FOURTH DIVISION

DILLARD, C. J.,

DOYLE, P. J., and MERCIER, J.

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 19, 2018

In the Court of Appeals of Georgia

A18A1212. BACON v. THE STATE.

MERCIER, Judge.

A jury found Sarah Bacon guilty of obstruction of a law enforcement officer

(misdemeanor) and not guilty of simple battery. Bacon appeals, contending that the

trial court erred by denying her motion for a directed verdict of acquittal on the

obstruction charge. She argues that she could not be convicted of obstruction of a law

enforcement officer because the officer, an off-duty municipal law enforcement

officer, was working outside the municipality’s boundaries and thus was not engaged

in the lawful discharge of his official duties when he attempted to arrest her. We agree

and reverse.

Viewed in the light most favorable to the verdict, Edenfield v. State, 293 Ga.

370, 371 (1) (744 SE2d 738) (2013), the evidence shows the following. C. R. was
employed at an American Legion facility in Americus, in Sumter County, Georgia. On

May 28, 2016, C. R. had a disagreement with Bacon, who was her co-worker, in the

facility’s carport area.

Officer J. B, who was a sworn police officer for the Plains Police Department

and the Montezuma Police Department, was working security for the American Legion

that evening. His work at the time did not involve the Plains or Montezuma police

departments, and he was not a sworn officer with the Sumter County Sheriff’s

Department or the City of Americus Police Department.

Officer J. B. testified that when he exited the American Legion building and

entered the facility’s carport area, he saw Bacon strike C. R. on the arm. Officer J. B.

grabbed Bacon and told her she was under arrest, but Bacon “snatched away” from

him. Officer J. B. told her again she was under arrest, and Bacon again pulled away

from him. Bacon then “got into a defensive stance,” and Officer J. B. “bear hugged”

Bacon, placed her against a car, handcuffed her and called for the Sumter County

Sheriff’s Department to transport her to the sheriff’s office. Bacon’s cousin, J. R.,

testified that he witnessed part of the incident and that, when Officer J. B. was

attempting to handcuff Bacon, the officer threatened to “throw [Bacon] on the

ground”; J. R. implored the officer not to do so, and he did not.

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Bacon was charged by accusation with obstruction of a law enforcement officer

and simple battery.

1 As to the obstruction of a law enforcement officer charge, the

accusation alleged that Bacon:

in Sumter County, . . . did knowingly and willfully obstruct [J. B.], a law

enforcement officer with the Plains Police Department, in the lawful

discharge of his official duties by snatching away from him several times,

which made it hard for him to place her under arrest, in violation of the

laws of the State of Georgia.

The sole issue on appeal is whether the trial court erred by denying Bacon’s

motion for a directed verdict of acquittal on the charge of obstruction of a law

enforcement officer, when the officer was an off-duty municipal police officer working

outside of his jurisdiction when he attempted to arrest her.

The standard of review for the denial of a motion for a directed verdict

of acquittal is the same as that for reviewing the sufficiency of the

evidence to support a conviction. A motion for a directed verdict in a

criminal case should only be granted when there is no conflict in the

evidence and the evidence demands a verdict of acquittal as a matter of

1 The accusation states that Bacon committed simple battery against “Sarah

Bacon.” The arrest warrant affidavit names C. R. as the victim, and the evidence

shows that the victim of that offense, if there was one, was C. R. In any event, Bacon

was found not guilty of simple battery and our review does not involve the verdict as

to that count.

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law. Moreover, on appeal the evidence must be viewed in the light most

favorable to the verdict[.]

Where the evidence demands a verdict of acquittal, the failure of a trial

judge to so direct a verdict is reversible error.

Howard v. State, 281 Ga. App. 797, 800 (3) (637 SE2d 448) (2006) (citations,

punctuation and emphasis omitted).

OCGA § 16-10-24 (a) (2015) provides in pertinent part: “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 misdemeanor.” “Consequently, as an

essential element of a prosecution for this offense, the State must prove that the officer

was in the lawful discharge of his official duties at the time of the obstruction.” Green

v. State, 240 Ga. App. 774, 775 (1) (525 SE2d 154) (1999). A police officer is not

discharging his lawful duties when he is making an unlawful arrest, and a person who

resists an unlawful arrest does not hinder the officer in the lawful discharge of his

official duties. Wagner v. State, 206 Ga. App. 180, 182-183 (424 SE2d 861) (1992)

(reversing denial of motion for directed verdict of acquittal where defendant was

charged with obstruction “by physically resisting a lawful arrest,” because State did

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not show that the arrest being resisted was lawful). “[A] person has the right to resist

an unlawful arrest.” Sidner v. State, 304 Ga. App. 373, 376 (3) (696 SE2d 398) (2010).

OCGA § 40-13-30 provides:

Officers of the Georgia State Patrol and any other officer of this state or

of any county or municipality thereof having authority to arrest for a

criminal offense of the grade of misdemeanor shall have authority to

prefer charges and bring offenders to trial under this article, provided that

officers of an incorporated municipality shall have no power to make

arrests beyond the corporate limits of such municipality unless such

jurisdiction is given by local or other law.

(Emphasis supplied.) Unless otherwise provided by law, “[n]o municipality may

exercise any of the powers listed in subparagraph (a) of this Paragraph [e.g., police

protection] or provide any service listed therein outside its own boundaries except by

contract with the county or municipality affected.” Ga. Const. Art. IX, §II, Para. III

(b). It is undisputed that Officer J. B. was an officer of an incorporated municipality

(Plains, as charged, but also Montezuma, per trial testimony) and was off duty and

beyond the corporate limits of the municipality when he attempted to arrest Bacon.

The fact that he was off duty is not determinative because obstruction can be

committed against a law enforcement officer who is off duty or working private

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security. See Stryker v. State, 297 Ga. App. 493, 494 (677 SE2d 680) (2009); Duncan

v. State, 163 Ga. App. 148, 149 (1) (294 SE2d 365) (1982). However, Officer J. B.

was an officer of an incorporated municipality, and he thus lacked power to make an

arrest outside that municipality unless local or other law gave him such jurisdiction. See

OCGA § 40-13-30. The State has not shown that any local or other law gave him such

jurisdiction.

The State concedes that “it may be true that as a municipal police office[r],

outside of his jurisdiction, [Officer J. B.] did not have authority to arrest [Bacon],” but

it asserts that: (1) because Officer J. B. witnessed a crime being committed, “he was

. . . authorized as a private citizen to place [Bacon] into handcuffs and detain her until

a local peace officer could assist him”; and (2) because law enforcement officers have

a duty to maintain the peace 24 hours a day, regardless of whether they are on duty,

municipal officers are authorized to perform their official duties even outside of their

jurisdictions.

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1. Citing OCGA § 17-4-60,

2

the State contends that Officer J. B. was authorized

as a private citizen to arrest Bacon outside of his jurisdiction because a crime was

committed in his presence. But if he was acting as a private person effecting a citizen’s

arrest, as opposed to acting as a law enforcement officer, he was without certain

authority otherwise conferred only upon law enforcement officers. See generally Zilke

v. State, 299 Ga. 232, 235-236 (787 SE2d 745) (2016). Nothing in the language of

OCGA § 16-10-24 supports a conclusion that a person who resists an arrest by a

private citizen commits the offense of obstruction of a law enforcement officer. In

fact, the clear and unambiguous text of OCGA § 16-10-24 provides that obstruction

is committed where a law enforcement officer is lawfully discharging his official duties.

See generally Williams v. State, 299 Ga. 632, 633 (791 SE2d 55) (2016) (stating that,

pursuant to the rules of statutory construction, if the statutory text is clear and

unambiguous, we attribute to the statute its plain meaning). The State has not shown

that OCGA § 16-10-24 applies where an off-duty municipal police officer is effecting

a citizen’s arrest.

2 OCGA § 17-4-60 pertinently provides: “A private person may arrest an

offender if the offense is committed in his presence or within his immediate

knowledge.”

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2. The State asserts that “[t]here is no jurisdictional requirement to the general

rule that a law enforcement officer has a duty to enforce the law and maintain the peace

twenty-four hours a day[,]” and that “[t]his court has yet to set any jurisdictional

limitation on this well-established rule.”

Indeed, “[a] law enforcement officer has a full-time duty to maintain the peace.”

In the Interest of M. M., 265 Ga. App. 381, 383 (1) (c) (593 SE2d 919) (2004)

(footnote and punctuation omitted). However, OCGA § 40-13-30 specifically limits

the arrest powers of municipal officers. Under the rules of statutory construction, “a

specific statute will prevail over a general statute, absent any indication of a contrary

legislative intent.” Williams, 299 Ga. at 634 (citations and punctuation omitted); see

Mann v. State, 273 Ga. 366, 368 (1) (541 SE2d 645) (2001). And a criminal statute

will be strictly construed against the State and in favor of the accused. State v.

English, 276 Ga. 343, 349 (3) (578 SE2d 413) (2003).

To meet its burden under OCGA § 40-13-30 of showing that a local or other

law gave Officer J. B. arrest powers outside the municipality that employed him, the

State relies upon the following cases, each of which involves obstruction of off-duty

law enforcement officers who effected arrests to maintain the peace. See In the

Interest of D. S., 295 Ga. App. 847, 848 (673 SE2d 321) (2009); In the Interest of M.

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M., supra; Frayall v. State, 259 Ga. App. 286, 288 (2) (576 SE2d 654) (2003);

Stryker, supra. The State’s reliance on those cases is misplaced, however, because

none of the cited cases discusses OCGA § 40-13-30 and the authority of a municipal

officer to make a lawful arrest outside the boundaries of the municipality.

Although Zilke, supra, is not precisely on point because it involved the arrest

powers of a campus police officer outside the geographical jurisdiction conferred by

statute (OCGA § 20-3-72), we find the Supreme Court’s analysis in that case

compelling. In Zilke, the Court recognized that “[p]ursuant to OCGA § 17-4-20 (a) (2)

(A), a law enforcement officer may make a custodial arrest without a warrant if the

offense is committed in such officer’s presence,” but, the Court reasoned, nothing in

OCGA § 17-4-20 or OCGA § 17-4-23 (which pertinently permitted a law enforcement

officer certain arrest powers when a motor vehicle operator committed a violation in

his presence) “expands the statutorily-imposed jurisdiction of a campus police

officer.” Id. at 235 (punctuation omitted). Notably, the Supreme Court in Zilke

expressly disapproved cases holding that OCGA § 17-4-23

3 “authorizes a law

3OCGA § 17-4-23 (a) pertinently provides that (1) a law enforcement officer

may arrest a person by citation for motor vehicle violations provided the offense is

committed in his or her presence, or (2) a law enforcement officer may arrest a person

accused of a specified misdemeanor provided the offense was committed in the

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enforcement officer, including a campus police officer, to make a custodial arrest

outside the jurisdiction of the law enforcement agency by which he is employed.” Id.

at 234-235 (footnotes omitted). Likewise, nothing in OCGA § 17-4-20 (a) (2) (A) – or

any authority cited by the State – expands the statutorily-imposed jurisdiction of a

municipal police officer. In fact, as set out above, Georgia’s Constitution expressly

prohibits a municipality from exercising its police protection services outside its own

boundaries except by contract with the affected county or municipality. Ga. Const.

Art. IX, § II, Para. III (b). No such contract was shown here.

In sum, municipal Officer J. B. had no power to arrest Bacon outside of the

territorial limits of his jurisdiction; thus, he was not discharging his official duties when

he tried to arrest her, and she could not be convicted of obstruction of an officer for

resisting the arrest. See generally Ewumi v. State, 315 Ga. App. 656, 665 (2) (b) (727

SE2d 257) (2012) (suspect’s attempt to resist an unlawful arrest cannot form the basis

for an obstruction conviction because officer was not engaged in the lawful discharge

of his official duties). Inasmuch as the evidence demanded a verdict of acquittal, the

officer’s presence.

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trial court erred by denying Bacon’s motion. Thus, the conviction must be reversed.

See generally Ewumi.

Judgment reversed. Dillard, C. J., and Doyle, P. J., concur.

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