Montford v. State, A01A2207.
| Decision Date | 27 March 2002 |
| Docket Number | No. A01A2207.,A01A2207. |
| Citation | 254 Ga. App. 524,564 S.E.2d 216 |
| Parties | MONTFORD v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Davis & McPhail, Robert S. McPhail, Butler, for appellant.
J. Gray Conger, Dist. Atty., Mark C. Post, Asst. Dist. Atty., for appellee.
John Montford was convicted and sentenced on one count each of aggravated assault on a police officer, serious injury by motor vehicle, fleeing or attempting to elude a police officer, interference with government property, reckless driving, and speeding. He challenges his conviction of aggravated assault on several grounds related to the argument that proof of that crime cannot be based upon mere criminal negligence.
Construed in favor of the verdict the relevant evidence shows that at about 4:45 a.m., police were called in response to allegations that Montford was harassing his former girlfriend in violation of a restraining order. Deputy Sheriff Robinson went to the woman's home, and while the deputy was attempting to investigate, Montford fled in his car without activating his headlights. Robinson attempted to stop Montford by waving a flashlight, but had to step out of the road to avoid getting hit. Robinson had been on foot in the dark and could not say whether Montford saw him. Robinson called for help, and Officer Searcy, who was located in the direction that Montford was headed, responded to the call. Searcy placed his marked patrol car in Montford's path, but not in such a way as to completely block the road, and turned on his emergency lights and blinking headlights. Montford drove past Searcy at about 35 or 40 mph and turned left onto Georgia Highway 96. Searcy activated his siren and pursued Montford. Searcy reached speeds of between 120 and 125 mph while chasing Montford for about six miles but never caught up. (He testified that Montford reached those speeds as well.)
Searcy called for more help, and Officer Gibson responded by coming down Highway 96 directly toward Montford in his patrol car. At one point, having yet to see Montford approaching, Gibson activated his emergency lighting and started to turn around in order to follow Montford when he passed. But seconds later, Montford crashed into Gibson's patrol car seriously injuring Gibson and himself. There were no skid marks found on the pavement prior to the impact site. Montford was charged with aggravated assault on a police officer based on this collision.
1. Montford contends there was insufficient evidence to support the conviction of aggravated assault. Aggravated assault requires proof of certain aggravating circumstances and an assault. OCGA § 16-5-21. Assault requires showing either that the defendant attempted to injure someone, OCGA § 16-5-20(a)(1), or that the victim was in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-2(a)(2). See Dunagan v. State, 269 Ga. 590, 591(2), 502 S.E.2d 726 (1998). Montford urges that the State failed to show either.
According to the Supreme Court, the intent to injure necessary to support a conviction under subsection (a)(1) cannot be satisfied by a showing of criminal negligence on the part of the appellant. Dunagan, 269 Ga. at 591-592(2), 502 S.E.2d 726(a). See also Bowers v. State, 177 Ga.App. 36, 37-38(1), 338 S.E.2d 457 (1985). In other words, no matter the degree, a wanton or reckless state of mind cannot be considered the equivalent of the specific intent to injure necessary to sustain this type of aggravated assault.
We disagree with this position and agree with Justice Carley's reasoning in his dissent in Dunagan. Justice Carley would hold that criminal negligence can substitute for the intent to injure in the crime of aggravated assault with a deadly weapon. Id. at 595, 502 S.E.2d 726, (Carley, J., dissenting). It stands to reason that Montford knew that his reckless and illegal conduct was likely to injure another person or result in the destruction of life. He was driving without lights, speeding, eluding an officer, and driving in a reckless manner. While engaging in this reckless behavior, his car crashed into Officer Gibson's patrol car and injured Gibson. Montford clearly recklessly disregarded the consequences of his actions and was heedlessly indifferent to the rights and safety of others. And reasonable foresight tells that injury would probably result. Thus, he intended to commit the unlawful acts which proximately resulted in serious injuries to another. In our view he had sufficient intent to support a conviction of aggravated assault with intent to injure.
Nevertheless, we are constrained to follow the holding of the majority in Dunagan, and therefore, something more is required. To sustain a charge of aggravated assault under subsection (a)(1), the attempted or completed injury to the victim must be the intended consequence of the defendant's act. Dunagan, 269 Ga. at 592(2), 502 S.E.2d 726(a). Thus, the question here is whether there was sufficient evidence from which a rational juror could have found beyond a reasonable doubt that Montford intended to injure Officer Gibson or that, under subsection (a)(2), prior to the collision Gibson saw Montford about to hit him. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
(a) Montford denied intentionally trying to hit Gibson's patrol car or injure him. He claimed that he looked away for a moment and when he looked up there was a car in front of him that he hit. He admitted that he was going at least 85 mph and not paying attention to where he was going.
Officer Searcy was about one-half mile behind Montford at the time of the accident. He saw Gibson coming toward Montford. He testified that "[Gibson] went to turn around and that's when the defendant ran into him." Searcy saw that Gibson had his blue lights on. Searcy could not tell whether Montford was proceeding straight along the road. But he did admit that Montford was in his lane, the eastbound lane, when the accident occurred, and not on the shoulder of the road. Searcy could not say whether Gibson had pulled in front of Montford during his attempt to turn around. But he admitted that, because the road had only two lanes, Gibson would have necessarily blocked Montford by attempting to turn around. Searcy testified, "In my opinion when [Gibson] went to turn around he misjudged how fast [Montford's] vehicle was going, and that's when he—" Searcy did not complete his thought.
Gibson testified that he turned his blue lights on and was preparing to turn around in a straight sec...
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