Fоllowing a trial by jury, Deon Tremane Ewumi was convicted of felony obstruction, simple battery, and possession of less than one ounce of marijuana. On appeal from these convictions, Ewumi argues that the trial court erred by (1) denying his motion to suppress, (2) denying his motion for new trial based on insufficient evidence as to each count, and (3) failing to instruct the jury regarding the right to resist an unlawful arrest. Because the trial court erred in denying Ewumi’s motion to suppress evidence based on an unlawful arrest and because the evidеnce is insufficient, we reverse his convictions.
Viewed in the light most favorable to the jury’s verdict, 1 the record shows that shortly after midnight on March 6, 2011, an officer was dispatched to an apartment complex in what was described as a high-crime area in Clayton County after shots were fired and a bullet entered a residence. Approximately 20 minutes later, the officer encountered 17-year-old Ewumi outside the relevant building while searching for shell casings on the ground. Ewumi was returning to his unit in the building after attending an event at school, and he was walking with a friend when he saw the officеr.
*657 Ewumi and his companion emerged from behind a nearby garage, and the officer observed that Ewumi’s head and hands were obscured by a hoodie (i.e., a hooded sweatshirt). The officer approached Ewumi and said that he wanted to ask some questions, but Ewumi did not stop and mumbled an inaudible response before walking away. Thereafter, the officer attempted to close the gap between himself and Ewumi, 2 and Ewumi began to run toward the building. He then ran upstairs to the second floor and tripped as he reachеd the top.
The officer pursued Ewumi and, immediately after the young man fell, climbed atop him and initiated an “arm-bar” technique to apply handcuffs. 3 Ewumi struggled against the officer to escape, kicking his legs about and throwing his elbows back and forth. Ewumi continued trying to climb toward his apartment, banging on the door and screaming for his mother. Meanwhile, the officer restrained one of his arms and gave verbal commands, but Ewumi continued to struggle. The officer called for backup, applied a taser directly to Ewumi’s body, and eventuаlly restrained and arrested him.
Upon arrival at the police station, an officer noticed that Ewumi was chewing something, which was determined to be a small amount of marijuana wrapped in paper. Thereafter, Ewumi was charged with and convicted of felony obstruction, 4 simple battery, 5 and possessing less than one ounce of marijuana. 6 This appeal follows.
1. Ewumi contends that the trial court erred by denying his motion to suppress evidence based on an unlawful stop and subsequent arrest. We agree.
At the outset, we note that in reviewing a trial court’s decision on a motion to suppress, “we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous.” 7 Moreover, because the trial court sits as the trier of fact, “its findings are analogous to a jury verdict and will *658 not be disturbed if any evidence supports them.” 8 Nevertheless, “we owe no deference to the way in which the court below resolved questions of law.” 9 And in conducting our review, “we may consider trial testimony in addition to the testimony submitted during the motion to suppress hearing.” 10 With these guiding prinсiples in mind, we turn now to an analysis of Ewumi’s argument that his arrest was unlawful.
The Supreme Court of the United States has construed the Fourth Amendment to the United States Constitution 11 so as to set forth three tiers of police-citizen encounters. 12 These encounters involve “(1) communication between police and citizens involving no coercion or detention..., (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.” 13
In a first-tier encounter, “policе may approach citizens, ask for identification, ask for consent to search, and otherwise freely 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.” 14 But it is well settled that “a citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter.” 15 Indeed, “[e] ven running from police during a first-tier encounter is wholly permissible.” 16 And an individual “may rеfuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint. . . ,” 17
In a second-tier encounter, even in the absence of probable cause, a police officer 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.” 18 But to do so, the officer must have “more than a subjective, unparticularized suspicion or hunch.” 19 Indeed, the officer’s action “must be justified by specific and *659 articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion . . . .” 20 Additionally, the officer “must have some basis from which the court can determine that the detention was neither arbitrary nor harassing.” 21
And here, Ewumi moved to suppress the evidence found as a result of his arrest because he argued that the arrest was unlawful. But after hearing testimony from both the arresting officer and Ewumi, the trial court denied the motion, finding that the initial contаct between the officer and Ewumi was a first-tier encounter; the officer’s testimony was more credible; Ewumi made furtive and evasive movements; Ewumi ran from the officer and ignored a command to stop; given the late hour, high-crime location, and ongoing investigation, the encounter elevated to a justified second tier when Ewumi began to flee; and all of these factors made the arrest and subsequent search lawful. We disagree.
Both the testimony at trial and at the motion-to-suppress hearing established the samе largely undisputed factual scenario: The officer approached Ewumi and indicated that he wished to speak with him; Ewumi muttered an inaudible reply and continued walking away; the officer approached Ewumi more quickly, asked him to come over, and Ewumi began to run toward his building; Ewumi ignored commands to stop; and a struggle ensued after Ewumi tripped on the stairway and after the officer attempted to handcuff and arrest him. Ewumi explained at both the motion-to-suppress hearing and at trial that he ignored the officer’s cоmmands because he “did nothing wrong” (although he admitted to not wanting the officer to discover the marijuana on his person), was merely trying to reach his home, and had not been informed that the officer was conducting an investigation.
Based on these facts, we agree with the trial court that the initial encounter between Ewumi and the officer — i.e., when the officer first approached Ewumi and indicated that he wished to speak with him — was a first-tier encounter. 22 Indeed, the State has not argued or attempted to show that the initial encounter was a second-tier such that the officer’s conduct was supported by reasonable, articulable suspicion. As such, Ewumi was unquestionably entitled to walk away *660 from same. 23
And the fact that Ewumi exercised his right to walk away from a first-tier encounter and avoid the officer did not give rise to reasonable, articulable suspicion to instigate a second-tier encounter, 24 which the officer did by quickening his approach toward Ewumi and indicating that compliance with the request might be compelled. 25 Indeed, thesе facts present a situation that is different from those in which we have held that flight from a first-tier encounter warranted a stop after the citizen voluntarily spoke with an officer, gave suspicious answers to questions, and then fled. 26
When the officer was asked why he continued to pursue Ewumi, he testified that he became suspicious when Ewumi appeared and began walking toward the building where gunshots were reported; thus, the officer wanted to identify Ewumi. And when pressed to describe what exactly was suspicious about Ewumi, the officer testified that it was after midnight in a high-crime area; Ewumi wore a hoodie that covered his head and obscured his hands in his pockets; he walked in a slumped position; and he stepped away from the officer upon the initial approach. The officer also testified that drugs and weapons are often found on individuals with whom officers make contact in that area, and opined that he continued to approach Ewumi because “[t]he fact that he started to walk away from me indicated that there was more to ... my contact than what I initially knew of.... [Ewumi] was avoiding me for a reason.” But the officer also admitted that Ewumi made no threatening gestures toward the officer upon being approached and did not act as though he had a weapon.
Even when considering the totality of the circumstances, these facts do not amount to an objective, articulable suspicion of criminal *661 activity to warrant a second-tier detention. 27 It is well established that “mere presence in an area of suspected crime is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” 28 Moreover, an officer’s feeling that a person is acting “in a suspicious way does not amount to a particularized and objective basis for suspecting him of criminal activity.” 29 And here, none of Ewumi’s described activities — walking away from the officer, ignoring the officer, being present in a high-crime area (and returning home from a school function), walking in a slumped position, and wearing a hooded sweatshirt in early March — are crimes in and of thеmselves, “nor are they enough to make an objective determination that [Ewumi] was about to be engaged in criminal activity.” 30 Additionally, the mere refusal to identify oneself to an officer is not a crime. 31
Furthermore, even if we assumed for the sake of argument that the officer obtained reasonable, articulable suspicion to conduct a second-tier stop after Ewumi began to run away, 32 this is not what ultimately occurred. Indeed, after Ewumi ran toward his building and fell on the stairway, it is undisputed that the officer immediately attempted an arrest solely on the basis of obstruction, 33 which required probable cause. 34 And in evaluating whether an individual’s arrest was cоnstitutionally valid and supported by probable cause, *662 we consider whether
at [the] moment [of arrest] the facts and circumstances within [the officer’s] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the person suspected had committed or was committing an offense. 35
Here, although Ewumi was ultimately arrested for battery after the incident on the stairway, the officer testified that he initially attempted to handcuff and arrest Ewumi for misdemeanor obstruction. And based upon the record, as discussed infra, the officer lacked probable cause to arrest for either alleged offense. 36
(a) As to obstruction, a person commits such an offense when he or she knowingly and wilfully “obstructs or hinders any law enforcement officer in the lawful discharge of his official duties” 37 or “resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer . . . .” 38
And in the case sub judice, the officer testified that he believed Ewumi committed this offense by hindering his investigation of shots fired and whether there were witnesses, a suspect, or evidence in the area. 39 But as we held supra, Ewumi acted within his rights by avoiding a first-tier encounter, and thus, the officer lacked probable cause to justify an arrest for obstruction. 40 Indeed, because Ewumi *663 had the right to leave the first-tier encounter,
his exercise of that right, even if accomplished by running, cannot constitute obstruction. That is to say, even though the officer [ ] [was] lawfully discharging [his] duties at the time [Ewumi] fled, those official duties during the first-tier encounter did not include detaining [Ewumi] or preventing him from leaving. 41
Additionally, the offiсer did not explain to Ewumi that he wished to speak with him as part of a pending investigation, instead only asking that Ewumi come over to answer some questions. 42 Therefore, by exercising his right to leave a first-tier encounter, as a matter of law, Ewumi did not hinder or obstruct the officer’s lawful discharge of his duties, and accordingly, the officer “had no probable cause to arrest for obstruction by flight when the flight was from a first-tier encounter that [Ewumi] had every right to terminate.” 43 Accordingly, the officer’s attempt to arrest Ewumi for obstruction was unlаwful because the officer lacked the requisite probable cause that Ewumi committed that offense. 44
(b) As to battery, the struggle between Ewumi and the officer began when the officer attempted the unjustified arrest for obstruction. 45 Thus, the officer lacked probable cause to arrest Ewumi for battery because the struggle ensued only after the officer attempted to arrest Ewumi for obstruction, and because that arrest was unlawful, Ewumi was justified in resisting the attempted arrest with all *664 force that was reasonably necessary to do so. 46 Indeed, a police officer “is not discharging his lawful duty when he arrests an individual without reasonаble or probable cause.” 47 Because “[i]f there is probable cause to believe a person committed a crime, if a crime is committed in the officer’s presence or within his knowledge, or if there is a likely failure of justice, an arrest without a warrant is authorized; otherwise it is not.” 48 Accordingly, under the facts of this case, Ewumi was unlawfully arrested for battery, 49 and the evidence discovered as a result of Ewumi’s unlawful arrest should have been suppressed at trial. 50
2. Ewumi also contends that the evidence of felony obstruction, simple battery, and possession of marijuana was insufficient to sustain his convictions. 51 We agree.
At the outset, we note that “[o]n appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” 52 And in conducting our review, “[w]e neither weigh the evidence nor judge the credibility of witnesses, but determine only whether ... a rational trier of fact could have found the essential elements of the crime beyond a rеasonable doubt.” 53
(a) Felony Obstruction. First, as to felony obstruction, because we held in Division 1 that the officer attempted an unlawful arrest for *665 misdemeanor obstruction, Ewumi’s attempt to resist that arrest cannot form the basis of a conviction for felony obstruction because the officer was not engaged in the lawful discharge of official duties. 54 Accordingly, that conviction must be reversed because the State failed to prove a necessary element of the offense. 55
(b) Simple Battery. As to Ewumi’s conviction for simple battery, it too must be reversed. Aperson commits this offense “when he or she either: (1) [i]ntentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) [intentionally causes physical harm to another.” 56 Although the offense is generally a misdemeanor, it becomes a misdemeanor of a high and aggravated nature under certain circumstances, such as when it is committed against a police officer engaged in carrying out official duties. 57 And as previously noted, Ewumi was indicted for this offense in that he “intentionally [made] physicаl contact of an insulting and provoking nature with [the officer], by hitting him with his elbows, and at the time of said offense, [the officer] was engaged in the performance of his official duties.”
First, as we held supra, the officer was not engaged in his official duties when the struggle with Ewumi ensued because, at that time, the officer was attempting to arrest Ewumi without probable cause. But in addition to this, the State also failed to prove the necessary element of contact because there was no testimony that Ewumi’s elbows actually mаde contact with the officer. 58
Ewumi testified in his own defense and denied elbowing (or kicking) the officer. But the officer testified that as he attempted the arm-bar technique on Ewumi, “he started kicking his legs and . . . throwing elbows back and forth, trying to wiggle free from my grip.” Later, he again repeated that Ewumi kicked at his legs and “appeared *666 to be throwing elbows behind him to break free” from the officer’s grip. Nevertheless, although the officer testified that Ewumi made contact by kicking the officer’s legs, which formed the basis of the felony obstruсtion charge, there was no evidence that Ewumi made contact with his elbows, which was the basis for the simple battery charge. Indeed, the State argued at sentencing that the convictions for felony obstruction and simple battery should not merge because, just as the indictment alleged, the convictions were based on different actions (i.e., kicking versus elbowing), thereby limiting the simple battery count to the allegation that Ewumi threw his elbows. 59 Accordingly, because the State failed to prove the necessary element of contact, Ewumi’s conviction for simple battery must be reversed. 60
(c) Possession of Marijuana. Finally, as to Ewumi’s conviction for possessing less than one ounce of marijuana, because the police discovered the marijuana as the result of an illegal arrest, this conviction must also be reversed. 61
3. Given our holdings in Divisions 1 and 2, we need not address Ewumi’s remaining enumeration of error.
Accordingly, for all the foregoing reasons, we reverse Ewumi’s convictions.
Judgment reversed.
Notes
See, e.g., Sidner v. State,
At some point, Ewumi’s unidentified сompanion left the scene.
At the motion-to-suppress hearing, the officer described this technique as follows: “To place the arm behind the back in... a manner so that the... small of the wrist is near the small of the back.”
See OCGA § 16-10-24 (b) (“Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer... in the lawful discharge of his official duties by offering or doing violence to the person of such officer ... is guilty of a felony. .. .”).
See OCGA § 16-5-23 (a) (“A person commits the offense of simple battery when he or she either: (1) [i]ntentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) [i]ntentionally causes physical harm to another.”).
See OCGA § 16-13-30 (j) (1) (“It is unlawful for any person to possess . . . marijuana.”).
In the Interest of J. B.,
Id. (punctuation omitted).
Brandt v. State,
Thompson v. State,
U. S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”).
See, e.g., In the Interest of J. B.,
Id. (punctuation omitted).
Id.
(punctuation omitted);
accord State v. Dukes,
Black v. State,
Id.
Celestin v. State,
Black,
Black,
Id. (punctuation omitted).
Id. (punctuation omitted).
See Dukes,
See Black,
See id. (“Because this was a first-tier encounter which [the individual] had every right to avoid, the State’s arguments that reasonable articulable suspicion existed are misplaced and incorrect.”).
See Dukes,
See McClary v. State,
See Brown v. State,
Crowley,
Celestin,
Brown, 301 Ga. App. at 85-86.
Wagner v. State,
See McClary,
See Dukes,
See id.
at 251 (hоlding, in case in which police pursued defendant after he fled from tier-one encounter, that “the controlling question presented by this appeal is whether the
*662
officers had probable cause to arrest [the defendant] for obstruction” and determining that officers did not);
see also Wardlow,
Hubbard v. State,
See Dukes,
OCGA § 16-10-24 (a) (misdemeanor obstruction).
OCGA§ 16-10-24 (b) (felony obstruction).
In this regard, the officer cited his attempt to make contact with Ewumi to obtain an identification, and the officer felt that Ewumi was obligated to comply when the officer commanded him to “come here a minute.” However, we note that Ewumi was ultimately indicted for felony obstruction, in that he “knowingly and willfully obstruct[ed] [the officer] in the lawful discharge of his official duties by doing violence to said offiсer by kicking his legs, causing visible injury.”
See Dukes,
Dukes,
Compare Sprinkles v. State,
Dukes,
See Wagner,
Ewumi was indicted for simрle battery in that he “intentionally [made] physical contact of an insulting and provoking nature with [the officer], by hitting him with his elbows, and at the time of said offense, [the officer] was engaged in the performance of his official duties.”
See Sidner,
Sidner,
Sidner,
Compare Strickland v. State,
See Dukes,
See Lackey v. State,
Sidner,
Id. (punctuation omitted).
See supra note 44.
See
OCGA § 16-10-24 (b);
see Curtis v. State,
See OCGA § 16-5-23 (a).
See OCGA § 16-5-23 (b) (providing for punishment as a misdemeanor); OCGA § 16-5-23 (e) (providing for higher degree of punishment when offense committed against members of law enforcement).
See Hancock v. State,
See Pearson v. State,
See Hancock,
See Celestin,