                                FIRST DIVISION
                                BARNES, P. J.,
                            MERCIER and BROWN, JJ.

                     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


                                                                    February 26, 2020




In the Court of Appeals of Georgia
 A19A2066. SEXTON-JOHNSON v. THE STATE.

      BROWN, Judge.

      A jury found Lakyia Sexton-Johnson guilty of felony obstruction of an officer

(Count 1) and possession of an open container of alcoholic beverage while operating

a vehicle (Count 3).1 Sexton-Johnson appeals her convictions and the denial of her

amended motion for new trial, contending that (1) the evidence was insufficient to

support her convictions, (2) the trial court erred in denying her motion for directed

verdict, (3) her conviction for Count 3 is void ab initio, and (4) she received

ineffective assistance of counsel. For the reasons that follow, we affirm in part and

reverse in part.




      1
          The jury acquitted her of possession of marijuana.
       Construed in favor of the verdict, see Gordon v. State, 337 Ga. App. 64 (785

SE2d 900) (2016), the record shows that on October 30, 2016, at approximately 1:30

a.m., Officer Hall of the Gwinnett County Police Department was traveling on Old

Norcross Road, a five-lane road, when he observed a white vehicle stopped in the

center turn lane, perpendicular to the roadway, with its rear sticking out into the

eastbound lanes. Officer Hall could not recall if the vehicle was running, but he

noticed that it did not have any lights on, and that the area was very dark. Officer Hall

testified that he could not see the vehicle until he got close to it, and that if he had not

been observant, he would have struck the vehicle. Concerned for the safety of the

vehicle’s occupants and other drivers, Officer Hall immediately stopped his marked

patrol car behind the vehicle, positioning the patrol car so that it was blocking the two

travel lanes, and turning on all of its lights to alert other drivers. Officer Hall, who

was in uniform, then exited his patrol car and started walking toward the white

vehicle. Sexton-Johnson, the driver of the white vehicle, immediately yelled, “‘[w]hy

the fuck are you pulling me over?’” As Officer Hall approached the vehicle, he could

smell “an overwhelming amount of unburnt marijuana” and noticed two additional

occupants in the vehicle, one in the passenger seat and another sitting behind the



                                             2
driver’s seat.2 When Officer Hall told Sexton-Johnson that he had come upon the

stopped vehicle and had not pulled her over, Sexton-Johnson explained that she went

to a party to pick up her intoxicated friends and that one of the friends tossed her wig

out the window as they were driving down the road; Sexton-Johnson stopped in order

to retrieve the wig from the roadway. According to Officer Hall, a wig was found “a

decent way behind [his] patrol vehicle.”

      Officer Hall requested names, dates of birth, and identification from the three

occupants of the vehicle, and returned to his patrol car to run the information on his

computer. At this point, the second officer, Officer Bezon, arrived on the scene.

Officer Hall returned to the vehicle a second time to obtain additional information,

and then again went back to his patrol car to run the information. When Officer Hall

returned to the vehicle, he observed Officer Bezon standing at the vehicle. Officer

Hall advised the back-seat passenger, who was clearly intoxicated, to step out of the

vehicle because she was being arrested for giving a false name and date of birth. The

passenger yelled, “‘I’m not getting out of the fucking car.’” Officer Hall yelled a

second time for the passenger to step out of the vehicle at which point she grabbed


      2
       According to the second officer who reported to the scene, Officer Hall also
smelled the odor of alcoholic beverages coming from inside the white vehicle.

                                           3
the passenger-side headrest in “almost [a] death grip” and braced herself against the

door jamb. As both officers attempted to remove the passenger from the vehicle,

Sexton-Johnson turned around and “sucker punched [Officer Hall] in the left eye with

[her] closed right fist.” Officer Hall immediately released the passenger and turned

to see Sexton-Johnson attempting to punch him a second time. Officer Hall promptly

exited the back of the vehicle and made his way to the front door of the vehicle just

as Sexton-Johnson kicked open the door, striking him.

      Throughout the incident, Officer Hall demanded that Sexton-Johnson exit the

vehicle, while she hurled obscenities and stated that her passenger was not being

taken to jail. In the meantime, Officer Bezon drew his taser and advised the passenger

that if she did not exit the vehicle, she would be tased. Officer Bezon also radioed for

assistance and multiple officers arrived on the scene. Officer Bezon testified that he

did not have a clear view of the incident between Sexton-Johnson and Officer Hall,

but was able to observe Sexton-Johnson “force her arm through the space in between

the headrest of the driver’s seat and part of the door — or part of the vehicle [and]

looked like she was trying to force [Officer Hall] out of the vehicle or away from the

vehicle.” He did not see Sexton-Johnson punch Officer Hall, but confirmed that

Officer Hall had injuries consistent with being punched in the face, including

                                           4
swelling and “red puffiness to his eye.” Officer Hall testified that within days, he had

slight bruising to the left corner of his eye, “consistent with a black eye.” Both

Sexton-Johnson and her passenger were taken into custody without further incident.

Both officers testified that Sexton-Johnson did not appear to be intoxicated, but that

the back-seat passenger was intoxicated.

      During a search of the vehicle, Officer Bezon recovered several items from the

vehicle, including marijuana from a purse inside the vehicle, a bottle of Jose Cuervo

wedged under the front passenger seat, and a bottle of Crown Royal wedged further

under the front passenger seat. The seals on both bottles had been broken, and the

bottle of Jose Cuervo was three quarters empty, while the bottle of Crown Royal was

half empty. According to Officer Bezon, both bottles were “readily accessible” to

both Sexton-Johnson and her back-seat passenger, but not the front-seat passenger.

      1. Sexton-Johnson contends the evidence was insufficient to support her

conviction for felony obstruction of a law enforcement officer because (a) the State

failed to prove that Officer Hall was in the lawful discharge of his official duties and

(b) the State failed to produce evidence of her criminal intent. “Whoever knowingly

and willfully resists, obstructs, or opposes any law enforcement officer . . . in the

lawful discharge of his or her official duties by offering or doing violence to the

                                           5
person of such officer . . . shall be guilty of a felony. . . .” OCGA § 16-10-24 (b). “A

police officer is not discharging his lawful duty when he arrests an individual without

reasonable or probable cause.” (Citation and punctuation omitted; emphasis in

original.) Wagner v. State, 206 Ga. App. 180, 182 (424 SE2d 861) (1992).

      (a) Relying on Duke v. State, 257 Ga. App. 609 (571 SE2d 414) (2002), and

Buchanan v. State, 259 Ga. App. 272 (576 SE2d 556) (2002), Sexton-Johnson

contends that Officer Hall lacked probable cause to arrest her passenger and the State

therefore failed to prove that Officer Hall was acting in the lawful discharge of his

official duties. In support of this argument, Sexton-Johnson points out that the initial

encounter was a first-tier, consensual encounter, during which a citizen is free to

ignore the police or even flee.

      There are three tiers of police-citizen encounters: “(1) communication between

police and citizens involving no coercion or detention and therefore without the

compass of the Fourth Amendment, (2) brief seizures that must be supported by

reasonable suspicion, and (3) full-scale arrests that must be supported by probable

cause.” (Citation and punctuation omitted.) Galindo-Eriza v. State, 306 Ga. App. 19,

21-22 (1) (701 SE2d 516) (2010). “In a first-tier encounter, police may approach

citizens, ask for identification, ask for consent to search, and otherwise freely

                                           6
question the citizen without any basis or belief of criminal activity so long as the

police do not detain the citizen or convey the message that the citizen may not leave.”

(Punctuation omitted.) Id. at 22 (1). In such an encounter, a citizen is “completely free

to exercise their right to ignore the police and leave. Indeed, a citizen’s ability to walk

away from or otherwise avoid a police officer is the touchstone of a first-tier

encounter. Even running from police during a first-tier encounter is wholly

permissible.” (Citations and punctuation omitted.) Id. at 22-23 (1). A second tier

encounter “occurs when [an] officer actually conducts a brief investigative Terry[3]

stop of the citizen. In this level, a police officer, even in the absence of probable

cause, may stop persons and detain them briefly, when the officer has a particularized

and objective basis for suspecting the persons are involved in criminal activity.”

Walker v. State, 299 Ga. App. 788, 790 (1) (683 SE2d 788) (2009). During a second-

tier encounter, an officer also may request identification. See Brown v.

GeorgiaCarry.org, 331 Ga. App. 890, 893 (770 SE2d 56) (2015) (“[i]n the course of

a ‘second-tier encounter’ under Terry . . ., if an officer has a reasonable, articulable

suspicion of criminal conduct, he may lawfully detain an individual for a brief time

and request identification as part of the investigatory stop”), citing State v. Beasley,

       3
           Terry v. Ohio, 392 U. S. 1, 21-22 (III) (88 SCt 1868, 20 LE2d 889) (1968).

                                            7
270 Ga. App. 638, 639 (607 SE2d 245) (2004). Encounters can progressively

escalate, and a first-tier encounter becomes a second-tier detention “once a reasonable

person no longer believes that he [or she] is free to leave.” Walker, 314 Ga. App. at

70 (1). See State v. Preston, 348 Ga. App. 662, 664 (824 SE2d 582) (2019) (“an

encounter escalates from a first-tier consensual interaction to a second-tier

investigatory detention only . . . when the officer, by means of physical force or show

of authority, has in some way restrained the liberty of the individual”).

      In this case, Officer Hall was lawfully present on the scene because he was

concerned for the occupants of the white vehicle as well as passersby coming upon

the precariously stopped vehicle, an interaction that was clearly a first-tier encounter.

When Officer Hall smelled “an overwhelming amount of unburnt marijuana” and

alcohol emanating from the vehicle, he was authorized to conduct a brief

investigative Terry stop because he had a reasonable suspicion that the occupants of

the vehicle may be involved in criminal activity. See Whitmore v. State, 289 Ga. App.

107, 109 (657 SE2d 1) (2008); Harding v. State, 283 Ga. App. 287 (641 SE2d 285)

(2007). During the course of this second-tier encounter, Officer Hall also was

authorized to request identification from the occupants, and when the back-seat

passenger gave false information about her identity, the officer had probable cause

                                           8
to arrest her. See Morris v. State, 220 Ga. App. 818, 819 (470 SE2d 458) (1996)

(physical precedent only) (giving of false identity provides probable cause for arrest);

Stanley v. State, 213 Ga. App. 95, 96-97 (443 SE2d 633) (1994). Accordingly,

Sexton-Johnson’s contention that Officer Hall lacked probable cause to arrest her

passenger and that the State therefore failed to prove that he was acting in the lawful

discharge of his official duties fails.

      Sexton-Johnson contends that based on Duke and Buchanan, Officer Hall’s

testimony that the passenger gave him a false name is not sufficient to support a

finding of probable cause; the State must produce some physical evidence to support

probable cause, such as a radio transmission or a computer printout. Neither of these

cases affect our conclusion.

      According to Sexton-Johnson, the question here is whether Officer Hall had

probable cause to arrest the passenger; the question in Duke, however, was whether

the officer was justified in conducting a second-tier detention, i.e., whether the stop

of the defendant was justified by a reasonable suspicion of criminal activity. 257 Ga.

App. at 609-610. In Duke, the officer stopped the defendant’s vehicle solely because

of a 911 dispatch he heard over his police radio. Id. We reversed the denial of the

defendant’s motion to suppress, finding that the State had presented no evidence of

                                           9
the source of the 911 dispatch or any specific facts on which the 911 dispatch may

have been based. Id. at 610. We noted that the officer in Duke was not authorized to

conduct a second-tier encounter because he did not observe any traffic violations or

criminal activity; he simply stopped the defendant based upon a radio relay of an

unspecified tip and nothing more. Id. Here, the State presented first-hand testimony

that Officer Hall smelled marijuana and alcohol emanating from the vehicle. Thus,

there were specific, articulable facts that gave rise to a reasonable suspicion of

criminal activity, and, as we concluded above, Officer Hall was authorized to conduct

the second-tier encounter and investigatory stop of the vehicle and its occupants. The

facts of Duke are inapposite to this case.

      Sexton-Johnson contends that in Buchanan, “this Court held that the State must

produce some physical evidence to support probable cause for a defendant’s arrest,

such as a radio transmission . . . or a National Crime Information Center printout.”

This is not a correct interpretation of our holding. In Buchanan, we held that probable

cause to arrest the defendant existed once the officer learned of an outstanding arrest

warrant. 259 Ga. App. at 274. The officer learned of the warrant when he asked

dispatch to check the defendant’s name on the State computer and was advised by

dispatch that a warrant was outstanding. Id. at 273. The defendant had appealed the

                                             10
denial of his motion to suppress, arguing in part that his arrest was illegal because no

warrant was ever produced. Id. at 274. In rejecting this argument, we intimated that

radio transmissions and NCIC printouts are the types of trustworthy, reliable

information upon which an officer may rely in establishing probable cause for an

arrest; we did not hold that the State must produce some physical evidence to support

probable cause for a defendant’s arrest such as a radio transmission or an NCIC

printout. Id. As we explained in State v. Edwards, 307 Ga. App. 267 (704 SE2d 816)

(2010), “if an officer stops an individual outside his home, requests a computer check

on the individual, and is told that there is an outstanding arrest warrant for the

individual, the officer may lawfully arrest the individual. . . .” Id. at 271-272. In this

case, Officer Hall testified that when he ran a check of the passenger’s information

on the computer in his patrol car, it came up as false. The information Officer Hall

gleaned from the computer report was enough to establish probable cause for the

passenger’s arrest. While it may not have been sufficient to authorize a conviction of

the passenger for giving a false name, that issue is not before us. See Harvey v. State,

266 Ga. 671, 673 (469 SE2d 176) (1996) (“[w]hile the NCIC printouts would not be

sufficient to authorize conviction, they have been held to be reliable enough to



                                           11
underlie the reasonable belief which is needed to establish probable cause for arrest”)

(citation and punctuation omitted; emphasis in original).

      (b) Pointing out that felony obstruction of an officer is a specific intent crime,

Sexton-Johnson also asserts that there was no evidence that she knew the passenger

gave false information and that, therefore, the State failed to prove that she knowingly

and willfully acted with criminal intent to hinder Officer Hall when he attempted to

arrest the passenger. Sexton-Johnson asserts that the State’s evidence failed to

exclude the reasonable hypothesis that she was simply trying to defend her passenger

when officers attempted to forcibly remove her from the vehicle. This argument is

meritless.

             The intention with which an act is done is peculiarly for the jury.
      It is often difficult to prove with direct evidence an individual’s intent
      as it existed at the time of the act for which they are being prosecuted.
      Therefore, it is often necessary to prove such intent through the use of
      circumstantial evidence. Intent, which is a mental attitude, is commonly
      detectible only inferentially, and the law accommodates this. A jury may
      infer that a person acted with criminal intent after considering the words,
      conduct, demeanor, motive, and all other circumstances connected with
      the act for which the accused is prosecuted. In order to support a
      conviction, such circumstantial evidence does not have to exclude every
      possible hypothesis other than the defendant’s guilt, but only reasonable
      hypotheses. Whether a hypothesis is reasonable is a question for the

                                          12
      jury, and such finding will not be disturbed on appeal unless the guilty
      verdict is insupportable as a matter of law.


(Citations and punctuation omitted.) Clowers v. State, 324 Ga. App. 264, 266 (2) (a)

(750 SE2d 169) (2013). Here, there was sufficient evidence from which the jury could

find that Sexton-Johnson knowingly and willfully obstructed Officer Hall in the

lawful discharge of his official duties. Sexton-Johnson and her two passengers all

provided their names, dates of birth, and identification to Officer Hall, and Officer

Hall testified that after he returned from running their information through his

computer, he twice advised the backseat passenger — in the presence of Sexton-

Johnson and the other passenger — that she was being arrested for giving a false

name. Officer Hall also testified that during the incident — and after he twice advised

the backseat passenger that she was being arrested for giving a false name — Sexton-

Johnson expressly stated that her passenger was not being taken to jail.

      2. Sexton-Johnson contends that the trial court erred in denying her motion for

directed verdict on the felony obstruction charge because the State’s evidence was

insufficient to prove that Officer Hall had probable cause to arrest her passenger for

giving a false name and date of birth. In particular, Sexton-Johnson contends that the

State failed to produce substantive evidence of the alleged false name and date of

                                          13
birth given by the passenger or her correct name and date of birth. Given our

conclusion in Division 1, supra, the trial court did not err in denying Sexton-

Johnson’s motion for directed verdict.

      3. Sexton-Johnson contends that trial counsel rendered ineffective assistance

by failing to pursue a motion to quash the open container charge, asserting that it was

subject to a general demurrer because she could admit all allegations of the charge

and not be guilty of a crime.4 In order to prevail on a claim of ineffective assistance

of counsel,

      an appellant must show not only that [her] counsel’s performance was
      deficient but also that the deficiency so prejudiced [her] as to create a
      reasonable probability that but for counsel’s errors, the outcome of the
      trial would have been different. Failure to satisfy both requirements is
      fatal to an ineffectiveness claim. In reviewing a trial court’s
      determination regarding a claim of ineffective assistance of counsel, we
      uphold the court’s factual findings unless they are clearly erroneous, and
      review the court’s legal conclusions de novo.


(Citations and punctuation omitted.) Everhart v. State, 337 Ga. App. 348, 353 (3)

(786 SE2d 866) (2016).

      4
        The record reflects that trial counsel filed a demurrer prior to trial, but
admitted during the motion for new trial hearing that he did not pursue the demurrer
or a motion to quash because he did not see any legal basis for doing so.

                                          14
      Count 3 of the indictment charged Sexton-Johnson

      with the offense of POSSESSION OF OPEN CONTAINER OF
      ALCOHOLIC BEVERAGE WHILE OPERATING A VEHICLE
      (O.C.G.A. 40-6-253) for the said accused . . . did possess an open
      container of an alcoholic beverage . . . while operating a vehicle . . . said
      container was not in the possession of a passenger and was not located
      in a locked glove compartment, locked trunk, or other locked non-
      passenger area of the vehicle. . . .


Sexton-Johnson contends that “[o]peration of a vehicle contemporaneous with

possession of the open container is not an essential element of the crime.” She

intimates that in order for the State to have charged her sufficiently with an open

container violation under OCGA § 40-6-253, the State needed to allege that she

possessed the open alcoholic beverage containers in the passenger area of the motor

vehicle on the “roadway or shoulder of [a] public highway.” OCGA § 40-6-253 (b)

(1) (B) provides that “[a] person shall not . . . [p]ossess any open alcoholic beverage

container in the passenger area of any motor vehicle which is on the roadway or

shoulder of any public highway.” We agree.

             A general demurrer challenges the validity of an indictment by
      asserting that the substance of the indictment is legally insufficient to
      charge any crime. In other words, a general demurrer is essentially a
      claim that the indictment is fatally defective and, therefore, void,

                                             15
      because it fails to allege facts that constitute the charged crime or any
      other crime, including a lesser included offense of the charged crime.


(Citation and punctuation omitted.) Everhart, 337 Ga. App. at 353-354 (3) (a). See

also Coleman v. State, 318 Ga. App. 478, 479 (1) (735 SE2d 788) (2012). A general

demurrer “should be granted only when an indictment is absolutely void in that it fails

to charge the accused with any act made a crime by the law.” (Citation and

punctuation omitted.) Poole v. State, 326 Ga. App. 243, 247 (2) (a) (756 SE2d 322)

(2014).

      The Sixth Amendment to the United States Constitution states that
      criminal defendants shall “be informed of the nature and cause of the
      accusation against them.” It is established in Georgia that satisfaction of
      this fundamental principle requires that a criminal indictment which
      does not recite language from the Code must allege every essential
      element of the crime charged.


(Citation and punctuation omitted.) Everhart, 337 Ga. App. at 354-355 (3) (a). As we

reiterated in Everhart, “there can be no conviction for the commission of a crime an

essential element of which is not charged in the indictment. If an accused individual

can admit to all of the allegations in an indictment and still be not guilty of a crime,




                                          16
then the indictment generally is insufficient and must be declared void.” (Punctuation

omitted.) Id. at 355 (3) (a).

       Here, Sexton-Johnson could have admitted all the allegations in Count 3 and

still not be guilty of a crime. Indeed, it might be possible for one to possess an open

container of alcoholic beverage while operating a motor vehicle in a parking lot or

driveway and not be guilty of violating OCGA § 40-6-253. Had trial counsel filed a

motion to quash the open container charge, asserting that it was subject to a general

demurrer, the trial court would have been required to dismiss the charge.

“Accordingly, [Sexton-Johnson’s] trial counsel’s failure to challenge this count

constitutes deficient performance, contributed to [her] conviction on a void count, and

therefore harmed [her] and prejudiced [her] case.” Everhart, 337 Ga. App. at 355 (3)

(a). Sexton-Johnson’s conviction on Count 3 is therefore reversed.5 Given this ruling,

we need not address Sexton-Johnson’s claim that her conviction on Count 3 was void

ab initio.


       5
        While our decision renders moot any sentencing issues with regard to Count
3, we point out that the 12-month sentence imposed by the trial court was improper
as the statute provides that the maximum fine for a violation shall not exceed $200.
See OCGA § 40-6-253 (c). See also Brogdon v. State, 299 Ga. App. 547, 552-553 (2)
(683 SE2d 99) (2009); Chastain v. State, 231 Ga. App. 225, 227-228 (4) (498 SE2d
792) (1998).

                                          17
      4. Although Sexton-Johnson’s conviction on Count 3 is reversed, the State may

retry her without violating the Double Jeopardy Clause. See, e.g., Lee v. United

States, 432 U. S. 23, 33 (II) (C) (97 SCt 2141, 53 LE2d 80) (1977); Conley v. State,

85 Ga. 348 (1) (11 SE 659) (1890). Accordingly, we must address Sexton-Johnson’s

claim that the evidence was insufficient to sustain her open container conviction. In

this regard, she argues that in order to prove that she unlawfully possessed an open

container of alcohol while operating a vehicle, the State was required to show more

than mere spatial proximity to the open containers; the State also was required to

show that she had knowledge of the presence of open containers in the vehicle. We

disagree.

      As set out above, OCGA § 40-6-253 (b) (1) prohibits the possession of any

open alcoholic beverage container in the passenger area of any motor vehicle which

is on the roadway or shoulder of a public highway. “The traffic offenses defined in

Chapter 6’s Rules of the Road are ‘strict liability’ offenses, meaning that they can be

committed without a culpable mental state.” State v. Ogilvie, 292 Ga. 6, 8 (2) (a) (734

SE2d 50) (2012). See also Queen v. State, 189 Ga. App. 161, 163 (1) (c) (375 SE2d

287) (1988) (explaining that certain “‘strict criminal liability’ motor vehicle safety

statutes . . . can be violated . . . without a showing of mens rea or guilty knowledge

                                          18
on the part of the violator[;] although it must be shown that the defendant committed

the acts or omissions for which he is being held responsible, the requirement of

proving mental fault or mens rea is dispensed with”) (citation omitted; emphasis in

original). We conclude that the jury was authorized to find Sexton-Johnson guilty

beyond a reasonable doubt of violation of the open container law based upon

evidence of the odor of alcohol emanating from the vehicle, Officer Hall’s testimony

that Sexton-Johnson told him that she had just picked up her passengers from a party

and that both of them were intoxicated, the presence of two bottles of alcohol, both

with their seals broken and the contents partially removed, and Officer Bezon’s

testimony that he located the bottles wedged under the front-passenger seat within

arm’s reach of Sexton-Johnson. See OCGA § 40-6-253 (a) (2). See, e.g., Firsanov v.

State, 270 Ga. 873, 874 (1) (513 SE2d 184) (1999).

      Judgment affirmed in part and reversed in part. Barnes, P. J., and Mercier, J.,

concur.




                                         19
