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Elrod v. State1/29/2004
Paul Elrod was convicted of aggravated assault on a peace officer, interference with government property, driving under the influence, failure to maintain lane, reckless driving, attempting to elude a police officer, driving without a valid license and speeding. With respect to his conviction for aggravated assault, he asserts two errors. He claims that the trial court erred by (1) failing to charge the jury on the lesser included offense of felony obstruction of a law enforcement officer and (2) failing to charge the jury that knowledge is an essential element of the offense of aggravated assault on a peace officer. We agree that the trial court committed both claimed errors and find that Elrod's conviction for aggravated assault on a peace officer must be reversed.
At 2:20 a.m. on January 26, 1998, police officer Tom Kendrick was on routine patrol and observed a pickup truck, driven by Elrod, traveling approximately 60 mph in a 30-mph zone. Kendrick followed Elrod until Elrod's truck swerved off and back onto the road. At that point, Kendrick activated his blue lights and later his siren in an attempt to get Elrod to stop. Elrod did not stop, but continued driving at excessive speeds, sometimes on the wrong side of the road, and failed to stop at several stop signs. Kendrick and several other officers pursued Elrod for approximately 23 minutes before deputy sheriff Mark Schrader turned his car into the path of Elrod's truck, forcing him to stop.
During the chase, Schrader attempted to pass Elrod on the left in order to get in front of him and slow him down by use of a rolling roadblock. Schrader testified that as he pulled beside Elrod, Elrod "cut into my car." He further testified that Elrod could clearly see his patrol car at the time of the collision. Later in the chase, Schrader tried to go around Elrod again. Schrader testified that as his car got even with Elrod's truck, Elrod "rammed me on the driver's side of my car." Schrader testified that the headlights on Elrod's truck had gone off shortly before the second collision. The other officers involved in *336 the chase testified that they did not see a collision between Elrod's truck and Schrader's patrol car.
Elrod testified and admitted that he had too much to drink but nonetheless drove his truck. He also admitted that he failed to stop when Kendrick signaled for him to do so, that he led several officers on a chase at excessive speeds and that, during the chase, his truck made contact with a patrol car. He testified that his truck did not have sideview mirrors and that when the first collision occurred, he was looking into his rearview mirror. When he looked ahead, he saw that he was running off the road. He then braked and jerked his wheel to regain control. Elrod denied that he had intentionally hit Schrader's car and stated that he was merely trying to keep his truck on the road. He testified that when the second collision occurred, he had lost all power to his truck, was not able to control the steering and had limited braking ability. He denied that he had ever tried or intended to hurt Schrader.
1. Elrod claims that the trial court erred by failing to charge the jury on the lesser included offense of felony obstruction of a law enforcement officer.
Elrod submitted a request to charge the jury on the offense of obstructing or hindering a law enforcement officer as a lesser included offense of aggravated assault on a peace officer, but the court did not give it.
An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when: (1) It 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
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