. Thus, the requested charge based on Scott was not tailored to the evidence and its refusal was not error. Price, supra.
Judgment affirmed in part and reversed in part.
