Shaw v. State
| Decision Date | 15 June 1999 |
| Docket Number | No. A99A0143.,A99A0143. |
| Citation | 519 S.E.2d 486,238 Ga. App. 757 |
| Parties | SHAW v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Gayle D. Bacon, Maryann F. Blend, Decatur, for appellant.
J. Tom Morgan, District Attorney, Sheila A. Connors, Robert M. Coker, Assistant District Attorneys, for appellee.
Melvin Shaw and a co-defendant were indicted on three counts of aggravated assault on a police officer. A jury convicted the co-defendant of all three assault charges, acquitted Shaw of one assault charge, and convicted him of two assault charges. Shaw, who was 18 and a high school junior at the time of the incident, had no previous convictions and was sentenced to serve 15 years. He appeals the aggravated assault convictions, arguing that the trial court erred in failing to charge on the lesser included offense of reckless conduct, and that insufficient evidence supported the convictions. Because we conclude the trial court should have charged the jury on reckless conduct, we reverse.
The charges arose out of a high speed car chase through east Atlanta. Several officers testified that someone in the Cadillac they were chasing fired at them on three separate occasions. The three aggravated assault charges arose from two of the shooting incidents. The first charge alleged Shaw and his co-defendant assaulted Officer W.C. Jones with a handgun; this was the charge of which Shaw was acquitted. The second and third charges alleged assaults against Officers R.A. Mason and Craig Kailimai, who were riding together.
1. Shaw contends the trial court erred in refusing to charge reckless conduct as a lesser included offense of aggravated assault on a police officer. He argues that a fellow passenger's statement that Shaw shot into the air while the police were chasing them was sufficient to justify a reckless conduct charge.
In the statement, the passenger said:
When I knew something was going on I had heard the police siren. And so I looked behind us. I saw the police car with the lights on. I asked what was going on. Someone said the police got behind us. We were just riding. We were on the expressway. Before we got to the expressway, Melvin had his hand out the window and I heard about four or five shots. He was pointing up in the air and shooting.
The police officer who took this statement testified that he thought the passenger described a shooting incident that took place before the car entered the expressway.
Slight evidence is sufficient to justify charging on a lesser included offense, and information contained in a statement introduced by the State can constitute such evidence. Edwards v. State, 264 Ga. 131, 132-133, 442 S.E.2d 444 (1994). The question, then, is whether shooting out of a car into the air while police are pursuing could also constitute the crime of reckless conduct. If so, the trial court erred in failing to give the charge.
Shaw was indicted for "an assault on the person of R.A. Mason [and C. Kailimai] with a handgun, a deadly weapon," and was convicted on those two counts under a jury charge that permitted his conviction if the jury found that, with a deadly weapon, Shaw either attempted to commit a violent injury to the officers or placed the officers in reasonable apprehension of immediately receiving a violent injury. The trial court further charged that "a person commits the offense of aggravated assault when that person assaults another person with a deadly weapon," but declined to charge reckless conduct as a lesser included offense. The Code defines reckless conduct as causing bodily harm to or endangering the bodily safety of another person "by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care." OCGA § 16-5-60(b).
Both crimes [assault with intent to injure and assault by scaring the victim] 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.
(Emphasis supplied). Bowers v. State, 177 Ga.App. 36, 38(1), 338 S.E.2d 457 (1985).
It is clear that, under the evidence in this case, a reckless conduct charge is not warranted for an aggravated assault committed by placing another in reasonable apprehension of immediately receiving a violent injury. If the victim reasonably fears an immediate violent injury from a firearm, the aggravated assault has occurred. Dunagan v. State, 269 Ga. 590, 593(2)(b), 502 S.E.2d 726 (1998); Clark v. State, 191 Ga.App. 386, 387(3), 381 S.E.2d 763 (1989). The testimony on which Shaw relies does not alter this result, because one can place another person in reasonable apprehension of violent injury by firing into the air as well as by firing at the victim. The testimony of Officers Mason and Kailimai supported a finding that they were afraid of being shot, and the trial court did not err in declining to charge on reckless conduct on an aggravated assault with a deadly weapon based on conduct falling under OCGA § 16-5-20(a)(2).
The more difficult question is whether Shaw was entitled to a reckless conduct charge as a lesser included offense of aggravated assault with a deadly weapon based on OCGA § 16-5-20(a)(1) for attempting to injure another person. Here, the evidence, though slight, indicated that Shaw might have merely fired a gun out of the car up into the air while the police were chasing the car in which he was riding. If he did fire a gun into the air instead of at the pursuing officers, he may not have had the intent to attempt to commit a violent injury to another, although such an...
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