                              FIRST DIVISION
                               DOYLE, C. J.,
                          ANDREWS, P. J., and RAY, 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


                                                                        May 6, 2016




In the Court of Appeals of Georgia
 A16A0177. GORDON v. THE STATE.                                               DO-006 C

      DOYLE, Chief Judge.

      Following a bench trial, Sherome Gordon was convicted of possession of

cocaine,1 aggravated assault,2 felony obstruction of a police officer,3 and

misdemeanor obstruction of a police officer.4 Gordon appeals from the denial of his

motion for new trial, contending that the trial court erred by (1) sentencing him for

aggravated assault in violation of the rule of lenity, and (2) failing to merge his




      1
          OCGA § 16-13-30 (a).
      2
          OCGA § 16-5-21 (b) (2).
      3
          OCGA § 16-10-24 (b).
      4
          OCGA § 16-10-24 (a).
convictions for aggravated assault and felony obstruction. For the reasons that follow,

we affirm.

      Construed in favor of the verdict,5 the record shows that an officer stopped a

vehicle because its brake lights were not functioning. As he spoke to the driver,

Gordon, the officer smelled alcohol on Gordon’s breath and observed a beer bottle

in plain view in the back seat. The officer inquired about the bottle, and Gordon

responded “oh, Lord,” and handed the officer the bottle, which was partially full of

beer. The officer elected to arrest Gordon for an open container violation and asked

Gordon to exit the vehicle, which he did. As the officer attempted to handcuff

Gordon, Gordon forcefully attempted to flee, and a struggle ensued. As the officer

held Gordon’s neck, Gordon attempted to burn the officer’s eye with a lit cigarette.

The officer blocked the attempt, and the two fell to the ground, grappling in a

stalemate until a group of young men from a nearby fraternity house assisted the

officer in subduing Gordon. Ultimately, after deploying a taser, the officer was able

to successfully handcuff Gordon. The officer then searched Gordon and found

cocaine.



      5
          See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

                                          2
      Gordon was charged with possession of cocaine, aggravated assault, felony

obstruction of an officer, misdemeanor obstruction of an officer, obstructing the

highway, possession of an open container of alcoholic beverage while operating a

vehicle, and driving with no working brake lights. Gordon pleaded guilty to the

cocaine charge, and the State nolle prossed the charges for obstructing the highway,

having an open container, and having no working brake lights. Following a bench

trial, Gordon was found guilty of aggravated assault and both obstruction charges.

The trial court sentenced Gordon to serve ten years on the cocaine charge consecutive

to ten years on the aggravated assault charge, with five-year and twelve-month

concurrent sentences on the felony and misdemeanor obstruction charges. Gordon

unsuccessfully challenged his sentences in a motion for new trial, giving rise to this

appeal.

      1. Gordon contends that the rule of lenity requires that he can only be

sentenced for felony obstruction of an officer (and not aggravated assault) because

the evidence shows that both offenses served as alternative charges for the same

conduct. We disagree.




                                          3
      As this Court recently recounted in Gordon v. State,6 a whole-court case

decided after the briefing in this case,

      the rule of lenity finds its roots in the vagueness doctrine, which requires
      fair warning as to what conduct is proscribed. The rule of lenity, more
      specifically, ensures that if and when an ambiguity exists in one or more
      statutes, such that the law exacts varying degrees of punishment for the
      same offense, the ambiguity will be resolved in favor of a defendant,
      who will then receive the lesser punishment. But if after applying the
      traditional canons of statutory construction the relevant text remains
      unambiguous, the rule of lenity will not apply. The fundamental inquiry
      when making this assessment, then, is whether the identical conduct
      would support a conviction under either of two crimes with differing
      penalties, i.e., whether the statutes define the same offense such that an
      ambiguity is created by different punishments being set forth for the
      same crime.


             In explaining the appropriate analysis to apply in making this
      assessment, however, the Supreme Court of Georgia has cautioned that
      simply because a single act may, as a factual matter, violate more than
      one penal statute does not implicate the rule of lenity. By way of
      example, . . . [we note that] depending upon attendant circumstances, it
      is possible for the act of striking another person with an object to meet
      the definitions of each of the crimes of: simple battery, OCGA §


      6
       334 Ga. App. 633 (780 SE2d 376) (2015) (whole court). The defendant in that
case was Kyle Lee Gordon, not Sherome Gordon.

                                           4
      16-5-23, a misdemeanor; aggravated battery, OCGA § 16-5-24, a felony;
      simple assault, OCGA § 16-5-20, a misdemeanor; aggravated assault,
      OCGA § 16-5-21, a felony; and malice murder, OCGA § 16-5-1, a
      felony. In the foregoing circumstance, a defendant could be prosecuted
      for multiple crimes. But when a defendant is prosecuted for and [found
      guilty] of multiple crimes based upon a single act, the injustice that must
      be avoided is sentencing the defendant for more than one crime
      following [a guilty verdict for] multiple crimes based upon the same
      act.7


Therefore, to decide whether the rule of lenity applies, we look to whether there is

any ambiguity in the two statutes such that “both crimes could be proved with the

same evidence.”8

      Here, Gordon was accused of aggravated assault and felony obstruction of an

officer. The aggravated assault statute provides, in relevant part: “A person commits




      7
         (Footnotes and punctuation omitted; emphasis supplied.) Id. at 634-635,
citing United States v. Lanier, 520 U. S. 259, 266 (II) (117 SCt 1219, 137 LE2d 432)
(1997) (“[A]s a sort of ‘junior version of the vagueness doctrine,’ . . . the canon of
strict construction of criminal statutes, or rule of lenity, ensures fair warning by so
resolving ambiguity in a criminal statute as to apply it only to conduct clearly
covered.”) (citation omitted)); McNair v. State, 293 Ga. 282, 283 (745 SE2d 646)
(2013); Banta v. State, 281 Ga. 615, 617-618 (2) (642 SE2d 51) (2007).
      8
        (Punctuation omitted.) Gordon, 334 Ga. App. at 637, quoting Quaweay v.
State, 274 Ga. App. 657, 658 (618 SE2d 707) (2005).

                                          5
the offense of aggravated assault when he or she assaults9 . . . with any object, device,

or instrument which, when used offensively against a person, is likely to or actually

does result in serious bodily injury.”10 Likewise, a person commits felony obstruction

when he “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 person of such officer or legally authorized person . . . .”11

      Based on these two statutory provisions, Gordon’s indictment accused him of

committing aggravated assault and felony obstruction in the following ways:

      Count 2


      And the grand jurors . . . further charge and accuse . . . Gordon with
      having committed the offense of AGGRAVATED ASSAULT, for that
      . . . Gordon did . . . make an assault upon the person of Deputy Mark
      Guarino, with an object, device or instrument which, when used
      offensively against a person, is likely to or actually does result in serious
      bodily injury to wit: a lit cigarette by attempting to insert the lit cigarette


      9
        “A person commits the offense of simple assault when he or she either: (1)
Attempts to commit a violent injury to the person of another; or (2) Commits an act
which places another in reasonable apprehension of immediately receiving a violent
injury.” OCGA § 16-5-20.
      10
           OCGA § 16-5-21 (b).
      11
           OCGA § 16-10-24 (b).

                                            6
      into the deputy’s eye during arrest, contrary to the laws of this state . .
      ..


      Count 3


      And the grand jurors . . . further charge and accuse . . . Gordon with
      having committed the offense of OBSTRUCTION OF AN OFFICER,
      for that . . . Gordon did . . . knowingly and willfully resist Deputy Mark
      Guarino, a law enforcement officer in the lawful discharge of his official
      duties by doing violence to such officer by . . . attempting to insert a lit
      cigarette into the deputy’s eye during lawful arrest, contrary to the laws
      of this state . . . .12


      A close reading of the indictment and the applicable Code sections reveals that

the two counts do not address the same criminal conduct, even though the indictment

predicated both offenses on the same act of attempting to insert a lit cigarette into the

eye of the deputy. Under the indictment and the statutory definitions, Gordon could

commit felony obstruction only if he offered violence against an officer while the

officer was in the lawful discharge of his official duties.13 Moreover, felony

      12
           (Emphasis supplied.)
      13
        See, e.g., Land v. State, 259 Ga. App. 860, 863 (2) (2003) (“An essential
element of the offense of obstruction of an officer is that the State prove beyond a
reasonable doubt that the obstruction occurred while the officer was in the lawful
discharge of his official duties.”) (punctuation omitted).

                                           7
obstruction can occur regardless of whether it involved the use of an offensive

weapon likely to result in serious bodily injury, unlike aggravated assault.14 Thus, the

two offenses, as described in the indictment and the Code, are not proved by the same

evidence, and the rule of lenity does not apply.15

      If we were to hold otherwise, any defendant who wrestles a gun away from an

officer and murders him could only be punished for felony obstruction, which carries

a maximum sentence of five years, as opposed to a sentence of death or life

imprisonment for murder.16 We decline to hold that this is what the legislature

intended when it defined the offenses. Simply because “a single act may, as a factual

matter, violate more than one penal statute does not implicate the rule of lenity.”17




      14
          See Banta, 281 Ga. at 618 (2) (misdemeanor obstruction under OCGA §
16-10-24 (a) is distinct from making a false statement to a government agency under
OCGA § 16-10-20 even though the act of lying to an officer could satisfy both
statutory definitions). See also Chynoweth v. State, 331 Ga. App. 123, 126 (2) (768
SE2d 536) (2015) (finding that the rule of lenity was not implicated by convictions
for riot in a penal institution and felony obstruction).
      15
           See Banta, 281 Ga. at 618 (2).
      16
           See OCGA §§ 16-5-1 (e) (1); 16-10-24 (b).
      17
           Banta, 281 Ga. at 618 (2).

                                            8
What is required is a statutory ambiguity such that identical evidence, not merely a

single act, results in different punishments.18 We do not have that scenario here.

      2. Gordon also contends that the trial court erred by sentencing him for both

aggravated assault and felony obstruction because they should have merged as a

matter of fact. We disagree.

              When a defendant is convicted of multiple crimes based upon the
      same act, the principle of factual merger operates to avoid the injustice
      [of multiple sentences for the same offense]. In Drinkard v. [Walker],19
      [the] Supreme Court of Georgia adopted the “required evidence” test set
      forth by the Supreme Court of the United States to resolve these
      situations. Thus, to determine whether convictions for multiple crimes
      merge for purposes of sentencing, the applicable rule is that where the
      same act or transaction constitutes a violation of two distinct statutory
      provisions, the test to be applied to determine whether there are two
      offenses or only one, is whether each [statutory] provision requires proof
      of a fact which the other does not.20


      18
         See, e.g., Dawkins v. State, 278 Ga. App. 343, 345 (629 SE2d 45) (2006)
(recognizing that it is not possible to give a false name to a police officer in violation
of OCGA § 16-10-25 (a misdemeanor) without also making a false statement in
violation of OCGA § 16-10-20 (a felony)).
      19
           281 Ga. 211 (636 SE2d 530) (2006).
      20
       (Footnotes and punctuation omitted.) Gordon, 334 Ga. App. at 636, quoting
Drinkard, 281 Ga. at 215, and citing Blockburger v. United States, 284 U. S. 299 (52
SCt 180, 76 LE 306) (1932). See also Cordero v. State, 296 Ga. 703, 710 (3) (770

                                            9
“The test focuses on the evidence required to establish the statutory elements of each

criminal offense, not the actual evidence presented at trial.”21

      Here, a review of the statutory elements of felony obstruction and aggravated

assault demonstrates that they are two separate offenses. As stated in Division 1, to

commit felony obstruction, one must obstruct or resist by offering or doing violence

to a law enforcement officer who is engaged in the lawful discharge of his official

duties.22 Having such a law enforcement victim is not an element of aggravated

assault, which requires as an additional element the use of “any object, device, or

instrument which, when used offensively against a person, is likely to or actually does

result in serious bodily injury.”23 Although the felony obstruction statute requires

offering or using “violence,” regardless of whether a weapon is used, it does not, by


SE2d 577) (2015) (“In Drinkard v. Walker, we adopted the “required evidence” test
for determining when one crime is “included in” another under OCGA § 16-1-6 (1)
and therefore merges as a matter of fact,” pursuant to OCGA § 16-1-7 (a) (1))
(citation and punctuation omitted).
      21
           Nolley v. State, __ Ga. App. __ (2) (Case No. A15A1686; decided Feb. 2,
2016).
      22
           See OCGA § 16-10-24 (b).
      23
        OCGA § 16-5-21 (b). We note that aggravated assault may occur in other
ways not at issue here: intent to murder, to rape, or to rob; use of an object to
strangulate; or discharging a firearm from within a vehicle. See id.

                                          10
its plain terms, require that this violence be the type that likely will or actually does

result in serious bodily injury. We recognize that in certain cases the use of fists, for

example, can suffice as a weapon for purposes of aggravated assault. But felony

obstruction can encompass other conduct, such as verbal threats to kill24 or slapping,

that can occur without the use of an object as a weapon that is likely to or actually

does result in serious bodily injury. It is of no moment that the violence offered in this

case – attempting to burn the officer’s eye with a cigarette – also satisfies the

elements of aggravated assault. Under Drinkard, the relevant inquiry focuses on the

elements of the offenses, and even though both offenses result from the same act,

each offense required proof of an additional element that the other did not.25

Accordingly, the trial court did not err by failing to merge the convictions for

aggravated assault and felony obstruction.

      We note that Gordon relies on Taylor v. State,26 which addressed a scenario

involving a defendant charged with aggravated assault upon a peace officer and


      24
           See Steillman v. State, 295 Ga. App. 778, 781 (2) (673 SE2d 286) (2009).
      25
        See Drinkard, 281 Ga. at 217 (explaining how different crimes with
overlapping elements do not merge even when crimes occurred by a single act by the
defendant), citing Sanford v. State, 169 Ga. App. 769 (315 SE2d 281) (1984).
      26
           327 Ga. App. 882 (761 SE2d 426) (2014).

                                           11
felony obstruction based on “fighting” the officer.27 Relying on Dobbs v. State,28 the

Court concluded that the two offenses should have merged because they encompassed

the same crimes.29 Nevertheless, in both Dobbs and Taylor, the offense of aggravated

assault upon a peace officer contained the additional element that the assault was

“upon a peace officer while the peace officer is engaged in, or on account of the

performance of, his or her official duties,”30 which is not the case here. Therefore,

because the aggravated assault offense at issue in this case does not contain that

element, the obstruction charge did contain an element not in the aggravated assault

charge, and the two do not merge under the Drinkard analysis.

      Judgment affirmed. Andrews, P. J. and Ray, J., concur.




      27
       See id. at 887-888 (5), citing Dobbs v. State, 302 Ga. App. 628, 630 (2) (691
SE2d 387) (2010).
      28
           302 Ga. App. at 628.
      29
           See id.
      30
        OCGA § 16-5-21 (b) (2), (d). See Taylor, 327 Ga. App. at 888 (5); Dobbs,
302 Ga. App. at 630 (2).

                                         12
