                              FIRST DIVISION
                               BARNES, P. J.,
                         MCMILLIAN and MERCIER, 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


                                                                    March 29, 2017




In the Court of Appeals of Georgia
 A17A0461. DOUGHERTY v. THE STATE.

      BARNES, Presiding Judge.

      Following a bench trial, the trial court found Preston Wayne Dougherty guilty

of two counts of misdemeanor obstruction of a law enforcement officer based on

Dougherty’s resistance to two officers who were attempting to arrest him. Dougherty

now appeals, contending that there was insufficient evidence that he obstructed the

officers while they were acting in the lawful discharge of their official duties. Upon

our review, we affirm.

      Construed in the light most favorable to the verdict, see Bray v. State, 330 Ga.

App. 768, 771 (1) (768 SE2d 285) (2015), the evidence showed that at approximately

8:00 p.m. on March 19, 2016, a patrol officer with the Floyd County Police

Department was turning onto Chulio Road when he was dispatched to an area of that

road where someone was reportedly attempting to break into vehicles. It was still
light outside when the officer received the call from the 911 dispatcher. As the officer

drove by the area of the road where he had been dispatched, he passed by a man, later

identified as Dougherty, walking down the side of the road. The officer saw no one

else in the area.

       The officer decided to speak with Dougherty in light of the reported attempted

car break-ins in that area of the road. The officer turned around his patrol car,

activated his blue lights for safety reasons due to the traffic conditions, and parked

his car on the road. After exiting his patrol car, the officer approached Dougherty,

who continued walking down the opposite side of the road, and said, “Howdy, hey

how are you doing sir?” According to the officer, Dougherty acted “completely

weird” and “was not making sense” when the officer approached him and tried to

speak with him, causing the officer to be concerned for his own and Dougherty’s

safety while standing on the road.

       After briefly speaking with and observing Dougherty, the officer asked

Dougherty to take his hands out of his pockets and then to come over in front of his

patrol car away from traffic. The officer testified that Dougherty took his hands out

of his pockets, but then kept “patting down his pockets[,] trying to continue to put his

hands back in his pockets.” The officer also testified that Dougherty would say

                                           2
“okay” in response to the officer’s requests for him to move out of the lane of traffic

and come stand in front of the patrol car, but then would start walking down the road

away from the officer. Dougherty also insisted that he was “fine,” but then asked the

officer if he could take him home.

      After initially continuing to walk down the road, Dougherty followed the

officer over to the front of the patrol car and stood there with his hands out of his

pockets. Dougherty told the officer his name, but when the officer inquired where he

lived, Dougherty responded “right up here” and could not give an address. The officer

asked Dougherty for identification and tried to continue questioning Dougherty, but

Dougherty was unresponsive to many of his questions, tried to put his hands back in

his pockets, and again tried to walk away from the officer while saying “okay.”

      The officer had Dougherty lean against the bar on the front of his patrol car and

conducted a pat-down search for weapons, and Dougherty consented to a search of

his pockets. When the officer searched one of Dougherty’s pockets, he felt a needle.

When the officer felt the needle, Dougherty took one of his hands off of the police car

and swung it in the air while saying “I’m sorry.” The officer attempted to place

Dougherty’s arm behind his back to handcuff and arrest him, but Dougherty tried to



                                          3
pull his arm away from the officer, and a struggle ensued during which the officer

attempted to take Dougherty to the ground and subdue him.

        The officer repeatedly ordered Dougherty to stop resisting and to put his hands

behind his back so that he could be handcuffed, but Dougherty did not follow the

commands even while saying “okay” several more times. The officer tried to

physically subdue Dougherty, but Dougherty continued struggling with the officer

and, according to the officer, did not appear to feel any pain. During the struggle, the

officer’s body camera fell off, and Dougherty grabbed it and held it tightly in his

hand.

        A second patrol officer arrived on the scene and deployed his taser on

Dougherty when he would not stop resisting the officers, but Dougherty continued

to disobey both officers’ commands to put his hands behind his back so that he could

be handcuffed. The officers ultimately were able to subdue Dougherty and handcuff

him, but only after deploying the taser a second time.

        Dougherty was indicted on two charges of felony obstruction of a law

enforcement officer and one count of battery. Dougherty elected to be tried in a bench

trial, where the patrol officer who first responded to the scene (the “first officer”)



                                           4
testified to his encounter with Dougherty as summarized above. The second patrol

officer who arrived on the scene did not testify.

      The State also introduced into evidence and played for the trial court an audio-

video recording from a camera mounted in the front of the first officer’s patrol car

(the “dash-cam recording”). The first officer’s initial interaction with Dougherty on

the road was captured only on the audio portion of the dash-cam recording, and some

of Dougherty’s verbal responses to the officer are difficult to hear on it. The police

encounter with Dougherty from the point when he stepped in front of the first

officer’s patrol car until he was subdued and arrested was captured on both the video

and audio portion of the dash-cam recording.

      Following the first officer’s testimony and the playing of the dash-cam

recording, the State rested. Dougherty elected not to testify or call any defense

witnesses.

      After hearing the first officer’s testimony and reviewing the dash-cam

recording, the trial court acquitted Dougherty of felony obstruction and battery, but

found him guilty of two counts of the lesser included offense of misdemeanor

obstruction of a law enforcement officer. The trial court found that when the first

officer initially approached Dougherty on the road, it was a first-tier consensual

                                          5
encounter for Fourth Amendment purposes, but that the officer escalated the

encounter to a second-tier investigatory detention “very fast.” The trial court further

found that “at that point there was clearly something wrong with Mr. Dougherty” and

that, consequently, the first officer had reasonable suspicion, and was acting in the

lawful discharge of his official duties, in initially detaining Dougherty for “at least,

if nothing else, [being] a pedestrian under the influence of something.” According to

the trial court, “[a] person that’s walking down Chulio Road in that kind of shape is

either going to get [him]self killed or someone else.” The trial court further found that

Dougherty unlawfully resisted both officers’ subsequent efforts to handcuff and arrest

him after his initial detention, “given his state of inebriation of whatever it was he

was under the influence of,” and that his resistance to his arrest supported his

convictions for misdemeanor obstruction.

      Dougherty now appeals, contending that there was insufficient evidence to

convict him of misdemeanor obstruction because the officers were not acting in the

lawful discharge of their official duties, thereby entitling him to resist his arrest. We

disagree.

             On appeal from a bench trial resulting in a criminal conviction, we
      view all evidence in the light most favorable to the trial court’s verdict,


                                           6
      and the defendant no longer enjoys the presumption of innocence. We
      do not re-weigh testimony, determine witness credibility, or address
      assertions of conflicting evidence; our role is to determine whether the
      evidence presented is sufficient for a rational trier of fact to find guilt
      beyond a reasonable doubt.


(Citation and punctuation omitted.) Bray, 330 Ga. App. at 771-772 (1).1

      Mindful of the standard of review, we turn to Georgia law pertaining to

misdemeanor obstruction. OCGA § 16-10-24 (a) provides in relevant part that “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.” Proof that

an officer was acting in the lawful discharge of his official duties thus is an essential

statutory element of the offense. West v. State, 296 Ga. App. 58, 60 (2) (673 SE2d

558) (2009); Overand v. State, 240 Ga. App. 682, 682-683 (1) (523 SE2d 610)

(1999).




      1
        We conduct a de novo review of factual findings when the controlling facts
are clearly and completely discernible from a video recording. Capellan v. State, 316
Ga. App. 467, 467 (729 SE2d 602) (2012). But where, as here, some of the
controlling facts are not fully captured in the recording, we defer to the trial court’s
findings regarding those facts. See State v. Chulpayev, 296 Ga. 764, 771 (2), n. 5 (770
SE2d 808) (2015); State v. Hall, 339 Ga. App. 237, 244-245 (793 SE2d 522) (2016).

                                           7
      Whether an officer was acting in the lawful discharge of his official duties

often turns on the type of encounter between the officer and a citizen. Under the

Fourth Amendment to the United States Constitution, there are three tiers of police-

citizen encounters:

      First-tier encounters are consensual communications between police and
      citizens and involve no coercion or detention; second-tier encounters,
      which must be supported by reasonable suspicion, are brief stops done
      for the purpose of investigating suspected criminal activity; and
      third-tier encounters are actual or de facto arrests and, accordingly, must
      be supported by probable cause.


(Citation and footnote omitted.) Thomas v. State, 301 Ga. App. 198, 200 (1) (687

SE2d 203) (2009). “A police officer is not discharging his lawful duty when he arrests

an individual without reasonable or probable cause,”or when he conducts a brief

investigatory detention of an individual “without a particularized and objective basis

for suspecting criminal activity.” (Citations and punctuation omitted.) In the Interest

of J. T., 239 Ga. App. 756, 759 (521 SE2d 862) (1999). See Curtis v. State, 285 Ga.

App. 298, 300 (1) (a) (645 SE2d 705) (2007); Wynn v. State, 236 Ga. App. 98, 99 (2)

(511 SE2d 201) (1999).




                                          8
      In his brief on appeal, Dougherty argues that the first officer immediately

escalated their encounter to a second-tier investigatory detention when he activated

his blue lights, exited the patrol car, and required Dougherty to remove his hands

from his pockets and stand in front of the patrol car. According to Dougherty, the

officer lacked reasonable suspicion to detain him at that point because the officer was

relying on a vague 911 dispatch that someone had been trying to break into cars in the

area, and Dougherty at most exhibited “furtive” behavior when initially approached

by the officer. Dougherty further maintains that because the first officer initially

detained him without reasonable suspicion of any criminal activity, the officer was

not acting in the lawful discharge of his official duties from that point onward,

rendering unlawful the officers’ subsequent efforts to handcuff and arrest him.

Consequently, Dougherty contends that he was entitled to resist his detention “from

the beginning” and to continue resisting throughout the police encounter, including

when both officers sought to handcuff and arrest him. We are unpersuaded.

      As an initial matter, we conclude that there was evidence supporting the trial

court’s determination that there was some interaction between Dougherty and the first

officer on the road, albeit very brief, before the officer escalated the encounter to a

second-tier investigatory detention. It is well-established that “‘a seizure does not

                                          9
occur simply because a police officer approaches an individual and asks a few

questions.’” State v. Westmoreland, 204 Ga. App. 312, 313 (1) (418 SE2d 822)

(1992), quoting Florida v. Bostick, 501 U.S. 429, 434 (II) (111 SCt 2382, 115 LE2d

389) (1991). Rather, an encounter escalates from a first-tier consensual interaction to

a second-tier investigatory detention only when the individual is “seized” by the

officer, i.e., “‘[o]nly when the officer, by means of physical force or show of

authority, has in some way restrained the liberty’” of the individual. State v. Walker,

295 Ga. 888, 890 (764 SE2d 804) (2014), quoting Terry v. Ohio, 392 U.S. 1, 19 (II),

n. 16 (88 SCt 1868, 20 LE2d 889) (1968).

      In the present case, the audio captured on the dash-cam recording reflects that

the first officer spoke briefly with Dougherty before having Dougherty remove his

hands from his pockets and stand in front of the patrol car. Thus, there was evidence

of a short gap in time between when the officer initially observed and interacted with

Dougherty and when the officer escalated the encounter to a second-tier investigatory

detention. See Durden v. State, 320 Ga. App. 218, 220 (1) (739 SE2d 676) (2013)

(encounter escalated to second-tier investigatory detention when suspect stopped and

removed hands from his pockets at the officer’s command); Walker v. State, 299 Ga.

App. 788, 790 (1) (683 SE2d 867) (2009) (encounter became second-tier

                                          10
investigatory detention when suspect came back and sat on pavement at the officer’s

direction).2 The operative question, therefore, is whether there was at least some

evidence that the officer had reasonable suspicion to quickly escalate the encounter

to an investigatory detention based on his brief, initial observation and interaction

with Dougherty on the roadway. Construing the evidence in the light most favorable

to the trial court’s ruling, we answer that question in the affirmative.

      To meet the reasonable suspicion standard for conducting a second-tier

investigatory detention, “the police must have, under the totality of the circumstances,

a particularized and objective basis for suspecting [that a] person is involved in

criminal activity.” (Citation and punctuation omitted.) Walker v. State, 314 Ga. App.

67, 70 (1) (722 SE2d 887) (2012). “This suspicion need not meet the standard of

probable cause, but must be more than mere caprice or a hunch or an inclination. A


      2
        Before approaching Dougherty on foot and speaking with him, the first officer
parked his patrol car in the opposite lane of traffic with the blue lights activated. The
officer testified that he activated the blue lights “for safety reasons” because of the
“heavy traffic,” and that Dougherty continued walking down the road at that point.
In light of the officer’s testimony, the trial court was entitled to find that the
activation of the blue lights on the patrol car did not, standing alone, escalate the
interaction to a second-tier investigatory detention. See Cash v. State, 337 Ga. App.
511, 514-515 (2) (786 SE2d 560) (2016); Darwicki v. State, 291 Ga. App. 239, 240
(1) (661 SE2d 859) (2008).


                                           11
founded suspicion is all that is necessary, some basis from which the court can

determine that the detention was not arbitrary or harassing.” (Citation and

punctuation omitted.) Gonzalez v. State, 334 Ga. App. 706, 711 (2) (780 SE2d 383)

(2015). “[T]he determination of reasonable suspicion must be based on commonsense

judgments and inferences about human behavior” rather than on scientific certainty.

Illinois v. Wardlow, 528 U.S. 119, 125 (120 SCt 673, 145 LE2d 570) (2000).

      Pretermitting whether the first officer had reasonable suspicion based on the

information supplied by the 911 dispatcher about the attempted car break-ins in the

area, we conclude that there was evidence that the officer had reasonable suspicion,

based on his initial observation and interaction with Dougherty, to believe that

Dougherty was a pedestrian under the influence and to detain him on that ground. The

trial court found that Dougherty “clearly” was “a pedestrian under the influence of

something” and in a “state of inebriation” while walking down the road, and the dash-

cam recording supports the trial court’s finding. The trial court’s finding was further

supported by the first officer’s testimony that when he first approached and tried to

speak with Dougherty as he was walking down the heavily traveled road at 8 p.m.,

Dougherty was acting “completely weird” and “was not making sense.”



                                          12
      “A person who is under the influence of intoxicating liquor or any drug to a

degree which renders him a hazard shall not walk or be upon any roadway or the

shoulder of any roadway.” OCGA § 40-6-95. In light of the officer’s testimony

combined with the dash-cam recording, there was evidence from which the trial court

could find that the officer, upon first interacting with Dougherty, developed

reasonable suspicion to believe that Dougherty was a pedestrian under the influence

and to quickly escalate the encounter to a second-tier detention on that basis. See

OCGA § 40-6-95; Mack v. State, 305 Ga. App. 697, 698 (1) (700 SE2d 685) (2010)

(officer had reasonable suspicion to believe that pedestrian who was about to walk

down the street was under the influence of alcohol and to detain him on that ground);

Zeeman v. State, 249 Ga. App. 625, 627-628 (1) (549 SE2d 442) (2001) (even if

officers lacked reasonable suspicion to detain the defendant for involvement in a drug

transaction, officers could detain him on the basis that he appeared to be under the

influence and was about to drive).

      While the officer did not specifically testify that one of his reasons for

detaining Dougherty was his apparent intoxicated state while walking down the road,

an “officer’s subjective motivation is irrelevant” in determining whether reasonable

suspicion exists. (Citation, punctuation, and emphasis omitted.) Brigham City v.

                                         13
Stuart, 547 U.S. 398, 404 (II) (126 SCt 1943, 164 LE2d 650) (2006). Rather, the

detention is lawful “as long as the circumstances, viewed objectively,” support a

finding of reasonable suspicion, as was true in this case, based on Dougherty’s

demeanor, words, and conduct as described in the officer’s testimony and as shown

on the dash-cam recording. Id.

      For these reasons, the trial court was entitled to find that the first officer had

reasonable suspicion and was acting in the lawful discharge of his official duties in

escalating the encounter to a second-tier investigatory detention. Dougherty’s

argument that an illegal initial detention rendered the rest of his detention unlawful

and justified his continued resistance therefore is unpersuasive, and we affirm his

convictions for misdemeanor obstruction.

      Judgment affirmed. McMillian and Mercier, JJ., concur.




                                          14
