Dunagan v. State

• Decision Date: 16 July 1998
• Docket Number: No. S98A0421.,S98A0421.
• Citation: 269 Ga. 590,502 S.E.2d 726
• Parties: DUNAGAN v. The STATE.
• Court: Georgia Supreme Court

502 S.E.2d 726

269 Ga. 590

DUNAGAN v. The STATE.

No. S98A0421.

Supreme Court of Georgia.

July 16, 1998.

Michael C. Garrett, Garrett & Gilliard, P.C., Augusta, for Jonathan Daniel Dunagan.

Daniel J. Craig, Dist. Atty., Kelly Paige Brashear, Charles R. Sheppard, Asst. Dist. Attys., Augusta, Hon. Thurbert E. Baker, Atty. Gen., Elizabeth Lewis Jaeger, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.

James C. Bonner, Jr., Georgia Indigent Defense Council, Atlanta, for Amicus Appellant.

HUNSTEIN, Justice.

Jonathan Dunagan was indicted on charges of malice murder, felony murder, and possession of a firearm during the commission of a felony arising out of the shooting death of Jason Freund. A jury found Dunagan guilty of felony murder and the possession charge. He appeals from the denial of his motion for new trial, contending error in the trial court's instructions to the jury.¹ We agree and reverse. 1. The evidence adduced at trial authorized the jury to find that Dunagan was a member of a group of teenage boys who spent time together and frequently played with handguns. It was not uncommon for the teenagers during their horseplay to point guns at one another. On the day of the homicide, Dunagan left his five-shot .38 caliber Rossi revolver unattended on a kitchen counter for 45 minutes. Dunagan had loaded three rounds of live ammunition in the weapon, including a round in the chamber directly in front of the hammer. Unaware that the cylinder in this type of gun rotates to the left before firing and observing the live round in front of the hammer, another member of the group rotated the gun's cylinder to the adjacent empty chamber to make the weapon safer. The victim, Jason Freund, knew the gun contained live ammunition and that the chamber had been rotated. When Dunagan returned, he did not inspect the gun before he began playing with it. Dunagan intentionally pointed the weapon directly at Freund's head and pulled the trigger. Dunagan's behavior was so surprising that the only other teenager in the room turned to see if the victim showed any shock in response. Although the gun dry fired the first time Dunagan pulled the trigger, the second time Dunagan fired a live round of ammunition. Freund was struck in the head and died immediately. Dunagan tried to persuade some of the other teenagers to help him conceal the body but they refused and instead informed adults who then contacted the authorities.

We find this evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Dunagan was guilty of felony murder based on the underlying felony of aggravated assault and possession of a firearm during the commission of a felony. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In his sole enumeration of error, Dunagan contends the trial court erred when in response to inquiries by the jury whether felony murder could be committed without intent, the court gave several charges instructing the jury that criminal negligence could substitute for criminal intent. Dunagan argues that these charges improperly authorized the jury to convict him of felony murder based on an assault, here aggravated into felony status by the use of a deadly weapon, OCGA § 16-5-21(a)(2), based solely on Dunagan's criminal negligence, rather than his criminal intent.

There are two ways to commit an assault: when a person "[a]ttempts to commit a violent injury to the person of another," OCGA § 16-5-20(a)(1) and when a person "[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury." Id. at (a)(2). A review of the language of the indictment in this case reveals that it was sufficient to charge Dunagan with an assault based on either (a)(1) or (a)(2) in regard to the aggravated assault underlying the felony murder charge, see Jordan v. State, 214 Ga.App. 598, 601(2), 448 S.E.2d 917 (1994), and the trial court correctly instructed the jury on both types of assault.

(a) Because an aggravated assault with a deadly weapon based on OCGA § 16-5-20(a)(1) cannot be committed by criminal negligence, we agree with Dunagan that the trial court's instructions to the jury were error. "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." Bowers v. State, 177 Ga.App. 36, 38(1), 338 S.E.2d 457 (1985). Threatened or actual injury to a victim by means of a deadly weapon that results from a defendant's criminal negligence constitutes the offense of reckless conduct. Id. Accord Chambers v. State, 205 Ga.App. 16, 19, 421 S.E.2d 88 (1992), wherein it was recognized that both aggravated assault with a deadly weapon and reckless conduct "proscribe subjecting another to actual injury or the possibility of injury, but differ depending on whether the forbidden act is intentional or the product of criminal negligence. [Cit.]" See also Sheats v. State, 210 Ga.App. 622, 436 S.E.2d 796 (1993) ("[t]he jury's finding that Sheats committed aggravated assault under OCGA § 16-5-21 required a finding of an intentional infliction of injury, which precluded the element of criminal negligence in reckless conduct under OCGA§ 16-5-60").

Although the trial court relied on OCGA § 16-2-1 (defining the elements of a crime) in charging the jury that criminal negligence can substitute for criminal intent, criminal intent and criminal negligence are not interchangeable in those instances where the mental culpability of the actor is the essential element that distinguishes two separate crimes, with separate penalties, for committing the same behavior. Such an instance exists with aggravated assault based on OCGA § 16-5-20(a)(1) and reckless conduct: where the proscribed conduct is the result of the actor's criminal intent, the Legislature has determined that the offense constitutes the felony of aggravated assault whereas that same conduct which is the result of the actor's criminal negligence supports a conviction only of reckless conduct.² OCGA § 16-5-60. See Lindsey v. State, 262 Ga. 665, 666(2)(b), 424 S.E.2d 616 (1993) ("Reckless conduct is an act of criminal negligence, rather than an intentional act, that causes bodily harm or endangers the bodily safety of another"); see also Brewton v. State, 216 Ga.App. 346, 454 S.E.2d 558 (1995), overruled on others grounds, 266 Ga. 160, 465 S.E.2d 668 (1996) (crime of reckless conduct is an instance of criminal negligence, rather than a culpable act of either general or specific criminal intent).

A different result is not supported by murder cases such as Carrigan v. State, 206 Ga. 707(2), 58 S.E.2d 407 (1950) and Myrick v. State, 199 Ga. 244, 34 S.E.2d 36 (1945) or cases involving aggravated assault with intent to murder such as Gallery v. State, 92 Ga. 463, 17 S.E. 863 (1893) and Mundy v. State, 59 Ga.App. 509, 1 S.E.2d 605 (1939). A review of those cases and the authority on which they rely reveals they are based on a form of homicide abolished by the Legislature in 1968³ and thus those holdings are inapplicable now. State v. Foster, 141 Ga.App. 258, 233 S.E.2d 215 (1977), aff'd. 239 Ga. 302, 236 S.E.2d 644 (1977). Accordingly, we find it necessary to overrule those cases which, relying on inapposite law, have held that an aggravated assault with a deadly weapon based on OCGA § 16-5-20(a)(1) can be committed by criminal negligence. Osborne v. State, 228 Ga.App. 758, 492 S.E.2d 732 (1997); Jordan, supra, 214 Ga.App. at 601-602(2), 448 S.E.2d 917.⁴

Therefore, under the facts in this case, we hold that the trial court's charges that criminal negligence could substitute for criminal intent were error.

(b) The trial court's charges that criminal negligence can substitute for criminal intent were also error under the alternate ground underlying the felony murder conviction, aggravated assault with a deadly weapon based on OCGA § 16-5-20(a)(2). "[I]f the pointing of [a] firearm place[s] the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred." Rhodes v. State, 257 Ga. 368, 370(5), 359 S.E.2d 670 (1987). See also Gilbert v. State, 209 Ga.App. 483, 484(1), 433 S.E.2d 664 (1993). These cases recognize that pursuant to the express language of (a)(2), an assault under that subsection looks to the victim's state of mind, rather than the accused's, to establish the elements of an assault. There is an intent of the accused that must be shown, but it is only the criminal intent to commit the acts which caused the victim to be reasonably apprehensive of receiving a violent injury, not any underlying intent of the accused in assaulting the victim. See Osborne v. State, 228 Ga.App. 758, 759, 492 S.E.2d 732 (1997).⁵ Thus, because it is the state of mind of the victim that determines whether an assault predicated solely on OCGA § 16-5-20(a)(2) has been committed, where a case involves aggravated assault based on (a)(2), there is no reason for a charge on criminal negligence at all.

3. Accordingly, insofar as the felony underlying Dunagan's felony murder conviction was an aggravated assault based on OCGA § 16-5-20(a)(2), we find the giving of the challenged instructions constituted harmless error. At worst, the instructions could only have benefitted Dunagan, in that the jury could have believed it had to look beyond the question of whether the victim was placed in reasonable apprehension of immediately receiving a violent injury and also determine whether Dunagan possessed a culpable mental state it was not required to find in order to decide whether he committed felony murder.

However, we find that the erroneous charges do require reversal of the felony murder conviction inasmuch as that conviction could have been founded on the underlying felony of aggravated assault based on OCGA § 16-5-20(a...