Cox v. State
| Decision Date | 06 January 1995 |
| Docket Number | No. A94A2170,A94A2170 |
| Citation | 453 S.E.2d 471,216 Ga.App. 86 |
| Parties | COX v. The STATE. |
| Court | Georgia Court of Appeals |
Rosemary E. Myers, Athens, for appellant.
Kenneth W. Mauldin, Sol., Ralph W. Powell, Jr., Asst. Sol., for appellee.
Robert Cox was charged by accusation with the offenses of discharging a pistol near a public street, OCGA § 16-11-103; cruelty to animals in the second degree, OCGA § 16-12-4(a); reckless conduct, OCGA § 16-5-60(b); and pointing a pistol at another, OCGA § 16-11-102. He was convicted on all counts and his motion for new trial was denied.
1. Cox enumerates the general grounds. The evidence presented at trial showed that on the evening of October 4, 1993, Andrew Brown brought his dog, Square, into downtown Athens, tied him to a parking meter on the sidewalk, and entered a bar to meet friends. About 9:30 p.m., Brown and Doug Hollingsworth heard two noises a few seconds apart that sounded like guns being fired or cars backfiring. Hollingsworth stepped outside the bar and found the dog "obviously wounded and bleeding." He also saw Cox standing nearby with a gun. Hollingsworth testified he was angry and asked Cox sarcastically if he was having fun, whereupon Cox turned to face him, pointed the gun at him, and asked him if he "want[ed] some too." The police were summoned and arrested Cox, who had a valid permit for the gun and had remained in the area. A passerby who witnessed the shooting identified Cox as the man he observed firing the gun at the dog.
Cox, who is mentally retarded, lives in public housing and bought the gun to protect himself. He was walking in downtown Athens toward his home shortly before 9:30 p.m. and had the feeling someone was following him when he encountered the dog. He did not recognize that the dog was leashed and thought he could not get away from the dog; he felt threatened by both the dog and persons who gathered after he shot the dog. He testified it appeared to him some of the people had sticks or pieces of iron. He admitted he must have shot the dog (although he had no recollection of the actual shooting) and that he pointed the gun at someone. It is obvious that this evidence amply supports Cox's conviction of the crimes of discharging a pistol near a public street and pointing a pistol at another.
As to the offense of cruelty to animals in the second degree, a person is guilty of this misdemeanor "when his act ... causes unjustifiable physical pain, suffering, or death to any living animal." OCGA § 16-12-4(a). Although Cox testified he never meant to hurt the dog, wilfulness, malice and intent are not elements of this offense. Miller v. State, 179 Ga.App. 217, 218(1), 345 S.E.2d 909 (1986). Several witnesses testified that the dog was yelping and cowering after being shot. A veterinarian testified the dog was not seriously hurt but she believed the dog had some degree of pain. It is undisputed the dog was tied to the meter, and there is no evidence the shooting was necessary. We find this evidence sufficient to authorize the jury to convict Cox of cruelty to animals under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Willis v. State, 201 Ga.App. 182, 410 S.E.2d 377 (1991).
A person is guilty of reckless conduct when he "endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act ... will cause 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." OCGA § 16-5-60(b). Cox admitted he knew he should not discharge the gun within the city limits; he knew he was already "in enough trouble" for shooting the dog and had no intention of shooting into the crowd; he knew he was still holding the gun when he turned and pointed it at a person; and it was possible that he threatened Hollingsworth. This conduct deviates from the standard of care a reasonable person would have exercised under the circumstances. Moreover, despite Cox's disability, it was sufficient to show conscious disregard of a substantial and unjustifiable risk of endangering the safety of others. The jury was authorized to convict Cox of the offense of reckless conduct under the standard required by Jackson v. Virginia.
2. The State moved in limine to exclude testimony from two mental health professionals Cox sought to introduce. The trial court granted the State's motion on the ground that Cox failed to comply with the notice provisions of Uniform Superior Court Rule 31.4. The rule requires that notice be filed and served on the State at least ten days before trial if the defense intends "to raise the issue that the defendant or accused was or is insane, mentally incompetent, or mentally ill at the time of act or acts charged against him...." (Emphasis supplied.)
Cox contends the trial court erred in excluding the expert testimony because he was not seeking to introduce the testimony to put forward a defense of insanity or diminished capacity but in support of his main defense of justification. Relying upon Pugh v. State, 191 Ga.App. 394, 382 S.E.2d 143 (1989), he argues that USCR 31.4 does not bar the use of such testimony under these circumstances. In Pugh, this court held that expert evidence detailing "battered woman syndrome" was admissible at trial despite failure of the defendant to give timely notice pursuant to USCR 31.4. The evidence in Pugh was admitted for the purpose of establishing that the defendant was a battered woman and suffered fears common to battered women, which was relevant to her claim of self-defense. It was unnecessary for us in Pugh to determine "whether the 'battered woman syndrome' also raises an issue of insanity, mental illness, or mental incompetency, because the Supreme Court has specifically held [in Smith v. State, 247 Ga. 612 (277 SE2d 678) (1981) ] that evidence of the battered woman syndrome is independently admissible in conjunction with a claim of self-defense." Id., 191 Ga.App. at 395, 382 S.E.2d 143. In this case, we must decide whether the testimony excluded raised an issue within the contemplation of USCR 31.4.
OCGA § 16-3-21(a) provides that "[a] person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself ... against such other's imminent use of unlawful force." (Emphasis supplied.) Although Cox relies...
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