2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 5 - Crimes Against the Person
Article 4 - Reckless Conduct
§ 16-5-60. Reckless Conduct Causing Harm to or Endangering the Bodily Safety of Another; Conduct by Hiv Infected Persons; Assault by Hiv Infected Persons or Hepatitis Infected Persons

1. Any term used in this Code section and defined in Code Section 31-22-9.1 shall have the meaning provided for such term in Code Section 31-22-9.1.
2. 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 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.
3. A person who is an HIV infected person who, after obtaining knowledge of being infected with HIV:
   1. Knowingly engages in sexual intercourse or performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another person and the HIV infected person does not disclose to the other person the fact of that infected person's being an HIV infected person prior to that intercourse or sexual act;
   2. Knowingly allows another person to use a hypodermic needle, syringe, or both for the introduction of drugs or any other substance into or for the withdrawal of body fluids from the other person's body and the needle or syringe so used had been previously used by the HIV infected person for the introduction of drugs or any other substance into or for the withdrawal of body fluids from the HIV infected person's body and where that infected person does not disclose to the other person the fact of that infected person's being an HIV infected person prior to such use;
   3. Offers or consents to perform with another person an act of sexual intercourse for money without disclosing to that other person the fact of that infected person's being an HIV infected person prior to offering or consenting to perform that act of sexual intercourse;
   4. Solicits another person to perform or submit to an act of sodomy for money without disclosing to that other person the fact of that infected person's being an HIV infected person prior to soliciting that act of sodomy; or
   5. Donates blood, blood products, other body fluids, or any body organ or body part without previously disclosing the fact of that infected person's being an HIV infected person to the person drawing the blood or blood products or the person or entity collecting or storing the other body fluids, body organ, or body part,

      is guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not more than ten years.

4. A person who is an HIV infected person or hepatitis infected person and who, after obtaining knowledge of being infected with HIV or hepatitis, commits an assault with the intent to transmit HIV or hepatitis, using his or her body fluids (blood, semen, or vaginal secretions), saliva, urine, or feces upon:
   1. A peace officer while the peace officer is engaged in the performance of his or her official duties or on account of the peace officer's performance of his or her official duties; or
   2. A correctional officer while the correctional officer is engaged in the performance of his or her official duties or on account of the correctional officer's performance of his or her official duties

      is guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five nor more than 20 years.

(Code 1933, § 26-2910, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1988, p. 1799, § 3; Ga. L. 2003, p. 306, § 1.)

- Child committing delinquent act constituting AIDS transmission crime including testing and reporting, § 15-11-603.

Transmitting crimes and required reporting, § 17-10-15.

Disclosure of AIDS confidential information, § 24-12-21.

Control of HIV, T. 31, C. 17A.

Use of HIV test results in granting relief from sentence, § 42-9-42.1.

- Ga. L. 1988, p. 1799, § 1, not codified by the General Assembly, provides: "The General Assembly finds that Acquired Immunodeficiency Syndrome (AIDS) and its causative agent, including Human Immunodeficiency Virus (HIV), pose a grave threat to the health, safety, and welfare of the people of this state. In the absence of any effective vaccination or treatment for this disease, it threatens almost certain death to all who contract it. The disease is largely transmitted through sexual contacts and intravenous drug use, not through casual contact, and, while deadly, is therefore preventable. The key component of the fight against AIDS is education. Through public education and counseling our citizens can learn how the disease is transmitted and, thus, how to protect themselves and prevent its spread. The Department of Human Resources is encouraged to continue its efforts to educate all Georgians about the disease, its causative agent, and its means of transmission. In addition, voluntary testing should be encouraged for anyone who feels at risk of infection. While education, counseling, and voluntary testing are vital to the elimination of this epidemic, other measures are needed to protect the health of our citizens, and it is the intention of the General Assembly to enact such measures in the exercise of its police powers in order to deal with AIDS and HIV infection."

- Acquired immune deficiency syndrome (AIDS), Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Chapter 290-5-48.

- For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B. J. 8 (2001). For article, "New Challenges for the Georgia General Assembly: Survey of Child Endangerment Statutes," see 7 Ga. St. B. J. 8 (2001). For note on the 2003 amendment to this Code section, see 20 Ga. St. U. L. Rev. 81 (2003).

ANALYSIS

• General Consideration
• HIV Infected Persons
• Application
• Jury Instructions

Former Code 1933, § 26-2910 was constitutional. Mitchell v. State, 154 Ga. App. 399, 268 S.E.2d 360, cert. denied, 449 U.S. 1011, 101 S. Ct. 567, 66 L. Ed. 2d 469 (1980).

Former Code 1933, § 26-2910 was sufficiently definite to give person of ordinary intelligence fair notice that such conduct was forbidden by the statute. Horowitz v. State, 243 Ga. 441, 254 S.E.2d 828 (1979).

- Because O.C.G.A. § 16-5-60 failed to provide defendant with fair notice that defendant could be held criminally responsible for leaving children in the care of an older son, the statute failed to clearly define the statutory prohibitions, rendering the statute unconstitutionally vague as applied. Hall v. State, 268 Ga. 89, 485 S.E.2d 755 (1997).

O.C.G.A. § 16-5-60 was not unconstitutionally vague as applied when the defendant was accused of taking direct, physical, and adverse action against an infant; that statute provided ample notice to the defendant that the conduct of which defendant was accused was prohibited since roughly handling an infant clearly may endanger the bodily safety of the infant and that risk is clear, substantial and unjustifiable, and disregarding such a risk would be a gross deviation from the standard of care a reasonable person would exercise in the situation. State v. Boyer, 270 Ga. 701, 512 S.E.2d 605 (1999).

- Defendant's conviction for misdemeanor reckless conduct under O.C.G.A. § 16-5-60(b) was affirmed as the statute was not unconstitutionally vague under the Fourteenth Amendment since the statute gave a person of ordinary intelligence fair notice that the statute prohibited a person from leaving one's children, one an infant and the other a toddler, unsupervised on the upper floor of a two-story home that was not equipped with any device to keep the children from falling down a nearby flight of stairs. Baker v. State, 280 Ga. 822, 633 S.E.2d 541 (2006).

- In a wrongful death action alleging that defendant negligently passed a loaded handgun to the shooter just before the fatal shooting of plaintiffs' decedent, the trial court erred in granting defendant's motion in limine to exclude plaintiffs' claim against defendant based on defendant's alleged violation of O.C.G.A. § 16-5-60(b). Key v. Grant, 238 Ga. App. 818, 520 S.E.2d 277 (1999).

- Jury was authorized to convict a mentally retarded defendant of the offense of reckless conduct when defendant admitted knowing defendant should not discharge a gun within the city limits; defendant knew defendant was already in trouble for shooting a dog and defendant knew defendant was still holding the gun when defendant turned and pointed the gun at a person. Cox v. State, 216 Ga. App. 86, 453 S.E.2d 471 (1995).

Cited in McCane v. State, 147 Ga. App. 730, 250 S.E.2d 181 (1978); State v. Williams, 247 Ga. 200, 275 S.E.2d 62 (1981); Raines v. State, 247 Ga. 504, 277 S.E.2d 47 (1981); Stewart v. State, 158 Ga. App. 378, 280 S.E.2d 403 (1981); Moore v. State, 158 Ga. App. 579, 281 S.E.2d 322 (1981); Nutt v. State, 159 Ga. App. 46, 282 S.E.2d 696 (1981); Neal v. State, 160 Ga. App. 498, 287 S.E.2d 399 (1981); Cook v. State, 249 Ga. 709, 292 S.E.2d 844 (1982); Smith v. State, 249 Ga. 801, 294 S.E.2d 525 (1982); Mease v. State, 165 Ga. App. 746, 302 S.E.2d 429 (1983); Fitzhugh v. State, 166 Ga. App. 320, 304 S.E.2d 127 (1983); Blanco v. State, 185 Ga. App. 535, 364 S.E.2d 903 (1988); Weaver v. State, 185 Ga. App. 573, 365 S.E.2d 130 (1988); Harmon v. State, 259 Ga. 846, 388 S.E.2d 689 (1990); Carter v. State, 260 Ga. 575, 398 S.E.2d 21 (1990); Brown v. State, 197 Ga. App. 398, 398 S.E.2d 434 (1990); Grimes v. State, 199 Ga. App. 152, 404 S.E.2d 324 (1991); Moses v. State, 264 Ga. 313, 444 S.E.2d 767 (1994); Howard v. State, 213 Ga. App. 542, 445 S.E.2d 532 (1994); Dunagan v. State, 269 Ga. 590, 502 S.E.2d 726 (1998); Massingill v. State, 240 Ga. App. 690, 524 S.E.2d 746 (1999); Vasser v. State, 273 Ga. 747, 545 S.E.2d 906 (2001); Webb v. State, 256 Ga. App. 653, 569 S.E.2d 596 (2002); Grant v. State, 257 Ga. App. 678, 572 S.E.2d 38 (2002); Ferguson v. State, 267 Ga. App. 374, 599 S.E.2d 335 (2004); Johnson v. State, 299 Ga. App. 474, 682 S.E.2d 601 (2009); State v. Hardy, 281 Ga. App. 365, 636 S.E.2d 36 (2006); Sanchez v. State, 285 Ga. 749, 684 S.E.2d 251 (2009); Snell v. State, 306 Ga. App. 651, 703 S.E.2d 93 (2010); Mathis v. State, 293 Ga. 35, 743 S.E.2d 393 (2013); Trustgard Ins. Co. v. Herndon, 338 Ga. App. 347, 3790 S.E.2d 115 (2016); Caldwell v. State, 355 Ga. App. 608, 845 S.E.2d 345 (2020).

Since defendant knew that defendant was HIV-infected, evidence that defendant attempted to bite a police officer was sufficient to sustain defendant's conviction for reckless endangerment. Burk v. State, 223 Ga. App. 530, 478 S.E.2d 416 (1996).

As the defendant testified of knowing the defendant was HIV-positive long before the defendant had sexual intercourse with the victim, and witnesses corroborated the victim's testimony that the defendant denied being HIV-positive, the defendant was properly convicted of violating O.C.G.A. § 16-5-60(c)(1), even though the defendant and two other witnesses testified that the defendant had disclosed the defendant's infection to the victim. Ginn v. State, 293 Ga. App. 757, 667 S.E.2d 712 (2008).

- Because there was no evidence to support a finding that the defendant was an "HIV infected person" with a "confirmed positive HIV test" as those terms were defined by O.C.G.A. § 31-22-9.1, the state failed to meet the burden to prove the defendant's status under O.C.G.A. § 16-5-60 and the defendant's conviction had to be reversed. Rodriguez v. State, 343 Ga. App. 526, 806 S.E.2d 916 (2017).

- Evidence was insufficient to convict the defendant of knowingly engaging in sexual intercourse without disclosing to the other person the fact of the defendant being an HIV infected person prior to that intercourse after the defendant obtained knowledge of being infected with HIV as the state failed to prove the defendant's HIV positive status as the record was devoid of any evidence that the defendant was determined to be infected with HIV by an HIV test approved for such purposes by the regulations of the Department of Community Health; and there was no testimony by a physician or other competent witness to explain the test report, or describe how the state satisfied the criteria for showing that the defendant was an HIV infected person. Propes v. State, 346 Ga. App. 116, 815 S.E.2d 571 (2018).

Defendant's threat to get a gun and shoot the officer's car, whereby defendant then turned back toward defendant's tavern, may very well have constituted the crime of terroristic threats under O.C.G.A. § 16-11-37, but it was not such an "act or omission" which "causes bodily harm to or endangers the bodily safety of another person" as support a conviction for reckless conduct. Gay v. State, 179 Ga. App. 430, 346 S.E.2d 877 (1986).

When defendant uses gun in self-defense in "unlawful manner," defendant is guilty of reckless conduct, and thus the act is not a "lawful act" within the meaning of former Code 1933, § 26-1103(b). Crawford v. State, 245 Ga. 89, 263 S.E.2d 131 (1980); Farmer v. State, 246 Ga. 253, 271 S.E.2d 166 (1980); Appleby v. State, 247 Ga. 587, 278 S.E.2d 366 (1981) (see O.C.G.A. § 16-5-3(b)).

- When the defendant, while holding the victims at gunpoint, intentionally fired what the defendant termed "warning shots" into a wall and a trash can, the defendant's act was either an act of insanity or constituted a felony, and the court did not err in refusing to give a requested charge on the misdemeanor offense of reckless conduct. Briard v. State, 188 Ga. App. 490, 373 S.E.2d 239, cert. denied, 188 Ga. App. 911, 373 S.E.2d 239 (1988).

- When the defendant fired a shot through a door, knowing a group of law enforcement officers were present on the other side, the evidence was sufficient to convict the defendant of reckless conduct. Beaton v. State, 255 Ga. App. 901, 567 S.E.2d 113 (2002).

In a criminal case wherein a gun discharged in an adjacent apartment and the bullet lodged in the head of an infant after traveling through the wall, insufficient evidence existed to support a defendant's conviction for reckless conduct since it could be inferred from the discharge of the weapon that the defendant acted recklessly, but it could also have been inferred that the weapon discharged accidentally. Allison v. State, 288 Ga. App. 482, 654 S.E.2d 628 (2007).

- Juvenile court properly denied a juvenile's motion for a new trial with regard to the juvenile's delinquency adjudication finding the juvenile guilty for aggravated assault, criminal property damage, cruelty to children, and reckless conduct arising from the shooting of a BB gun at a passing car. The juvenile was the only Caucasian identified in the group of youth; the juvenile admitted to hiding the BB gun; the juvenile did not dispute that the juvenile encouraged another youth to shoot the gun; and the judge was the final arbiter of the credibility and witness issues and had the province to reject the testimony of the juvenile and a parent that the juvenile did not shoot the gun. In the Interest of A.A., 293 Ga. App. 827, 668 S.E.2d 323 (2008).

- Fact that there was no state law at the time of a pitbull attack specifically forbidding ownership of pitbulls or specifically outlawing any one of the defendant's isolated acts regarding the dogs did not preclude a jury from finding that the defendant's conduct was reckless; the state was not required to prove that the defendant knew of the dogs' propensity to attack, bite, and injure a child as occurred in circumstances giving rise to the charge against the defendant. Turnipseed v. State, 186 Ga. App. 278, 367 S.E.2d 259 (1988).

Defendant's pit bull mauled a child. The defendant's conviction in recorder's court of violating a county ordinance by failing to exercise ordinary care in controlling the defendant's pet for the protection of others was sufficiently separate from a misdemeanor reckless conduct charge under O.C.G.A. § 16-5-60(b), which required proof of a gross deviation from the standard of care, that a successive prosecution for violating § 16-5-60(b) did not violate the double jeopardy ban. State v. Stepp, 295 Ga. App. 813, 673 S.E.2d 257 (2009).

Defendant's conviction of violating DeKalb County, Ga., Ordinance § 5-2(a), an animal control ordinance, did not bar the defendant's subsequent prosecution for reckless conduct under O.C.G.A. § 16-5-60(b) under double jeopardy principles because each offense required proof of an element that the other offense did not require: the ordinance required proof of ownership of the animal (in this case, a pitbull) and the reckless conduct statute required proof of actual bodily harm being caused (in this case, mauling of a child). Stepp v. State, 286 Ga. 556, 690 S.E.2d 161 (2010).

A DUI accusation must allege harm or danger in order to render reckless conduct a lesser included offense. Barber v. State, 204 Ga. App. 94, 418 S.E.2d 436 (1992).

- When defendant was accused of beating the victim with a pistol and running over the victim with a car, the trial court did not err in refusing to charge on the lesser included offenses of vehicular homicide and reckless conduct. The defendant's theory was that other individuals committed the crime and that the defendant accidentally ran over the victim; thus, the evidence showed either the commission of the offenses as charged or the commission of no offense. Lupoe v. State, 284 Ga. 576, 669 S.E.2d 133 (2008).

Evidence was insufficient to convict the defendant because the state did not show that the defendant's conduct while the two children were under the defendant's supervision constituted criminal negligence supporting the defendant's convictions for second degree cruelty to children and for reckless conduct related to the drowning deaths of the two children as it could not be said that taking a 45-minute phone call in itself constituted a failure to reasonably supervise the children; the defendant confirmed that the children were in an upstairs room playing when the defendant initiated the phone call; and the defendant had told the children they could not go swimming and there was no showing that the children had a propensity to disobey the defendant. Corvi v. State, 296 Ga. 557, 769 S.E.2d 388 (2015).

- Given evidence at trial that the defendant, age 15, was playing with a gun near the back of the defendant's father's head when the defendant shot the defendant's father, the trial court erred in refusing the defendant's request to charge on involuntary manslaughter as a lesser included offense of malice murder, not just as a lesser included offense of felony murder, and appellate counsel was ineffective in failing to make this argument. The "unlawful act" required for involuntary manslaughter could have been reckless conduct under O.C.G.A. § 16-5-60. Seabolt v. Norris, 298 Ga. 583, 783 S.E.2d 913 (2016).

- Trial court did not err in not charging reckless conduct as a lesser included offense of cruelty to children under O.C.G.A. § 16-5-70; if the jury believed the defendant's testimony, there was no conscious disregard of a substantial and unjustifiable risk, and the state's evidence was that the defendant maliciously caused the child's suffering. Banta v. State, 282 Ga. 392, 651 S.E.2d 21 (2007).

When the defendants were charged with first-degree cruelty to children under O.C.G.A. § 16-5-70 on the ground that the children had caused the victim physical and mental pain by binding the victim's arms and legs, the trial court properly refused to charge on the lesser included offense of reckless conduct under O.C.G.A. § 16-5-60(b). Reckless conduct involved bodily harm, not mental pain; furthermore, as the defendants claimed that the defendants had acted out of love to prevent the victim from using drugs, their theory of defense was one of justification, on which the trial court had instructed. Hafez v. State, 290 Ga. App. 800, 660 S.E.2d 787 (2008).

In a shaken baby death, an involuntary manslaughter verdict was not mutually exclusive of a guilty verdict for felony murder/cruelty to children because, consistent with its guilty verdict on the felony murder charge, an offense requiring criminal intent, the jury predicated its involuntary manslaughter verdict on a misdemeanor involving criminal intent, battery or simple battery under O.C.G.A. §§ 16-5-23(a) and16-5-23.1(a), although the jury was also instructed on reckless conduct, a misdemeanor committed by criminal negligence, O.C.G.A. § 16-5-60(b). Drake v. State, 288 Ga. 131, 702 S.E.2d 161 (2010).

- Appellate court rejected the defendant's claim that insufficient evidence with respect to the requisite criminal intent failed to support an aggravated battery conviction as the jury could infer intent by: (1) the defendant's act of twisting the victim's head all the way around to the left and slamming it towards the car floorboard; (2) the fact that the incident occurred during a heated argument that extended over several hours and had previously resulted in physical violence towards the victim; (3) the defendant's refusal to take the victim to a hospital or call the victim's mother after the incident; (4) the defendant's subsequent flight from law enforcement; and (5) evidence of two prior similar transactions admitted against the defendant involving assaults on a previous girlfriend. But, while the aforementioned was also sufficient to support the defendant's reckless conduct conviction, such merged as a matter of fact into the aggravated battery conviction, as the state conceded at the beginning of sentencing, and the trial court erred in failing to so find. Collins v. State, 283 Ga. App. 188, 641 S.E.2d 208 (2007).

Because a charge under O.C.G.A. § 16-5-24(a) for aggravated battery required showings of malice and disfigurement, while the charge under O.C.G.A. § 16-5-60(b) for reckless conduct did not require any more proof beyond showing the defendant shot the victim causing bodily harm, the reckless conduct charge should have merged into the aggravated battery charge as a matter of fact. DeLeon v. State, 289 Ga. 782, 716 S.E.2d 173 (2011).

- Defendant's convictions of involuntary manslaughter while in the commission of a simple battery, aggravated assault, aggravated battery, cruelty to children, and reckless conduct were not mutually exclusive, and the trial court did not err in not merging the nonhomicide counts upon sentencing. Waits v. State, 282 Ga. 1, 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

- Trial court did not err by failing to merge the crimes of reckless driving, O.C.G.A. § 40-6-390, and reckless conduct, O.C.G.A. § 16-5-60, for punishment because the two offenses did not merge for sentencing when §§ 40-6-390 and16-5-60 each had a provision that required proof of a fact that the other did not, and to establish a violation of § 40-6-390, the state only had to prove that the defendant drove the car in a manner exhibiting reckless disregard for the safety of persons or property; reckless conduct requires proof of harm or an actual threat of harm to the bodily safety of another person and does not require that the crime be committed while driving a motor vehicle, but reckless driving does not require that there be an injured or threatened party and instead merely requires that the state prove a general disregard for the safety of persons or property while driving a motor vehicle. Howard v. State, 301 Ga. App. 230, 687 S.E.2d 257 (2009).

- Because defendant's pointing of a firearm placed the victims in reasonable apprehension of immediate violent injury, the felony of aggravated assault, rather than the misdemeanor of intentionally and without legal justification pointing or aiming a gun or pistol at another, whether the gun or pistol was loaded or unloaded, had occurred. Savage v. State, 274 Ga. 692, 558 S.E.2d 701 (2002).

- Evidence that a defendant hit an emergency medical technician who was working on a patient, screamed obscenities, and pulled a pocket knife out and opened the knife was sufficient to support the defendant's convictions for aggravated assault and interference with emergency medical professionals. Because defense witnesses testified that the defendant did not threaten the technician with a knife, there was no evidence to support a charge on reckless conduct in violation of O.C.G.A. § 16-5-60(b). Prince v. State, 306 Ga. App. 604, 702 S.E.2d 785 (2010).

- Defendant's previous conviction for reckless conduct under O.C.G.A. § 16-5-60 did not bar later conviction for aggressive driving under O.C.G.A. § 40-6-397 when both convictions arose out of the same incident, and since conviction for aggressive driving did not require proof of the fact that defendant endangered the bodily safety of the other driver and the other driver's family, while the reckless conduct conviction did not require proof of fact that defendant drove with intent to annoy, harass, intimidate, and injure another; thus, each crime required proof of a fact that the other did not, so neither offense was included in the other so as to violate the substantive bar against double jeopardy of O.C.G.A. § 16-1-7. Winn v. State, 291 Ga. App. 16, 660 S.E.2d 883 (2008).

- Conviction was upheld where the evidence authorized the jury to conclude that by driving recklessly through a residential neighborhood the appellant consciously disregarded the substantial risk that appellant's conduct would endanger the safety of another. Horowitz v. State, 243 Ga. 441, 254 S.E.2d 828 (1979).

- When it was shown that defendant drove on the wrong side of the road, extremely close to where defendant knew county employees were working in a ditch, and the side mirror of defendant's truck struck and seriously injured one of the workers, the evidence was sufficient to find defendant guilty of violating O.C.G.A. § 16-5-60. Cowan v. State, 218 Ga. App. 422, 461 S.E.2d 587 (1995).

- There was no harmful error in a police officer's recitation of the factors that led the officer to initiate a reckless conduct charge against the defendant; the defendant's theory that the defendant had no legal duty to the defendant's nine-month-old and three-year-old children since the defendant did not live with them, despite being their parent, was rejected. Baker v. State, 280 Ga. 822, 633 S.E.2d 541 (2006).

- Evidence sufficient to enable rational trier of fact to find defendant guilty beyond reasonable doubt of theft by taking and recklessly causing harm to or endangering bodily safety of another person. Lucas v. State, 183 Ga. App. 637, 360 S.E.2d 12 (1987).

Evidence was sufficient to support defendant's reckless conduct conviction, where defendant drove a truck toward the victim and slammed on the brakes, stopping so close to the victim that the victim had to jump out of the way for fear that the defendant would not stop. Wofford v. State, 196 Ga. App. 284, 395 S.E.2d 630 (1990).

Evidence of firing a .357 handgun near a person's head, while standing inside a building gripping the person's arm, was sufficient to authorize conviction. McDonald v. State, 224 Ga. App. 411, 481 S.E.2d 1 (1997).

Evidence that following an argument on the basketball court at a local park, the defendant aimed a handgun at the victim and then fired shots into the air as the defendant was driving away was sufficient to support the defendant's conviction of reckless conduct as a lesser-included offense of aggravated assault. Sherrod v. State, 355 Ga. App. 441, 844 S.E.2d 508 (2020).

- Evidence was sufficient to show reckless conduct where the mother allowed her 3-year-old daughter to wander unsupervised for over an hour before the mother began looking for her, after which the daughter was found unconscious in a neighbor's yard, having been attacked by an animal and losing between 20 and 40 percent of her blood. Reyes v. State, 242 Ga. App. 170, 529 S.E.2d 192 (2000).

Trial court properly denied defendant's motion for a directed verdict of acquittal, pursuant to O.C.G.A. § 17-9-1, because there was sufficient evidence to support the convictions for aggravated assault and reckless conduct, in violation of O.C.G.A. §§ 16-5-21(a)(2) and16-5-60(b), respectively; defendant and the codefendants were involved in a physical altercation with two restaurant patrons, and a codefendant's testimony that defendant retrieved a gun and shot the victim was sufficiently repeated by the testimony of other witnesses, who also connected defendant with the shooting pursuant to the corroboration requirement in former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8). Baker v. State, 273 Ga. App. 297, 614 S.E.2d 904 (2005).

- Evidence supported the defendant's conviction for misdemeanor reckless endangerment as the act of leaving the defendant's nine-month old and three-year-old children unsupervised on the upper floor of a two-story home near an unprotected downward flight of stairs was a gross deviation from the standard of care that a reasonable person would exercise and was in conscious disregard of a substantial and unjustifiable risk such that the act endangered the children's safety. Baker v. State, 280 Ga. 822, 633 S.E.2d 541 (2006).

- Evidence supported a defendant's conviction for involuntary manslaughter as there was ample evidence that the state disproved the defendant's accident defense since: (1) the defendant was hurt by the fact that the defendant's significant other had begun a relationship with the victim; (2) the defendant threatened to blow the victim's and the significant other's heads off a few weeks before the shooting; (3) defendant testified that the victim was standing in the defendant's way, that the defendant was searching for a cell phone, and that the defendant pulled out several items, including a gun; (4) a door hit the defendant in the back, causing the gun to discharge into the victim's chest; (5) the defendant testified that the defendant was careless with the gun; and (6) a detective testified that after the detective Mirandized the defendant, the defendant stated that "(the defendant) put a shell in every chamber" and that "(the defendant) fired every shell, every round." Noble v. State, 282 Ga. App. 311, 638 S.E.2d 444 (2006).

Evidence supported the defendant's convictions of aggravated assault, aggravated battery, cruelty to children, and reckless conduct in connection with the death of the 16-month-old victim after: the defendant repeatedly fed the victim tomatoes despite the victim's allergic reactions to the tomatoes; two days before the victim's fatal injuries, the victim had numerous bruises, a black eye, and a split bottom lip; while the victim was in the hospital for the fatal injuries, the defendant repeatedly asked a babysitter to persuade the defendant's five-year-old child to say that the child had taken the victim out of the bathtub; the defendant asked medical personnel whether it could be proven that the victim was shaken; and medical evidence showed that the victim's death was consistent with violent shaking by a person of adult strength. Waits v. State, 282 Ga. 1, 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

Because sufficient direct and circumstantial evidence showed that the defendant, a prior felon wielding a weapon, engaged in a fight with the two victims, fatally wounding one and shooting the other in the arm, and thereafter fled from police, the defendant's convictions for involuntary manslaughter, reckless conduct, fleeing and eluding, and possession of a firearm by a convicted felon were upheld on appeal. Alvin v. State, 287 Ga. App. 350, 651 S.E.2d 489 (2007).

- Evidence was sufficient to find the defendant guilty of two counts of involuntary manslaughter and one count of second degree cruelty to children as the defendant's actions were the proximate cause of the victims' deaths and injuries because a toppled space heater ignited a fire in the victims' bedroom, causing their injuries while the defendant was absent; the defendant knew that space heaters could cause fires; there was sufficient space in the boyfriend's vehicle to fit all four children; and, with the foregoing knowledge, the defendant left the defendant's three children completely unattended for an extended period of time in a combustibles-filled room, sleeping on a mattress that was placed directly on the floor next to a space heater. Johnson v. State, 341 Ga. App. 425, 801 S.E.2d 294 (2017).

- Reckless conduct was established where it was shown that codefendants, who had severe drinking problems in the past, became intoxicated and, in violation of order requiring them to get child care when they intended to drink, placed baby between them in bed, resulting in the baby's death. Bohannon v. State, 230 Ga. App. 829, 498 S.E.2d 316 (1998).

- Defendant's conviction was reversed, where defendant's conduct in accusing the victim of theft and searching the victim did not cause bodily harm to or endanger the bodily safety of the victim, and defendant's action in running over the victim's foot was either an accident or a deliberate attack and did not constitute gross negligence so as to bring the incident within the scope of O.C.G.A. § 16-5-60(b). Miller v. State, 200 Ga. App. 57, 406 S.E.2d 565 (1991).

Acquittal of defendant of aggravated assault charges did not make evidence of reckless conduct any less sufficient; furthermore, even if the acquittal was inconsistent with the conviction, the inconsistency could not be used as an avenue to challenge the conviction because the "inconsistent-verdict rule" has been abolished. Kolokouris v. State, 271 Ga. 597, 523 S.E.2d 311 (1999).

- Alien's conviction for criminal reckless conduct under O.C.G.A. § 16-5-60(b) constituted a crime involving moral turpitude, and thus the alien was properly found removable under 8 U.S.C. § 1227(a)(2)(A)(i); such decision was not subject to judicial review under 8 U.S.C. § 1252(a)(2)(C) since the alien raised no constitutional claims or questions of law. Keungne v. United States AG, 561 F.3d 1281 (11th Cir. 2009).

Jury Instructions

Reckless conduct charge not warranted when firing of gun was not negligent.

- Defendant's battery conviction under O.C.G.A. § 16-5-23.1(b) was supported by evidence that the defendant struck the victim in the eye with the defendant's hand, causing the eye to swell. A charge on the lesser included offense of reckless conduct under O.C.G.A. § 16-5-60(b) was not warranted because there was no evidence that the defendant fired a gun negligently; the only evidence was that the defendant fired several shots at the victim. Tiller v. State, 314 Ga. App. 472, 724 S.E.2d 397 (2012).

- Refusal to give a requested charge on reckless conduct, as a lesser included offense of aggravated assault, was not error where defendant admitted firing a gun with the intent to scare the victim, although defendant testified that there was no intent to hit the victim, since using a deadly weapon to commit an act which places another in reasonable apprehension of immediately receiving a violent injury amounts to an aggravated assault, absent justification. The act testified to by defendant was either justified as an act of self-defense or constituted a felony. Riley v. State, 181 Ga. App. 667, 353 S.E.2d 598 (1987); Bright v. State, 238 Ga. App. 876, 520 S.E.2d 48 (1999).

Requested charge of reckless conduct as a lesser included offense was properly denied where the evidence was that defendant was guilty of two offenses of aggravated assault, as averred, or was not guilty of any crime under the particular indictment counts. Morris v. State, 228 Ga. App. 90, 491 S.E.2d 190 (1997).

Refusal to instruct on reckless conduct was proper where the evidence presented only two possibilities: either defendant was unarmed and never fired a shot or defendant committed aggravated assault by walking toward some men and deliberately opening fire. Carter v. State, 228 Ga. App. 403, 492 S.E.2d 259 (1997).

Refusal to give a requested charge on reckless conduct as a lesser included offense of aggravated assault was not error where evidence showed that defendant either was unarmed and never fired a shot or defendant committed aggravated assault by intentionally firing a gun toward the victims. Hy v. State, 232 Ga. App. 247, 501 S.E.2d 583 (1998).

When the evidence indicated that the defendant might have merely fired a gun up into the air while the police were chasing the car in which the defendant was riding, the trial court erred in refusing to charge the jury on the offense of reckless conduct as a lesser included offense of aggravated assault by attempting to injure. Shaw v. State, 238 Ga. App. 757, 519 S.E.2d 486 (1999).

When the evidence, including the defendant's own admissions, clearly established that the defendant repeatedly fired a weapon with the intention of scaring the victims, even if the defendant did not intend to hit them, the evidence established aggravated assault, and there was no error in the failure to give an instruction on reckless conduct. Huguley v. State, 242 Ga. App. 645, 529 S.E.2d 915 (2000).

It was not error to refuse to give the requested charge on reckless conduct as a lesser included offense where there was no evidence that defendant was simply negligently handling the knife when swinging it at the victims, using profane language, and telling them they had "messed up" while lunging at them with the knife. Merneigh v. State, 242 Ga. App. 735, 531 S.E.2d 152 (2000).

Defendant's requested charge of reckless conduct as a lesser included offense of aggravated assault was properly denied since the only testimony was that in pointing the pistol at the victim, the defendant did so intentionally, not "consciously disregarding a substantial and unjustifiable risk that his act or omission would cause harm or endanger victim's safety." Stobbart v. State, 272 Ga. 608, 533 S.E.2d 379 (2000).

Trial court did not err in refusing a request to instruct the jury on the lesser included offense of reckless conduct, in violation of O.C.G.A. § 16-5-60, in a criminal trial on a charge of aggravated assault, in violation of O.C.G.A. § 16-5-21(a)(2), as the essential elements of the assault charge were all shown by the evidence; the defendant's firing of a gun into a parking lot that was crowded, and in the direction of the victim, was not criminal negligence that would have supported a reckless conduct charge, but rather, was deemed intentional. Thompson v. State, 277 Ga. App. 323, 626 S.E.2d 825 (2006).

After threatening to kill the victim, because the defendant's actions in continuing to drive away, as the victim was caught on the outside of the car screaming, supported the crime of either aggravated or simple assault, and not simple negligence, the trial court did not err in rejecting a reckless conduct instruction. Martin v. State, 283 Ga. App. 652, 642 S.E.2d 340 (2007).

Because the evidence showed that defendant committed an assault with intent and a deadly weapon, the crime constituted an aggravated assault under O.C.G.A. § 16-5-21(a)(2); therefore, a charge on the lesser-included offenses of simple assault or reckless conduct under O.C.G.A. §§ 16-5-20(a)(2) and16-5-60(b) was not warranted. Paul v. State, 296 Ga. App. 6, 673 S.E.2d 551 (2009).

Defendant admitted firing a gun to frighten the victims, but asserted the affirmative defense of justification. The defendant was not entitled to a jury charge on reckless conduct as a lesser included offense of the charged offense of aggravated assault as the evidence established either the commission of an aggravated assault, or no offense at all. Hudson v. State, 296 Ga. App. 692, 675 S.E.2d 578 (2009).

Because the defendant drove the van and struck and injured the victim, the state charged the defendant with aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury, and because the offense of reckless conduct would not show a less culpable mental state than that which was required to establish the commission of aggravated assault charged, a charge on reckless conduct was not warranted. Patterson v. State, 332 Ga. App. 221, 770 S.E.2d 62 (2015), aff'd, 299 Ga. 491, 789 S.E.2d 175 (2016).

Defendant's conviction for aggravated assault with an object under O.C.G.A. § 16-5-21(b)(2) with regard to pinning the victim to a house with a vehicle was affirmed because the defendant was not entitled to jury instructions on the lesser included crimes of reckless conduct and reckless driving since the base crime of simple assault under O.C.G.A. § 16-5-20(a)(2) did not require a specific intent to cause the victim to be apprehensive of receiving a violent injury. Patterson v. State, 299 Ga. 491, 789 S.E.2d 175 (2016).

Trial court erred in failing to charge the jury on the reckless conduct as a lesser included offense to aggravated assault with a deadly weapon based on testimony regarding the struggle between the defendant and others, which could have permitted the jury to find that the defendant pointed the gun at the victim accidentally and, therefore, endanger the victim by consciously disregarding a substantial and unjustifiable risk that the defendant's act would cause harm to the victim or endanger the victim's safety. Harris v. State, 342 Ga. App. 829, 805 S.E.2d 281 (2017).

Aggravated assault count of the indictment merged with the malice murder conviction, and the felony murder count, predicated in part on aggravated assault, was vacated by operation of law; thus, the claim of error that the trial court erred by refusing to charge the jury on reckless conduct as a lesser-included offense of aggravated assault was moot when the defendant was not convicted of aggravated assault. McCluskey v. State, 307 Ga. 740, 838 S.E.2d 270 (2020).

Sequential charges on aggravated assault and reckless battery were proper since the jury's finding that defendant committed aggravated assault required a finding of an intentional infliction of injury, which precluded the element of criminal negligence in reckless conduct. Sheats v. State, 210 Ga. App. 622, 436 S.E.2d 796 (1993).

Reckless conduct charge was not warranted in a prosecution for aggravated assault because there was no evidence that defendant's brandishing of a knife in the presence of named victims was only criminally negligent rather than intentional. Marion v. State, 224 Ga. App. 413, 480 S.E.2d 869 (1997).

Reckless conduct charge was not warranted in a prosecution for cruelty to children in the first degree since the evidence showed that defendant intended the actions and intended to cause pain to the victim. Allen v. State, 247 Ga. App. 10, 543 S.E.2d 45 (2000).

- Because the instructions given by the trial court adequately expressed the requirement that the children's deaths and/or injuries had to have been the proximate result of the alleged criminal acts of involuntary manslaughter in the commission of reckless conduct and cruelty to children in the second degree, the trial court did not err in declining to give the defendant's additional requested instructions on proximate cause. Johnson v. State, 341 Ga. App. 425, 801 S.E.2d 294 (2017).

- In a prosecution for felony murder and arson, the trial court erred in refusing to grant defendant's charge on reckless conduct where despite defendant's concession that defendant intentionally set the fire, there was sufficient evidence from which the jury could conclude that the defendant set the fire without intending to burn down the motel building. Reinhardt v. State, 263 Ga. 113, 428 S.E.2d 333 (1993), overruled on other grounds, Vergara v. State, 283 Ga. 175, 657 S.E.2d 863 (2008).

- Given that the state adduced sufficient evidence establishing all the elements of the offense of felony obstruction, in violation of O.C.G.A. § 16-10-24, the trial court did not err in refusing the defendant's request to charge on the lesser-included offense of reckless conduct. Helton v. State, 284 Ga. App. 777, 644 S.E.2d 896 (2007).

- Trial court did not plainly err in failing to instruct the jury on involuntary manslaughter based on reckless conduct as a lesser included offense of the murder charges because the defendant's possession of cocaine with intent to distribute, the defendant's aggravated assault of the victims as part of the defendant's effort to regain the drugs, and the defendant's possession of the gun as a convicted felon were themselves felonies; and to support a jury charge on involuntary manslaughter, the unlawful act underlying the unintentional death of the victim had to be an act other than a felony. Hood v. State, 303 Ga. 420, 811 S.E.2d 392 (2018).

- Trial court did not err in refusing to charge the jury on reckless conduct in defendant's trial for felony murder where the record was devoid of evidence of reckless conduct. Salyers v. State, 276 Ga. 568, 580 S.E.2d 240 (2003).

In the defendant's prosecution for two counts of aggravated assault, the trial court properly refused to charge the jury on the lesser included offense of reckless conduct under O.C.G.A. § 16-5-60 because no evidence was presented that the defendant acted negligently rather than intentionally when the defendant fired a gun after a confrontation with the victims. Cain v. State, 288 Ga. App. 535, 654 S.E.2d 456 (2007).

In the defendant's trial on a charge of aggravated assault under O.C.G.A. § 16-5-21(a), the trial court did not err in failing to instruct the jury on reckless conduct under O.C.G.A. § 16-5-60(b) because the latter was not a lesser-included offense of the former; while both offenses proscribed the same general conduct, i.e., subjecting another to actual injury or the possibility of injury, aggravated assault required proof that the forbidden act was intentional, while in the case of reckless conduct, the forbidden act is the product of criminal negligence. Chambers v. State, 308 Ga. App. 748, 708 S.E.2d 651 (2011).

Defendant was not entitled to a jury charge on the misdemeanors of reckless conduct, O.C.G.A. § 16-5-60(b), as a lesser included offense of the felony counts of aggravated assault because, although the defendant relied upon evidence that the defendant was intoxicated, the defendant cited no evidence that the defendant's intoxicated state was involuntary or that the intoxication resulted in any permanent brain function alteration. Dailey v. State, 313 Ga. App. 809, 723 S.E.2d 43 (2012), cert. denied, No. S12C0969, 2012 Ga. LEXIS 551 (Ga. 2012).

Trial court erred in failing to instruct the jury on simple battery and reckless conduct as lesser-included offenses of malice murder after the jury heard evidence that the victim was left with bruises and hemorrhages on the victim's neck and face. Allaben v. State, 299 Ga. 253, 787 S.E.2d 711 (2016).

Requested jury instruction on involuntary manslaughter was properly denied because defendant's conduct in producing and displaying a loaded revolver in close proximity to defendant's victim, who allegedly was under the influence of drugs, and the victim's young child, with defendant's finger inside the trigger guard while defendant was watching the road and trying to drive, constituted the crime of crime of reckless conduct under O.C.G.A. § 16-5-60(b). Reed v. State, 279 Ga. 81, 610 S.E.2d 35 (2005).

Trial court's jury instructions in defendant's criminal trial on multiple charges arising out of a domestic dispute were proper, as: (1) there was no requirement that the jury be instructed on the element of assault (O.C.G.A. § 16-5-20) in order to be properly instructed on the crime of aggravated assault (O.C.G.A. § 16-5-21); (2) the methods of committing an aggravated battery, pursuant to O.C.G.A. § 16-5-24(a), were properly defined based on the methods asserted in the indictment; (3) there was no support for a requested charge on the lesser included offense of reckless conduct, pursuant to O.C.G.A. § 16-5-60(b); and (4) there was no possibility of a lesser included conviction for false imprisonment (O.C.G.A. § 16-5-41), such that instruction only on the indicted offense of kidnapping (O.C.G.A. § 16-5-40) was proper. Brown v. State, 275 Ga. App. 99, 619 S.E.2d 789 (2005).

Trial court did not err by failing to give the defendant's requested charge on the lesser included offense of involuntary manslaughter, O.C.G.A. § 16-5-3, because the defendant's admitted act of purposefully putting a gun to the fearful victim's head and pulling the trigger constituted the felony offense of aggravated assault, O.C.G.A. § 16-5-21, not reckless conduct, O.C.G.A. § 16-5-60(b); the defendant's testimony that the victim began crying when the victim saw the gun provided evidence that the victim perceived the gun to be a loaded weapon that could be used to inflict a violent injury, which was a reasonable perception, and the jury's verdict of guilty on the felony murder charge established the existence of all the elements of the underlying felony offense of aggravated assault. Jones v. State, 289 Ga. 145, 710 S.E.2d 127 (2011).

- Trial court did not commit reversible error in failing to give, sua sponte, a jury charge on justification because there was no evidence to support such a charge; contrary to the defendant's assertions in the defendant's brief, at no time did the defendant testify that the defendant accelerated to 103 mph because the defendant had no safer option. Jones v. State, 315 Ga. App. 688, 727 S.E.2d 512 (2012).

- In a felony murder and cruelty to a person age 65 or older case, trial counsel was not ineffective for failing to submit jury instructions on involuntary manslaughter and reckless conduct as counsel's theory of the case was that the victim's death was the result of an accident because there was no conclusive evidence that the defendant knew that the daycare van did not pick up the victim or that it was closed; the defendant denied intentionally locking the victim out of the house; counsel's whole focus was on a not guilty strategy, and counsel sought to avoid admitting even to any negligent, much less reckless, intent; and counsel's decision to pursue an "all or nothing" defense did not fall below a reasonable standard of attorney conduct. Smith v. State, 301 Ga. 348, 801 S.E.2d 18 (2017).

In a murder case, the trial court did not err when the court failed to give charges related to involuntary manslaughter because, according to the defendant's testimony at trial, the defendant intentionally pointed a gun at the victim's leg prior to the gun going off during a subsequent struggle with the victim; the record supported the crime of aggravated assault inasmuch as the defendant intentionally pointed a gun at the victim, eliminating any entitlement to charges of involuntary manslaughter and pointing a gun; and the defendant was not entitled to charges on involuntary manslaughter and reckless conduct since the defendant approached the victim with an intent to fight and intentionally pointed a gun at the victim. Overton v. State, 305 Ga. 597, 825 S.E.2d 159 (2019).

- Trial court did not err when the court refused to charge the jury on simple assault and reckless conduct as lesser included offenses of aggravated assault because the defendant failed to raise a question of fact as to whether the defendant assaulted the victim with a gun and there was no evidence suggesting that the gun went off accidentally. Johnson v. State, 320 Ga. App. 161, 739 S.E.2d 469 (2013).

When the defendant was convicted of malice murder, the trial court did not err in failing to instruct the jury on the lesser-included offense of reckless conduct as there was no evidence that dropping the victim's body into the brush pile caused the victim's death as the defendant inflicted the fatal injuries before the victim was moved. Collett v. State, 305 Ga. 853, 828 S.E.2d 362 (2019).

- Trial court did not err by failing to include reckless conduct on the verdict form as a lesser-included offense of felony murder because a separate reckless conduct option was not required to be on the verdict form since there was no evidence of reckless conduct other than that which directly related to the death of the victim; thus, the reckless conduct charge had to be in the context of involuntary manslaughter. Banks v. State, 329 Ga. App. 174, 764 S.E.2d 187 (2014).

There is no restriction against carrying an unloaded shotgun in a vehicle through this state. 1970 Op. Att'y Gen. No. U70-30.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 122.

- 65A C.J.S., Negligence, § 1029 et seq.

- Contributory negligence or assumption of risk of one injured by firearm or air gun discharged by another, 25 A.L.R.3d 518.

Liability for injury or death of minor or other incompetent inflicted upon himself by gun made available by defendant, 75 A.L.R.3d 825.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

Transmission or risk of transmission of human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS) as basis for prosecution or sentencing in criminal or military discipline case, 13 A.L.R.5th 628.

Parents' criminal liability for failure to provide medical attention to their children, 118 A.L.R.5th 253.