Bowers v. State, 70368
| Decision Date | 07 November 1985 |
| Docket Number | No. 70368,70368 |
| Citation | 338 S.E.2d 457,177 Ga.App. 36 |
| Parties | BOWERS v. The STATE. |
| Court | Georgia Court of Appeals |
William S. Lewis, Savannah, for appellant.
Spencer Lawton, Jr., Dist. Atty., David T. Lock, Asst. Dist. Atty., for appellee.
Appellant was tried before a jury on an indictment which alleged that he had committed an aggravated assault, in that he "did unlawfully assault [the victim] with a deadly weapon, a gun, by shooting him...." He was found guilty and appeals from the judgment of conviction and sentence entered on the guilty verdict. The sole enumeration of error is an assertion that the trial court erroneously refused to give a requested instruction on the misdemeanor offense of "reckless conduct," OCGA § 16-5-60, as a possible alternative to aggravated assault as the crime for which appellant might be found guilty.
1. "The [S]tate or the accused may, by written application to the trial judge at or before the close of the evidence, request him to charge on lesser crimes that are included in those set forth in the indictment or accusation, and his failure to so charge as requested, if the evidence warrants such requested charge or charges, shall be error." (Emphasis supplied.) State v. Stonaker, 236 Ga. 1, 2(3), 222 S.E.2d 354 (1976). State v. Hightower, 252 Ga. 220, 222-223, 312 S.E.2d 610 (1984). "To allow the defendant by his own statement to propose a crime different from that charged and which is not a lesser included offense in order to get a jury charge thereon would allow the defendant to usurp the [S]tate's prerogative to indict and try him for a particular offense." (Emphasis supplied.) State v. Hightower, supra at 223, fn. 2, 312 S.E.2d 610.
The indictment of appellant for aggravated assault was narrowly drawn in a single count and did not contain any additional language which would purport to constitute an alternative charge of the offense of reckless conduct. Compare State v. Williams, 247 Ga. 200, 275 S.E.2d 62 (1981); State v. Stonaker, supra, 236 Ga. at 2(1), 222 S.E.2d 354. Thus, the first issue for resolution is whether the crime of "reckless conduct" may ever be considered, as a matter of law, a lesser included offense of an aggravated assault committed by shooting the victim, that being the specific allegation of the crime for which appellant was actually indicted. See State v. Hightower, supra () If so, then and only then, the issue becomes whether the evidence in the instant case authorized a factual finding of "reckless conduct" and thus warranted a jury charge as to that crime. State v. Stonaker, supra at 2(3), 222 S.E.2d 354. Compare Hightower v. State, 166 Ga.App. 744, 749(6), 305 S.E.2d 372 (1983), rev'd State v. Hightower, supra.
It appears never to have been previously determined "whether or not reckless conduct is a lesser included offense of aggravated assault...." State v. Williams, supra 247 Ga. at 203, 275 S.E.2d 62. Thus, the issue in the instant case is one of first impression.
"A 'crime' is a violation of a statute of this [S]tate in which there is a joint operation of an act or omission to act and intention or criminal negligence." OCGA § 16-2-1. Appellant was indicted for the offense of aggravated assault with a deadly weapon. OCGA § 16-5-21(a)(2). Compare OCGA § 16-5-21(a)(1). Such an assault is an intentional act. See Riddle v. State, 145 Ga.App. 328, 243 S.E.2d 607 (1978), overruled on other grounds Adsitt v. State, 248 Ga. 237, 282 S.E.2d 305 (1981); Jones v. State, 154 Ga.App. 806, 808(5), 270 S.E.2d 201 (1980); Merrell v. State, 162 Ga.App. 886, 887(2), 293 S.E.2d 474 (1982). Thus, the specific crime that appellant was charged with committing was the intentional shooting of the victim.
The crime of "reckless conduct" is defined as follows: "A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause the harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor." (Emphasis supplied.) "[T]he reckless disregard of consequences, or a heedless indifference to the rights and safety of others, and a reasonable foresight that injury would probably result[,]" constitutes criminal negligence. Cain v. State, 55 Ga.App. 376(1), 190 S.E. 371 (1937). Thus, the crime of reckless conduct is, in essence, an instance of criminal negligence, rather than an intentional act, which causes bodily harm to or endangers the bodily safety of another.
Therefore, unlike the offenses of armed robbery and assault and battery as in Hightower, supra, the crime for which appellant was indicted and the crime of reckless conduct are not necessarily "different" offenses. Both crimes proscribe the same general acts, to wit: either the subjection of another to the possibility of personal injury; or, the actual infliction of such an injury on the victim. The two crimes potentially differ only in one respect. In the case of aggravated assault with a deadly weapon, the attempted or the completed injury to the victim is the intended consequence of the defendant's act. In the case of reckless conduct, the threatened or the actual injury to the victim is, instead, the product of the defendant's criminal negligence. This similarity between the proscribed acts, coupled with a dissimilarity between the mental culpability which produces those acts, would indicate the potential for reckless conduct to be deemed, as a matter of law, a lesser included offense of aggravated assault with a deadly weapon. As a matter of law, a crime is "included" within the offense charged in an indictment if "[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission." (Emphasis supplied.) OCGA § 16-1-6. See also State v. Estevez, 232 Ga. 316, 319, 206 S.E.2d 475 (1974).
In a given case, the potential correlation between the offenses of...
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