                               THIRD DIVISION
                                  GOBEIL,
                           COOMER and HODGES, 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


                                                                      March 6, 2019




In the Court of Appeals of Georgia
 A18A2006. TAYLOR v. THE STATE.


      GOBEIL, Judge.

      Following a jury trial, John Andrew Taylor was found guilty of misdemeanor

obstruction of a law enforcement officer. On appeal, Taylor argues that the evidence

was insufficient to support the verdict. He also contends the trial court erred by

denying his motion in limine to exclude certain testimony and in its charge to the jury.

Because the evidence was insufficient to support the conviction for obstruction, we

reverse.

      “On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, with the defendant no longer enjoying a presumption of

innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation
omitted). We neither weigh the evidence nor judge the credibility of witnesses, but

determine only “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B)

(99 SCt 2781, 61 LE2d 560) (1979).

      Thus viewed in the light most favorable to the verdict, the record shows that

on November 6, 2014, Deputy Christopher Richardson initiated a traffic stop of a

vehicle with a broken tag light. The vehicle’s driver, Taylor, stopped the car in the

middle of the road, and Richardson approached from the passenger side of the vehicle

so as to avoid oncoming traffic. The deputy noticed a strong smell of marijuana

coming from inside the vehicle. Taylor did not make eye contact with Richardson,

and appeared to be chewing something. Richardson asked for and obtained Taylor’s

license, and Taylor complied with the deputy’s request to exit the vehicle and walk

to the patrol car. Richardson then attempted to conduct a safety frisk of Taylor. As the

deputy reached into the waistband of Taylor’s pants, Taylor grabbed the deputy’s

wrist. Richardson then performed a takedown maneuver and “advised [Taylor] to stop

resisting,” but Taylor refused to take his hands out of his pockets. Fearing that Taylor

might be armed, Richardson ordered Taylor to “stop resisting” and “pull [his] hands

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out” of his pockets. The deputy shouted, “Let me see your hands, let me see your

hands,” but Taylor failed to comply.

      Richardson radioed for assistance, and “took a step back” from the situation

once other officers arrived. When asked at trial when, if ever, he attempted to look

into Taylor’s mouth, Richardson testified that, “[a]fter [Taylor] had gotten into

another altercation with another [c]orporal on the shift they finally got him to open

his mouth.” Richardson suspected Taylor may have swallowed contraband. He

eventually looked in Taylor’s mouth and observed a green, leafy substance that he

believed to be marijuana. Corporal Danny Peppers, who responded to the call for

back-up, testified that he, too, had to perform a takedown maneuver on Taylor when

he attempted to search Taylor’s lower body. Peppers did not recall if he saw

Richardson look in Taylor’s mouth, and Peppers testified that he did not ask Taylor

to open his mouth.

      Taylor was charged with one count of tampering with evidence based on his

allegedly destroying suspected marijuana (Count 1), and one count of obstruction of

an officer “by disobeying [Deputy Christopher Richardson’s] lawful command to

open his mouth, in violation of OCGA § 16-10-24 (a)” (Count 2). At the pre-trial

motion hearing, Taylor moved to exclude evidence of the physical struggle between

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Taylor and the officers. Taylor argued this evidence was irrelevant to the obstruction

charge of disobeying a lawful command to open his mouth, and highly prejudicial.

The State responded that evidence of the physical altercation was necessary for the

jury to be able to understand the entire context of the encounter, and thus such

evidence was more probative than prejudicial. The State further argued that evidence

of Taylor’s physical resistance was necessary to explain the charge of evidence

tampering. The trial court denied the motion, noting that Taylor’s trial counsel could

“argue that [the jury is] not to consider any struggle as obstruction because that’s not

what he’s charged with.”

      Following the close of the State’s evidence at trial, which consisted of

testimony from Richardson and Peppers, Taylor moved for a directed verdict on both

counts. The trial court denied the motion based on one of the officer’s testimony that

“he saw something green in [Taylor’s] mouth.” Taylor was acquitted on the charge

of tampering with evidence and convicted of obstruction of an officer as charged in

Count 2. On October 29, 2015, he was sentenced to 12 months’ probation. The trial

court denied Taylor’s motion for a new trial. This appeal followed.

      1. Taylor argues that the evidence was insufficient to sustain his conviction for

obstructing a law enforcement officer. Specifically, he argues the State failed to

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present any evidence that the officers issued a lawful command for Taylor to open his

mouth. We agree.

      “The essential elements of OCGA § 16-10-24 (a) obstructing or hindering law

enforcement officers are: that the act constituting obstruction or hindering was

knowing and willful and that the officer was lawfully discharging his official duties.”

Cline v. State, 221 Ga. App. 175, 175 (471 SE2d 24) (1996). Taylor was accused of

obstructing a officer by failing to open his mouth in response to a lawful command

to do so.1

      Here, there was evidence that Taylor’s mouth was closed, and that he made

“chewing motions.” However, there is simply no evidence that any of the officers

commanded Taylor to open his mouth. In the absence of this evidence, the State failed

to establish that Taylor knowingly or willfully failed to submit to lawful authority by

disobeying a command to open his mouth. See Porter v. State, 224 Ga. App. 276,

279-280 (2) (480 SE2d 291) (1997) (evidence insufficient to sustain a conviction for

obstruction under OCGA § 16-10-24 (a) where, although the defendant ran at the

sight of police, there was no evidence that the officers commanded him to halt or that


      1
         We note that Taylor was not accused of obstruction based on the physical
altercations with officers.

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he failed to comply with any such command). The evidence that Taylor did not open

his mouth, without evidence that such refusal or failure contravened a directive from

Richardson or Peppers, or any other officer, is insufficient to support his conviction

for obstruction. See Lebis v. State, 302 Ga. 750, 761 (III) (A) (808 SE2d 724) (2017)

(in absence of evidence that defendant refused to comply with any directives from

either arresting officer, the defendant’s act of yelling at officers to leave her husband

alone was insufficient to support misdemeanor obstruction convictions). Accordingly,

Taylor’s conviction for obstruction under Count 2 of the accusation must be reversed.

        2. In light of our holding in Division 1, we need not address Taylor’s

contention that the trial court erred in denying his motion in limine to exclude

prejudicial testimony or his contention that the trial court erred in its charge to the

jury.

        Judgment reversed. Coomer and Hodges, JJ., concur.




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