Michael Howard appeals the separate sentences 1 imposed for his convictions of reckless driving and reckless conduct. Howard contends the trial court erred by failing to merge all three counts into a single conviction of reckless driving, because each arose from the same car chase, a single transaction, each conviction rested on the same evidence, and reckless conduct is itself an element of reckless driving, thereby necessitating merger of the charges. For the reasons that follow, we find no reversible error and affirm.
We review merger issues under OCGA § 16-1-7 (a)
2
de novo.
Cutter v. State,
Next, he drove into a mobile home park and sped to the end, where he narrowly avoided hitting a young child. Howard jumped out of his car while it was still moving, where the car nearly hit another child playing in the yard. Then, Howard fled on foot and scaled a barbed wire fence, before being captured by police.
*231 The first two counts of the indictment alleged that Howard committed aggravated assaults against the two children “with an object which when used offensively against another is likely to cause serious bodily injury, to wit: a motor vehicle.” He was also indicted for reckless driving in that on the same day he “did drive a motor vehicle in a reckless manner, to wit: above the posted speed limit in a residential area and ran a red light failing to yield to oncoming traffic, in a reckless disregard for the safety of persons and property.” Although convicting him of reckless driving, the jury did not find Howard guilty of the aggravated assaults, but found him guilty instead of two counts of the lesser included offense of reckless conduct.
Georgia courts now apply the required evidence test.
Drinkard v. Walker,
The thrust of Howard’s argument is that he cannot be punished twice for the same offense in light of the substantive bar against double jeopardy.
The prohibition against double jeopardy has two separate aspects. The first, embodied by OCGA § 16-1-8, amounts to a prohibition against successive prosecutions for the same offense. This has been referred to as the procedural bar against double jeopardy. The second, embodied by OCGA § 16-1-7, amounts to a prohibition against successive punishments for the same offense. This has been referred to as the substantive bar against double jeopardy.
(Citation omitted; emphasis in original.)
McClure v. State,
In this case, reckless conduct under OCGA § 16-5-60 (b) is committed by
[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 another person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.
(Emphasis supplied.) Reckless driving, however, is defined by *232 OCGA § 40-6-390 as driving “any vehicle in reckless disregard for the safety of persons or property.”
Thus, 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. On the other hand, reckless driving does not require that there be an injured or threatened party, but instead merely requires that the State prove a general disregard for the safety of persons or property while driving a motor vehicle. To establish a violation of OCGA § 40-6-390, the State need only prove that the defendant drove his car in a manner exhibiting reckless disregard for the safety of persons or property.
Putman v. State,
Therefore, because each Code section has a provision that requires proof of a fact which the other does not,
Drinkard,
supra,
Howard’s reliance on
Bell v. State,
Accordingly, the trial court did not err by not merging the crimes for punishment.
Judgment affirmed.
Notes
Howard does not challenge his convictions of these offenses, and he does not challenge his convictions and sentences imposed for fleeing from a police officer, striking a fixed object, noise violation, obstructing an officer, and driving on a suspended license.
When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (D One crime is included in the other; or (2)
The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.