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• Title: Denny v. State
• Author : Court of Appeals of Georgia
• Release Date : January 05, 1996
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 52 KB

Description

David William Denny was indicted on three counts of felony [222 GaApp Page 675] obstruction of a law enforcement officer. A jury found him guilty of three counts of misdemeanor obstruction of a law enforcement officer and he appeals from the judgment entered on the jury's verdict. On appeal, the presumption of innocence no longer prevails, we view the evidence in the light most favorable to the verdict and we do not speculate as to which evidence the jury chose to believe or disbelieve. Gurlaskie v. State, 196 Ga. App. 794 (1) (397 S.E.2d 66) (1990). Viewed in that light, the evidence presented at trial established that three deputies from the Whitfield County Sheriff's Office went to Denny's home to arrest him pursuant to a contempt of court order for failure to pay child support. Although Denny's social security number, date of birth and address were correct on the order, Denny pointed out to the officers that the order was technically deficient because it denominated the party sought as David William Denny, not David William Denny II and because the child's name was incorrect. Despite Denny's concerns about the form of the order, the officers informed him that they intended to take him into custody. As the officers attempted to handcuff him, Denny began shoving, elbowing and kicking the officers. Denny broke free and ran into the backyard where the officers ultimately subdued him. 1. Denny argues that because he was convicted of misdemeanor obstruction of an officer rather than felony obstruction, the three counts, which arose out of the same transaction, should have merged for sentencing purposes. The crime of felony obstruction of a law enforcement officer requires ""offering or doing violence to the person of"" a law enforcement officer. OCGA § 16-10-24 (b). Citing Walker v. State, 206 Ga. App. 81 (424 S.E.2d 364) (1992), Denny acknowledges that injuring more than one officer would have justified sentencing on multiple counts of the same offense. But he maintains that misdemeanor obstruction, which is defined as ""knowingly and willfully obstruct[ing] or hinder[ing] any law enforcement officer in the lawful discharge of his official duties"" (OCGA § 16-10-24 (a)), should be sentenced only as one offense regardless of how many officers are involved because his arrest constituted a single transaction. Denny relies on Phillips v. State, 162 Ga. App. 199 (290 S.E.2d 142) (1982), in which the court held that the theft of several items constituted a single larceny offense. However, the court also noted in Phillips that ""crimes against property differ from crimes against persons, for one who, by a single act, injures more than one person may be charged with multiple offenses."" Id. at 200 (2). Here, even though the jury did not find Denny guilty of felony obstruction which has the essential element of offering or doing violence to the officers, it did find that he wilfully obstructed or hindered three officers' attempts to take him into custody by shoving each of the officers, pushing all three off of him, and physically resisting their efforts to handcuff him, knocking [222 GaApp Page 676] Officer Shiver's glasses off, and shoving Officer Chastain against the wall. While some of Denny's actions were collective, such as fleeing, and would constitute a single offense, Denny's actions against each individual law enforcement officer constituted separate crimes and do not merge in fact or law. See OCGA §§ 16-1-6 (1) and 16-1-7; State v. Smith, 193 Ga. App. 831, 832 (1) (389 S.E.2d 547) (1989). Because there were three separate victims, the trial court did not err in treating the counts as discrete offenses for sentencing. See Dennis v. State, 220 Ga. App. 420 (469 S.E.2d 494) (1996); Duitsman v. State, 212 Ga. App. 348 (441 S.E.2d 888) (1994).

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