concurring specially.
I concur in the reversal because there is no evidence that a lawful arrest was in progress when the defendant resisted the officer. He was charged in the indictment with committing the felony of obstruction, OCGA § 16-10-24 (b), by “physically resisting a lawful arrest.”
Although it was within the officer’s duties to investigate a citizen complaint, of which there is evidence, there appears no basis for the escalation of that investigation to an arrest of defendant outside of his responsive resistance to that arrest. No evidence supplied the answer to the question, “What was he being arrested for?”
It is a misdemeanor to give a false name to an officer who is lawfully discharging his official duties, OCGA § 16-10-25, but Wagner had refused to give any name. See United States v. Brown, 731 F2d 1491 (11th Cir. 1984), modified on other grounds, 743 F2d 1505 (1984).
There is no evidence that Wagner was being arrested for the misdemeanor of knowingly and wilfully obstructing or hindering the officer in his investigation of the complaint, by refusing to give his name, if this was the State’s theory. See OCGA § 16-10-24 (a). In fact, the officer testified that defendant was under arrest for disorderly conduct at the time he asked defendant to sit in the back seat of the patrol car. The only evidence approaching disorderly conduct up to that point was the use of an expletive and refusal to give his name. If he was charged with such, it was not pursued. Defendant’s oral response does not constitute disorderly conduct. See Cunningham v. State, 260 Ga. 827 (400 SE2d 916) (1991); Hess v. Indiana, 414 U. S. 105 (94 SC 326, 38 LE2d 303) (1973).
*184Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.