As such, the trafficking count in the indictment alleges a crime separate and distinct from the pan- dering count such that the rule of lenity does not apply. Koroma, 350 Ga. App. at 532-533 (2), 827 S.E.2d 903 (rule of lenity did not apply where the indictment did not predicate the three offenses on the same conduct or act; rather, each offense, as charged, was predicated on a separate sexual act); see also Gordon v. State, 337 Ga. App. 64, 68 (1), 785 S.E.2d 900 (2016) (the two offenses of aggravated assault and felony obstruction, as described in the indictment and the Code, were not proved by the same evidence, and thus the rule of lenity did not apply); White v. State, 319 Ga. App. 530, 532-533 (2), 737 S.E.2d 324 (2013) (the crimes of cruelty to children in the second degree and third degree, as alleged in the indictment, could not be proven by the same evidence, and thus the rule of lenity did not apply); compare Gordon v. State, 334 Ga. App. 633, 641, 780 S.E.2d 376 (2015) (where the two statutes at issue for making a false statement provided different punishment ranges for the same criminal conduct, rule of lenity applied). Accordingly, the trial court erred by applying the rule of lenity to these charges.

Trial counsel therefore did not provide deficient performance for meritlessly failing to object on this basis.Gordon v. State, 337 Ga. App. 64, 68 (1), 785 S.E.2d 900 (2016).See Austin, 356 Ga. App. at 847 (3), 849 S.E.2d 689 (noting that the application of the rule of lenity in one case does not necessarily mean that another defendant convicted of the same offense will be entitled to the rule of lenity).

" (Citation, punctuation, and emphasis omitted.) Gordon v. State , 337 Ga. App. 64, 66, 68 (1), 785 S.E.2d 900 (2016). Judgment affirmed in part and vacated in part and case remanded with direction.

"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." Gordon v. State , 337 Ga. App. 64, 66 (1), 785 S.E.2d 900 (2016) (citations and punctuation omitted). However,

The record clearly shows that the crime of obstruction was established by proof of the same or less than all the facts required to establish the crime of aggravated assault on a peace officer. See Taylor v. State , 327 Ga.App. 882, 888 (5) (a), 761 S.E.2d 426 (2014) (obstruction of a peace officer was established by proof of the same or less than all the facts required to prove aggravated assault on a peace officer and therefore the two offenses merged); compare Gordon v. State , 337 Ga.App. 64, 69–70(2), 785 S.E.2d 900 (2016) (conviction for aggravated assault did not require proof that 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;" therefore it did not merge with obstruction of a peace officer conviction) (citations omitted). Consequently, Reid's convictions for aggravated assault on a peace officer and felony obstruction of a peace officer as to Officer Brock should have merged.

(Footnotes and punctuation omitted.) Gordon v. State , 337 Ga. App. 64, 68–69 (2), 785 S.E.2d 900 (2016), quoting Nolley v. State , 335 Ga.App. 539, 782 S.E.2d 446 (2016), Gordon , 334 Ga.App. 633, 636, 780 S.E.2d 376 (2015), quoting Drinkard , 281 Ga. at 215, 636 S.E.2d 530, and citing Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See also OCGA § 16–1–6 (1).

The jury acquitted her of possession of marijuana. Construed in favor of the verdict, see Gordon v. State , 337 Ga. App. 64, 785 S.E.2d 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.