                               SECOND DIVISION
                                ANDREWS, P. J.,
                             MCFADDEN and RAY, 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/


                                                                    October 20, 2014




In the Court of Appeals of Georgia
 A14A0764. CARLSON v. THE STATE.

      MCFADDEN, Judge.

      After a jury trial, Chris David Carlson was convicted of felony obstruction of

an officer, driving with a suspended or revoked license, and misdemeanor obstruction

of an officer. He appeals the felony obstruction conviction, arguing first that the trial

court committed plain error in its response to a question from the jury about the

elements of that offense. Pretermiting the merits of Carlson’s analysis of the elements

of felony obstruction, we conclude that he is not entitled to reversal under a plain

error analysis because it is not highly probable that any error in the response affected

the outcome of the proceedings. He also argues that the trial court erred by failing to

instruct the jury on misdemeanor obstruction as a lesser included offense of felony

obstruction. But as the evidence shows completion of the greater offense of felony
obstruction, we conclude that the trial court did not err in failing to charge on

misdemeanor obstruction as a lesser included offense. We therefore affirm Carlson’s

convictions.

      1. Facts.

      Viewed in the light most favorable to the verdict, Morris v. State, 322 Ga. App.

682 (1) (746 SE2d 162) (2013), the evidence shows that a Cobb County police officer

was on patrol when a Ford Explorer changed lanes in front of him without signaling.

The officer ran the Explorer’s license tag and determined that the tag belonged to a

Lexus, so he stopped the vehicle. Carlson was driving.

      Carlson exited the vehicle, and the officer ordered him to get back in. Instead

of complying with the officer’s order, Carlson ran. The officer chased after him.

Carlson jumped over a fence, the officer followed, and they both fell. The officer

attempted to arrest Carlson, but he resisted, punching and kicking the officer. Carlson

escaped, ran off again and jumped over a retaining wall. The officer followed and

reached Carlson. Carlson punched the officer in the face and kicked him. When the

officer tried to handcuff Carlson, Carlson grabbed the handcuffs, threw them and ran

off. The officer followed. The two rolled down an embankment, and Carlson

continued to kick and punch the officer. The officer was able to straddle Carlson.

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Carlson grabbed a rock or a brick, which the officer thought Carlson was going to use

to strike him, so the officer sprayed Carlson with pepper spray. At that point, Carlson

complied with the officer’s commands, and the officer was able to handcuff him,

using his second set of handcuffs. The state introduced photographs of the bruises and

scratches the officer sustained during the altercation.

       This evidence was sufficient to support the conviction of felony obstruction

under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)

(1979). See OCGA § 16-10-24 (b) (“Whoever knowingly and willfully resists,

obstructs, or opposes any law enforcement officer. . . in the lawful discharge of his

official duties by offering or doing violence to the person of such officer . . . is guilty

of a felony[.]”); Smith v. State, 294 Ga. App. 579, 581 (1) (669 SE2d 530) (2008)

(violently struggling with officers during their attempt to arrest an accused suffices

to show that the accused offered or did violence to the officers and supports a felony

obstruction conviction).

       2. Claim of plain error in the trial court’s response to a question from the jury

about the elements of felony obstruction.

       Carlson enumerates as error the trial court’s response to a question from the

jury about the elements of felony obstruction. That response, Carlson argues,

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conflates two distinct elements of the offense: “first, the accused must offer violence

or do violence to the officer; and second, the offer or violence must resist, obstruct,

or oppose the officer in the lawful discharge of his official duties.” Cf. OCGA §

16-10-24 (b) (“Whoever knowingly and willfully resists, obstructs, or opposes any

law enforcement officer, prison guard, correctional officer, probation supervisor,

parole supervisor, or conservation ranger in the lawful discharge of his official duties

by offering or doing violence to the person of such officer or legally authorized

person is guilty of a felony and shall, upon conviction thereof, be punished by

imprisonment for not less than one nor more than five years.”). But as Carlson did not

object to the response at the time it was given, his burden is to show plain error. Even

if Carlson’s analysis of the statute is correct and the trial court’s response was

erroneous – and we do not hold or imply that this is so – Carlson cannot meet that

burden.

      During deliberations, the jury asked, “Can pulling away from the officer’s

grasp to resist arrest be defined as offering and doing violence to the officer?

Yesterday’s explanation failed to link the act of resisting an officer’s attempt to

subdue him with offering and doing violence.” The trial court consulted with the



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prosecuting attorney and with defense counsel about how to respond. She then

charged the jury that:

      In a lawful arrest, an officer has the right to use that force reasonably
      necessary to effect the arrest, and the Defendant does not have a right to
      resist the use of such reasonable force. To constitute obstruction of an
      officer as set out in count one, actual injury to the alleged victim need
      not be shown. It’s only necessary that the evidence show beyond a
      reasonable doubt that the defendant offered to or did violence to the
      officer.


      Under this statute, the word “doing violence” means physically resisting.
      Now, with that said, you are to consider all the law you’ve been given
      in this case, all the facts you’ve been given in this case in reaching your
      verdict.


      Carlson argues that the court’s response that “the word ‘doing violence’ means

physically resisting” eliminated the requirement that the jury find that Carlson

committed violence and instead authorized a guilty verdict for felony obstruction

based upon a finding that Carlson physically resisted the officer, even if that physical

resistance was not violent.

      Since defense counsel did not object at trial, Carlson must meet the plain error

standard, which is set out at OCGA § 17-8-58 (b). Under that standard, “we must


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determine whether there is an error that has not been affirmatively waived, is clear

and obvious, affects the defendant’s substantial rights, and seriously affects the

fairness, integrity or public reputation of the judicial proceedings.” Norton v. State,

293 Ga. 332, 336 (6) (745 SE2d 630) (2013) (citations and punctuation omitted).

Assuming without deciding that Carlson satisfied the other factors, “he cannot show

that the court’s instruction affected his substantial rights which in the ordinary case

means he must demonstrate that it affected the outcome of the trial court

proceedings.” Id. at 336-337 (6) (citation and punctuation omitted).

      Given the evidence that Carlson’s physical resistance to the officer’s attempts

to arrest him was violent physical resistance, we find it highly unlikely that the jury

found Carlson guilty of felony obstruction for physically resisting the officer in a

non-violent way. The state presented unrebutted evidence that Carlson repeatedly,

willfully resisted the officer’s attempt to arrest him by punching and kicking the

officer. In other words, the state presented evidence that first, Carlson did violence

to the officer; and second, that the violence obstructed the officer in the lawful

discharge of his official duties, as Carlson asserts was required. Moreover, the trial

court previously had instructed the jury on the statutory definition of the crime, gave

the jury the indictment to read, and instructed the jury that the state had the burden

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of proving every material allegation of the indictment. And when giving the

challenged charge, the court reminded the jury that it was to consider all the law it

had been given.

      Carlson has not shown that it is highly probable that the allegedly inaccurate

instruction affected the outcome of the proceedings. See Gilliland v. State, 325 Ga.

App. 854, 857-858 (2) (c) (755 SE2d 249) (2014). See also Hicks v. State, 287 Ga.

260, 264 (4) (695 SE2d 195) (2010) (no plain error where highly probable that

challenged jury charge did not contribute to verdict); Rouen v. State, 312 Ga. App.

8, 10 (2) (717 SE2d 519) (2011) (citations omitted) (in light of overwhelming

evidence, highly probable that the absence of an instruction on accident did not

contribute to the verdict). He therefore has not established plain error entitling him

to reversal.

      3. Refusal to charge on the lesser included offense of misdemeanor obstruction.

       Carlson argues that the trial court erred by failing to charge the jury on

misdemeanor obstruction as a lesser included offense of felony obstruction. See

OCGA § 16-10-24 (a) (“Except as otherwise provided in subsection (b) of this Code

section, a person who knowingly and willfully obstructs or hinders any law

enforcement officer in the lawful discharge of his official duties is guilty of a

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misdemeanor.”). But because the evidence showed completion of the greater offense

of felony obstruction of an officer, the trial court was not required to charge the jury

on the lesser included offense of misdemeanor obstruction of an officer. White v.

State, 310 Ga. App. 386, 390-391 (3) (714 SE2d 31) (2011); Williams v. State, 301

Ga. App. 731, 733-734 (4) (a) (688 SE2d 650) (2009).

      Judgment affirmed. Andrews, P. J., and Ray, J., concur.




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