HOLEMAN v. STATE

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Court of Appeals of Georgia.

HOLEMAN v. The STATE.

No. A97A0792.

Decided: June 18, 1997

Michael A. Corbin, Dalton, for appellant. Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

Defendant Dwight Boyce Holeman was convicted following a jury trial of three counts of aggravated assault upon a peace officer, possession of a firearm by a convicted felon, and simple battery.   The trial court also found defendant to be a habitual felon under OCGA § 17-10-7(a).   Defendant appeals following the denial of his motion for new trial.

1. Defendant first contends the trial court erred in failing to give his requested charge on felony obstruction of a police officer as a lesser included offense of aggravated assault on a police officer.   Under OCGA § 16-1-6 an offense may be included within another offense if “(1) [i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged;  or (2)[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.”  “In determining whether a lesser included offense charge is necessary under a given indictment, this Court is required to follow the most recent Supreme Court cases of Edwards v. State, 264 Ga. 131, 442 S.E.2d 444 (1994), and [State v. Alvarado, 260 Ga. 563, 564, 397 S.E.2d 550 (1990) ].”  Strickland v. State, 223 Ga.App. 772, 776(1b), 479 S.E.2d 125 (1996).

The indictments in this case alleged that defendant “did make an assault upon [a] person ․, knowing said person was a peace officer engaged in the performance of his official duties, said assault being with a deadly weapon, to wit:  a .357 magnum pistol, by moving said deadly weapon to point in the direction of said peace officer․”   The offense of felony obstruction is committed when a person “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․”   OCGA § 16-10-24(b).

We agree with the defendant that the indictment in this case was sufficient to put defendant on notice that he might be convicted of the “lesser” offense of felony obstruction of a law enforcement officer, and that the evidence presented at trial would support such a charge.   Cf. Strickland, 223 Ga.App. at 776-777(1b), 479 S.E.2d 125.   Under these circumstances, the trial court erred by refusing, upon written request, to charge the jury on the lesser included crime.

 It does not follow, however, that reversal is required.   Our review of the record shows that the evidence that defendant committed the aggravated assaults was overwhelming, and that, therefore, it is highly probable that the failure to give the requested charge did not contribute to the verdict in this case.  Edwards v. State, 264 Ga. 131, 133, 442 S.E.2d 444 (1994);  Young v. State, 217 Ga.App. 144, 146(1), 456 S.E.2d 733 (1995).   Thus, the error was harmless.  Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869 (1976);  Howard v. State, 220 Ga.App. 579, 583(2), 469 S.E.2d 746 (1996).

 2. Defendant argues the trial court erred in admitting similar transaction evidence involving the defendant and the battery victim because the prior and present offenses were not sufficiently similar.   Our review of the record shows this contention to be meritless.   Both offenses were perpetrated against the same victim.   Both offenses involved a domestic dispute in which the defendant argued with and repeatedly struck his girl friend.   A firearm was used in both crimes, and in addition to the victim, defendant either shot or threatened to shoot others at the scene.   The trial court did not err in admitting the evidence of the prior crime under the facts of this case.   Richards v. State, 222 Ga.App. 853, 855(2), 476 S.E.2d 598 (1996);  see also Malone v. State, 226 Ga.App. 185, 486 S.E.2d 57 (1997).

3. Contrary to defendant's final enumeration of error, the evidence was sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Judgment affirmed.

POPE, Presiding Judge.

JOHNSON and BLACKBURN, JJ., concur.