KING v. STATE (2012)

Court of Appeals of Georgia.

KING v. The STATE.

No. A12A1151.

Decided: October 09, 2012

Amanda Rachelle Gaddis, Gregory A. Hicks, for Appellant. David Lee Cannon Jr., for Appellee.

Following a trial by jury, Shala King was convicted of failure to maintain lane, fleeing and attempting to elude, tampering with evidence, and misdemeanor obstruction. On appeal of these convictions, King argues that (1) the jury instructions failed to give the proper guidelines for determining guilt as to misdemeanor obstruction and (2) the evidence was insufficient as to failure to maintain lane, fleeing and attempting to elude, and tampering with evidence. For the reasons set forth infra, we affirm King's convictions in part, reverse in part, and remand for resentencing.

Viewed in the light most favorable to the jury's guilty verdict,¹ the record reflects that on the night in question, two Holly Springs police officers were on patrol in a marked vehicle when they saw King's car make a wide right turn, failing to maintain its lane. They continued to follow King and saw her vehicle drift into the other lane, at which point the officers activated the blue flashing lights on top of the patrol car in an effort to stop King. Nevertheless, King continued driving, passing what were, in the officers' estimation, many safe places to stop her vehicle. As the patrol car followed behind with blue lights flashing, King made several turns down residential streets, and the officers activated the vehicle's siren when it became clear that King was not stopping.

King eventually pulled into a residential driveway after traveling approximately .7 miles, and the officers approached her vehicle from both sides.² As they did so, King opened her door and engaged in a verbal confrontation with one of the officers regarding her failure to pull over sooner, and King became agitated, throwing a box of cigarettes into the closest officer's chest. The officer could smell burned marijuana inside King's vehicle and directed her toward the back of the car to determine whether she also smelled of the substance, at which point the officers attempted to detain her. But King physically resisted and ignored the officers' commands that she comply. The struggle that ensued brought King and the officers to the ground, and the officers then noticed that she was chewing something and again noticed a strong odor of burned marijuana on her person. Backup then arrived and assisted in restraining King while she remained on the ground.

Once King was restrained, the officers asked her to open her mouth because they suspected that she had consumed marijuana in an effort to conceal it. They detected a small patch of green leafy substance on her tongue, in her bottom teeth, and inside of her cheeks. A search of her person and vehicle revealed no illegal substances. Thereafter, King was convicted by a jury of the charges enumerated above. This appeal follows.

At the outset, we note that on appeal of King's criminal convictions, “we view the evidence in the light most favorable to the jury's verdict, and [King] no longer enjoys a presumption of innocence.”³ And we neither weigh the evidence nor assess witness credibility, “which are tasks that fall within the exclusive province of the jury.”⁴ With these guiding principles in mind, we turn now to King's enumerations of error.

1. First, King argues that the trial court erroneously charged the jury as to the proper guidelines for determining guilt on misdemeanor obstruction. We disagree.

A person commits the offense of misdemeanor obstruction when he or she “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties.”⁵ At the charge conference, the trial court indicated that it would incorporate into its misdemeanor-obstruction charge language from Russell v. State,⁶ in which we recited the statutory language and held that “to consummate an offense of misdemeanor obstruction, some form of knowing and wilful opposition to the officer sufficient to constitute obstruction or hindrance is required, but actual violence or threat thereof is not.”⁷ King entered no objection to this suggestion. Thereafter, the trial court charged the jury as to the statutory language and that “some form of knowing and willful opposition to the officer is sufficient to constitute obstruction or hindrance of a law enforcement officer,” and that “actual violence or threat is not required.” After the charge to the jury, King stated that she “had no exceptions.”

Under OCGA § 17–8–58, “[a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.”⁸ But the failure to so object precludes “appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects the substantial rights of the parties.”⁹ In such cases, as our Supreme Court has explained, “the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.”¹⁰ And because King failed to object to the jury instructions at trial, our review is limited to consideration in this regard.¹¹

Having so reviewed the trial court's instruction as to misdemeanor obstruction, we determine that King has failed to overcome the high hurdle of establishing plain error.¹² Although the trial court's instruction differed slightly from the language set forth in Russell, the instruction was not obviously erroneous nor likely to have affected the outcome of the proceedings because the trial court correctly instructed the jury as to the statutory elements of obstruction—namely, that a person is guilty of misdemeanor obstruction when he or she “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties․” And when a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, “a reviewing court will not disturb a verdict amply authorized by the evidence.”¹³

2. Next, King challenges the sufficiency of the evidence as to her convictions for failure to maintain lane, fleeing and attempting to elude, and tampering with evidence. We will address each of these contentions in turn.

(a) Failure to Maintain Lane. OCGA § 40–6–48(1) provides that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety․” At trial, the officers testified that King failed to maintain her vehicle within a single lane when making a wide right turn and then again after completing the turn. The jurors were also shown a video from the officers' patrol car showing the maneuvers made by King's vehicle. This evidence was sufficient to sustain the jury's verdict.¹⁴

(b) Fleeing and Attempting to Elude. Pursuant to OCGA § 40–6–395(a), it is “unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop.” The officers testified at trial that King traveled .7 miles before bringing her vehicle to a stop after they engaged the emergency lights and siren on the patrol car, passing a number of safe locations to stop. King testified in her own defense and explained that her failure to stop was due to a spotlight the officers shined on her car, which made it impossible for her to see. Nevertheless, “[i]t was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence,”¹⁵ and the evidence was sufficient to sustain the jury's guilty verdict on this count.¹⁶

(c) Tampering with Evidence. A person commits the offense of tampering with evidence when he or she “with the intent to prevent the apprehension or cause the wrongful apprehension of any person or to obstruct the prosecution or defense of any person, ․ knowingly destroys, alters, conceals, or disguises physical evidence or makes, devises, prepares, or plants false evidence.”¹⁷ King was charged with committing this offense by knowingly destroying physical evidence, “to wit: alleged illegal drugs, said evidence involving the prosecution of the offense of possession of marijuana, with intent to prevent the apprehension of herself.”¹⁸

After the struggle between King and the officers, the video of the traffic stop shows King on the ground, straddled by one officer for a lengthy period of time as they waited for backup to arrive. During the investigation that ensued after King was handcuffed and restrained, she complied with an officer's request that she open her mouth, and the officer testified that he detected a small patch of green leafy substance on her tongue, in her bottom teeth, and inside of her cheeks. The video shows King complying with the officer's request, the officer exclaiming that marijuana residue was in her mouth and having another officer look inside, and King denying that she consumed marijuana and protesting against repeated inquiries as to how much marijuana she had consumed. A search of her person and vehicle revealed no illegal substances or drug paraphernalia. At trial, King again denied possessing or consuming any marijuana and explained that any substance in her mouth was the result of the struggle with police on the ground.¹⁹

The officers who testified both described their training in drug detection and identification, and their familiarity with burned and fresh marijuana. The first officer testified that the substance in King's mouth looked consistent with fresh marijuana and that he did not “think to attempt to recover it” from her mouth because he “didn't know that she wouldn't bite down on [his] fingers ․,” and that King was not subjected to a blood test. The second officer also testified that the substance in King's mouth was consistent with marijuana in that it was “a green leafy substance, dark in color” but “chewed up, so it was all separated.” The officer stated that it was not possible that the substance was food because it looked consistent with marijuana, which he had seen chewed up before. And when the State asked if he was “100 percent certain” that the substance was marijuana, he said that he was. Nevertheless, he admitted that there are common substances that look like marijuana. He also testified that he did not retrieve any of the substance from King's mouth, because he “didn't want to get [his] finger bit off” when King was “upset” at the time, and that no blood test was sought.

Neither party cites to Georgia law substantially similar to this case, and our research has returned nothing to suggest that the circumstantial evidence presented by the State is sufficient to sustain King's conviction. Indeed, the facts of the case sub judice greatly differ from cases in which we (and courts in other jurisdictions) have sustained convictions for tampering with suspected drug evidence when other facts suggested that the substance was physical evidence that was destroyed with the “intent to prevent the apprehension ․ of any person or to obstruct the prosecution or defense of any person,”²⁰ e.g., the officers witnessed the defendant place the substance in his mouth when he became aware of their presence, drug paraphernalia was recovered, the defendant refused to expel the substance from his mouth, and the illegal substance was recovered.²¹

Here, although the officers testified that they smelled burned marijuana on King's person and that the substance in King's mouth was consistent with raw or fresh marijuana, the officers did not see King place the substance in her mouth, did not attempt to recover the substance, did not command King to remove the substance, did not test King's blood or urine for marijuana, and did not recover any drugs or drug paraphernalia from her person or vehicle.²² Additionally, the videotaped stop shows King repeatedly complying with the officer's request that she open her mouth for inspection with a flashlight.

The State's only evidence was the officers' testimony that the substance in King's mouth was consistent with marijuana, but this is insufficient to establish that fact beyond a reasonable doubt.²³ Without some other evidence to show that the substance in King's mouth was (1) physical evidence and (2) placed there with the intent to prevent her apprehension or prosecution,²⁴ the State's circumstantial evidence failed to exclude all other reasonable hypotheses except that of guilt, as is required by Georgia law.²⁵

Accordingly, we affirm King's convictions for misdemeanor obstruction, failure to maintain lane, and fleeing and attempting to elude; reverse King's conviction for tampering with evidence; and remand to the trial court for resentencing.

Judgment affirmed in part, reversed in part, and case remanded.

DILLARD, Judge.

ELLINGTON, C.J., AND PHIPPS, P.J., concur.