dissenting.
I respectfully dissent because I believe the trial court erred in rejecting defendant Addie Green’s requested jury instruction on her only defense at trial — i.e., a person’s right to resist an unlawful arrest. Justification based on a person’s right to resist an unlawful arrest is a recognized defense in Georgia. See OCGA § 16-3-20 (5), (6); Davis v. State, 172 Ga. App. 193, 194 (1) (322 SE2d 497). Since defendant Green justified her resistance to arrest based on her perception that she was being illegally restrained by a law enforcement officer, the trial court erred in failing to charge the jury as to a person’s right to resist an unlawful arrest. A trial court must charge the jury on a defendant’s sole defense, even without a written request, if the circumstances support the charge. Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513).
The evidence which authorized defendant Green’s conviction reveals that she resisted arrest during a domestic violence investigation at her home. Defendant explained that she resisted a law enforcement officer’s efforts to handcuff her because the officer did not inform her that she was under arrest and because other officers informed her during their investigation that she was not under arrest. With this proof and other testimony regarding the circumstances of her arrest, defendant contends the trial court erred in rejecting her requested jury instruction oh a person’s right to resist an unlawful arrest. The trial court reasoned during the charge conference that such a charge was not authorized because the investigating officers had probable cause to arrest defendant. I believe this was error because the legality of defendant’s arrest was a question of fact for the jury. Davis v. State, 172 Ga. App. at 194 (1), supra.
Citing Stone v. State, 236 Ga. App. 365 (511 SE2d 915), the majority accepts the State’s contention that a charge on justification based on the right to resist an unlawful arrest was not required because such a charge speaks only to the sufficiency of the evidence. In Stone, the defendant was charged with possession of a dangerous weapon, a razor blade, by an inmate. Although the defendant’s sole defense in Stone was that his razor blade was not a dangerous *780weapon, this Court held that the trial court did not err in refusing to instruct the jury that the defendant’s razor was not a dangerous weapon because such an instruction would have spoken to the weight of the evidence regarding an essential element of the crime charged, not a recognized criminal defense. Id. at 366 (1). This holding is supported by reference to the rule in Muhammad v. State, 243 Ga. 404, 406 (1) (254 SE2d 356), which provides that a trial court is not required to instruct that mere presence at the crime scene is insufficient to authorize a conviction because, even where “mere presence” is asserted as the sole defense, such a charge does not go to a recognized defense but “is really a corollary to the requirement that the [S]tate prove each element of the offense charged.” Id. I do not believe that the same reasoning applies in the case sub judice because justification based on a person’s right to resist an unlawful arrest is a recognized defense in Georgia. See OCGA § 16-3-20 (5), (6); Davis v. State, 172 Ga. App. at 194 (1), supra.
Decided November 12, 1999 Robert L. Mack, Jr., for appellant. Keith C. Martin, Solicitor, Michael L. Tripp, Assistant Solicitor, for appellee.Since defendant justified her resistance to arrest based on her perception that she was being illegally restrained by a law enforcement officer, I believe the trial court erred in failing to charge the jury as to a person’s right to resist an unlawful arrest. This is so because a trial court must charge the jury on a defendant’s sole defense, even without a written request, if the circumstances support the charge. Tarvestad v. State, 261 Ga. at 606, supra.