Kolokouris was charged with two counts of aggravated assault and one count of reckless conduct for an incident in which he shot at two minors at a convenience store. A jury found Kolokouris not guilty of the aggravated assault charges, but found him guilty of reckless conduct. He was sentenced to twelve months incarceration, with ten days to serve in confinement and the balance on probation, and was assessed a $1,000 fine. He now appeals, challenging the constitutionality of the reckless conduct statute, OCGA § 16-5-60 (b).
Construed to support the verdict, the evidence showed that at approximately 4:00 on a July afternoon, Kolokouris, an off-duty jailer, drove up to a gas station convenience store and observed two minors, one age fifteen, one thirteen, outside the store, near some propane gas tanks at the side of the store. They had been drinking from the water spigot at the side of the store, had played there for some minutes, and were preparing to leave. As Kolokouris entered the store, he saw the two youths walk toward the front door of the store, with one young man holding what appeared to be a pistol; in fact, the only “weapons” the youths had were B.B. guns, and they were walking around the front of the building to return home. Upon entering the store, Kolokouris drew his pistol and fired three shots through the store’s front window at the youths, wounding one in the neck. A customer was at the gasoline pumps fueling his vehicle but was not injured.
1. Kolokouris contends that the reckless conduct statute, ÚCGA § 16-5-60 (b), as applied to his case, is unconstitutionally vague, and that its application violates his right to bear arms found in the Second Amendment to the United States Constitution and in Article I, Section I, Paragraph VIII, of the Georgia Constitution of 1983. These arguments were not raised until his motion for new trial, and his amended motion for new trial, respectively.
Challenges to the constitutionality of a statute “ ‘must be made at the first opportunity, and it is too late to raise such question after a guilty verdict has been returned by the jury.’ [Cit.]”
Lacey v. State,
2. Kolokouris urges that the evidence was insufficient to sustain a conviction of reckless conduct, contending that his actions were deemed justifiable by the jury, as is evidenced by his acquittal on the aggravated assault charges.
That the jury acquitted appellant of the aggravated assault charge [s] does not make the evidence of [reckless conduct] any less sufficient; furthermore, even if the acquittal [s] were inconsistent with the conviction, the inconsistency cannot be used as an avenue to challenge the conviction since the “inconsistent-verdict rule” has been abolished in this State. Milam v. State,255 Ga. 560 (2) (341 SE2d 216 ) (1986). Cf. Dumas v. State,266 Ga. 797 (2) (471 SE2d 508 ) (1996).
Metts v. State,
OCGA § 16-5-60 (b) provides:
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.
It is unquestioned that Kolokouris caused bodily harm to one of the victims and endangered the bodily safety of the other. However, he argues that he did not have the requisite state of mind, as he acted intentionally, deliberately trying to kill the victims, rather
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than acting with criminal negligence, as required by OCGA § 16-5-60 (b), and he cites
Dunagan v. State,
3. Both victims are African-Americans; Kolokouris is Caucasian. On direct examination, Kolokouris was asked by his counsel whether it mattered to him what the color of the victims’ skin was, and whether he had any prejudice or bias at the time of the shooting, and he responded negatively to both questions. In rebuttal, the trial court allowed the State to present the testimony of a former girlfriend who testified that Kolokouris expressed racist views towards African-Americans eight or nine years before the shooting. 1
Kolokouris contends there was no evidence that the shooting was racially motivated, but race was a possible motive that he himself introduced. His direct testimony denying racial bias as a possible motive made relevant his former girlfriend’s testimony rebutting the explanation Kolokouris desired that the jury accept: that racial bias was no part of his reason for shooting at the victims. See
Smith v. State,
Certainly racial bias is an evidentiary matter that should be presented to a jury with great care. However, when relevant, the trial court has the discretion to admit such evidence through proper questioning. See OCGA § 24-2-1;
Mitchell v. State,
4. Kolokouris sought to introduce evidence that one of the victims was a member of a street gang, citing
Chandler v. State,
There was no error. Mere membership in a gang is not a specific act of violence. Further, the victim’s character is rarely relevant for any purpose in a criminal proceeding. OCGA § 24-2-2;
Johnson v. State,
Judgment affirmed.
Notes
The court also ruled that, although Kolokouris may have, through cross-examination of his former girlfriend, opened the door to other matters concerning his past behavior and expressed attitudes, the testimony of his former girlfriend would be confined to rebuttal of his direct testimony.