Lead Opinion
This Court granted certiorari to the Court of Appeals in Patterson v. State,
Ricky Patterson lived in a mobile home with his girlfriend, Wanda Bartley. While her adult son, Nathaniel Silvers, was present, Patterson and Bartley argued, and Bartley and Silvers urged Patterson to leave the home. When Patterson, Bartley, and Silvers were outside the home, Patterson went to his vehicle, put it into gear, revved the engine, and rapidly drove directly toward the end of the home, near Silvers, who became pinned against the side of the home by the vehicle; Silvers suffered internal injuries. Further facts can be found in the opinion of the Court of Appeals. Patterson, supra.
The issues before this Court on certiorari involve Patterson’s conviction on Count 4 of the indictment, in which he was charged with “aggravated assault with an object,” as that crime is set forth in present OCGA § 16-5-21 (b) (2).
did commit an act which placed another person, to wit: Nathaniel Lane Silvers, in reasonable apprehension of immediately receiving a violent injury, said assault having been committed with an object which when used offensively against a person, is likely to and actually does result in serious bodily injury, by driving a motor vehicle in the direction of Nathaniel Silvers, striking Mr. Silvers with said vehicle, and pinning him up against a mobile home with said vehicle.
As this Court has noted:
Aggravated assault has two elements: (1) commission of a simple assault as defined by OCGA § 16-5-20 [(a)] [2 ]; and (2) the presence of one of three statutory aggravators. See OCGA § 16-5-21 [(b)]. The statutory aggravators are: (1) intent to rape, rob, or murder; (2) use of a deadly weapon or an offensive weapon likely to or actually resulting in serious bodily injury; [3 ] and (3) shooting towards people from a vehicle without justification. SeeOCGA § 16-5-21 [(b)] (1)-(3).
Guyse v. State,
Patterson contends that as to Count 4, he was entitled to jury instructions on the lesser included crimes of reckless conduct, as set forth in OCGA § 16-5-60 (b),
The Court of Appeals was correct in so stating. This Court has on multiple occasions noted that the crime of simple assault as set forth in OCGA § 16-5-20 (a) (2), does not require proof of specific intent. “[T]he State need only prove that the defendant intended to do the act that placed another in reasonable apprehension of immediate violent injury.." Guyse, supra at 577 (2). See also Stobbart v. State,
Nor have our repeated statements regarding intent under OCGA § 16-5-20 (a) (2) been made by happenstance. Rather, when squarely faced with a claim that a specific intent to cause apprehension is required when the defendant is alleged to have committed aggravated assault based on the victim’s reasonable apprehension of harm under OCGA § 16-5-20 (a) (2), this Court has squarely stated that “[a]ll that
simple assault was defined as “an attempt to commit a violent injury on another.” Code Ann. § 26-1301 (nowOCGA § 16-5-20 (a) (1)). Aggravated assault then was defined as an assault with intent to murder, rape, or rob. Code Ann. § 26-1302 (a) (1) (now OCGA § 16-5-21 [(b)] (1)). There was no analog to OCGA §§ 16-5-20 (a) (2) or 21 [(b)] (2). Thus, pointing a firearm at another without legal justification and without intent to murder, rape, or rob was always a misdemeanor, whether or not the victim was apprehensive of being injured. The 1968 codification included Code Ann. §§ 26-1301 (a) (2) and 26-1302 (a) (2), now codified as OCGA §§ 16-5-20 (a) (2) and 21 [(b)] (2), and established that the use of a deadly weapon in such manner as to place another in reasonable apprehension of immediate violent injury constitutes the felony of aggravated assault.
Id. (Emphasis supplied.) Thus, Rhodes stands for the proposition that OCGA § 16-5-20 (a) (2) means simply what it says; a person commits simple assault by committing “an act which places another in reasonable apprehension of immediately receiving a violent injury.”
Thus, the Court of Appeals was correct in determining that, as to Count 4,
the State was required to show that Patterson intended to drive his van in the direction of Silvers, that Silvers was placed in reasonable apprehension of injury, and that the*496 van was an object that when used offensively against a person, [9 ] was likely to or actually did result in serious bodily injury The State was not required to show an intent to injure or that Patterson intended to place Silvers in reasonable apprehension of injury.
Patterson, supra at 226 (2).
Judgment affirmed.
Notes
At the time of Patterson’s indictment in February 2012, what is now OCGA § 16-5-21 (b) was codified as OCGA § 16-5-21 (a). The pertinent provision reads:
A person commits the offense of aggravated assault when he or she assaults:
(1) With intent to murder, to rape, or to rob;
(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury [.]
See Ga. L. 2014, p. 441.
OCGA § 16-5-20 (a) reads:
A person commits the offense of simple assault when he or she either:
(1) Attempts to commit a violent injury to the person of another; or
(2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.
It is uncontroverted that a motor vehicle may be used offensively against a person within the meaning of present OCGA § 16-5-21 (b). Guyse v. State,
OCGA § 16-5-60 (b) reads:
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*493 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.
OCGA § 40-6-390 (a) reads:
Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.
OCGA § 16-1-6 reads:
An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when:
(1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or
(2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.
In Rhodes, this Court noted that the defendant’s “own testimony (‘I was showing the gun to him so he would leave me alone.’) revealed that his purpose in pointing the weapon was to
Although this Court’s opinion in Rhodes was written 19 years after the 1968 passage of what is now OCGA § 16-5-20 (a) (2), beginning shortly after the enactment of OCGA § 16-5-20 (a) (2), the Court of Appeals regularly decided cases also applying the statute as written, i.e., without grafting into the crime of simple assault the additional element that the defendant must intend that his or her act place another in reasonable apprehension of immediately receiving a violent injury. See Johnson v. State,
We note that the dissent raises certain hypothetical scenarios that it contends could result in the commission of aggravated assault through ordinary behavior, but does so without any acknowledgment of this element of the offense. Any consideration of the meaning of the language “when used offensively against a person” as stated in current OCGA § 16-5-21 (b) (2) is beyond the scope of this Court’s grant of certiorari.
Given our answer to the first question this Court posed on certiorari, we need not address the second question.
Dissenting Opinion
dissenting.
Enacted in 1968, OCGA § 16-5-20 (a) (2) provides that an “act which places another in reasonable apprehension of immediately receiving a violent injury” is a simple assault. The statute says nothing expressly about the intent with which such an act must be done, and so, it was left for the courts to discern the requisite state of mind. When read in context as an ordinary reader would do, the statute most naturally and reasonably is understood to require a specific intent, either to inflict injury or to arouse an apprehension of injury. But beginning with Dunagan v. State,
1. Ricky Patterson and Wanda Bartley were involved romantically, and they lived together in a mobile home near Dalton. On November 1, 2011, Patterson returned from work to find that Bartley had been remodeling the home without him and drinking beer with
Patterson was indicted, tried by a Whitfield County jury, and convicted of aggravated assault for having driven a motor vehicle toward Silvers, causing Silvers to apprehend injury.
After he was convicted and sentenced, Patterson appealed, contending that the trial court erred when it refused to charge the jury on reckless conduct and reckless driving. In Patterson v. State,
2. This case concerns the meaning of OCGA § 16-5-20 (a) (2), and so, our analysis ought to begin with the familiar and settled principles that inform our consideration of statutory meaning. “[A] statute draws its meaning from its text,” Zaldivar v. Prickett,
(a) At common law, a criminal assault was an attempted battery, see Brundage v. United States, 365 F2d 616, 619 (10th Cir. 1966), that is, “an attempt or offer to beat another, without touching him.” 3 William Blackstone, Commentaries on the Laws of England 120 (1st ed. 1768).
The definition of an assault [at common law] is an offer or attempt by force to do a corporal injury to another; as if one person strike at another with his hands, or with a stick, and misses him; for, if the other be stricken, it is a battery, which is an offence of a higher grade. Or if he shake his fist at another, or present a gun, or other weapon, within such distance as that a hurt might be given; or drawing a sword, and brandishing it in a menacing manner. But it is essential*500 to constitute an assault, that an intent to do some injury should be coupled with the act; and that intent should be to do a corporal hurt to another.
United States v. Hand,
In time, the law of torts came to recognize another variety of assault, one that involves an act that places another in apprehension of an imminent injury As early as 1934, the Restatement (First) of Torts acknowledged this kind of assault, noting that “[a]n act other than the mere speaking of words which, directly or indirectly, is a legal cause of putting another in apprehension of an immediate and harmful or offensive contact makes the actor liable to the other for the apprehension so caused.” Restatement (First) of Torts § 21 (1) (1934). Dean Prosser recognized the same sort of assault in his seminal treatise on the law of torts, although he understood the assault ordinarily to require that the apprehension of injury be a reasonable one:
Any act of such a nature as to excite an apprehension of a battery may constitute an assault. It is an assault to shake a fist under another’s nose, to aim or strike at him with a weapon, or to hold it in a threatening position, to rise or advance to strike another, to surround him with a display of force, to chase him in a hostile manner, or to lean over a woman’s bed and make indecent proposals, in such a way as to put her in fear.
Since the interest involved is the mental one of apprehension of contact, it should follow that the plaintiff must be aware of the defendant’s act at the time, and that it is not an assault to aim a gun at one who does not discover it. Apprehension is not the same thing as fear, and the plaintiff is not deprived of his action merely because he is too courageous to be frightened or intimidated. . . .
At the same time, the courts have been reluctant to protect extremely timid individuals from exaggerated fears of contact, and seem to have required quite uniformly that the apprehension be one which would normally be aroused in the mind of a reasonable person. Perhaps if the defendant has knowledge of the plaintiff’s peculiar and abnormal timidity, and intends to act upon it, there may be liability, but at least in the absence of such knowledge, there is no assault. Thus it is usually held that the defendant’s act must*501 amount to an offer to use force, and there must be an apparent ability and opportunity to carry out the threat immediately. . . .
William L. Prosser, The Law of Torts § 10 (2nd ed. 1955) (footnotes omitted). In 1965, the Restatement (Second) of Torts also acknowledged that an act that places another in “imminent apprehension” of “a harmful or offensive contact” may form the basis for liability in tort for an assault. Restatement (Second) of Torts § 21 (1) (1965). At least by the late 1960s, the tort of assault by putting another in apprehension of an imminent injury appears to have been generally accepted. See Madden v. D.C. Transit System,
At that time, however, it was equally accepted in the law of torts that such an assault requires a specific intent, either to actually inflict injury, or to arouse an apprehension of injury. The Restatement (First) recognized that assault by an act that causes another to apprehend injury necessarily requires that “the actor intends to inflict a harmful or offensive contact upon the other or a third person or to put the other or a third person in apprehension thereof.” Restatement (First) of Torts § 21 (1) (a). The Restatement (Second) likewise conditioned liability in tort upon one having “act[ed] intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact.” Restatement (Second) of Torts § 21 (1) (a). Each of the Restatements recognized that, in the absence of such a specific intent, there was no liability for assault, even though “the act involves an unreasonable risk of causing [an imminent apprehension of injury] and, therefore, would be negligent or reckless if the risk threatened bodily harm.” Restatement (Second) of Torts § 21 (2). Accord Restatement (First) of Torts § 21 (2). Dean Prosser agreed, explaining:
There is, properly speaking, no such thing as a negligent assault. But the intent need not necessarily be to inflict physical injury, and it is enough that there is an intent to arouse apprehension. Thus it is an assault to fire a gun not aimed at the plaintiff for the purpose of frightening him, or to point it at him when the defendant knows that it is unloaded, and the plaintiff does not.
Prosser, supra, at § 10 (footnotes omitted).
As the notion of an assault by an act that places another in apprehension of imminent injury gained acceptance in the law of torts, it made its way into the criminal law. See United States v. Rizzo, 409 F2d 400, 403 (7th Cir. 1969), disapproved on other grounds by
The general acceptance of these ideas as a matter of criminal law was not limited to the federal courts. In 1962, these principles were incorporated into the Model Penal Code, which provided that one committed simple assault by “attempting] by physical menace to put another in fear of imminent serious bodily injury” Model Penal Code § 211.1 (1) (c). Moreover, by the late 1960s, mostAmericanjurisdictions had come to recognize criminal assault by an act arousing apprehension of imminent injury, as well as the traditional sort of criminal assault involving an attempt to inflict injury See Bell, 505 F2d at 540 (citing criminal law treatises published in the 1930s, 1940s, 1950s, and 1960s). In those jurisdictions, a criminal assault “consisted either of an actual attempt to commit a battery or of an intentional subjection of another to reasonable apprehension of receiving a battery” Commentaries to the Model Penal Code, Part II, § 211.1, comment (1) (b) (1980). As one modern commentator has noted:
It is sometimes stated that this type of assault is committed by an act (or by an unlawful act) which reasonably causes another to fear immediate bodily harm. This statement is not quite accurate, however, for one cannot (in those jurisdictions which have extended the tort concept of assault to criminal assault) commit a criminal assault by negligently or even recklessly or illegally acting in such a way (as*503 with a gun or a car) as to cause another person to become apprehensive of being struck. There must be an actual intention to cause apprehension, unless there exists the morally worse intention to cause bodily harm.
Wayne R. LaFave, 2 Substantive Criminal Law § 16.3 (b) (2nd ed. 2003) (footnotes omitted). See also 6ACJS Assault § 82 (“Generally, an intent to injure or to cause a reasonable apprehension of bodily injury is an essential element of the offense.” (Footnote omitted)); 6 AmJur2d Assault and Battery § 17 (“[Ajssault of the intentional frightening variety is a specific intent crime. It must be proved that the defendant intended to create an apprehension in the victim by threatening conduct.” (Footnotes omitted)).
These trends played out in Georgia as well. In 1833, the General Assembly enacted a Penal Code that defined assault as “an attempt to commit a violent injury on the person of another,” Ga. L. 1833, p. 153, consistent with the notion of a criminal assault at common law in England. For the next 135 years, our statutory law defined criminal assault exclusively in those terms. See, e.g., Code of 1863, § 4256; Code of 1868, § 4291; Code of 1873, § 4357; Code of 1882, § 4357; Penal Code of 1895, § 95; Penal Code of 1910, § 95; Code of 1933, § 26-1401. Even so, this Court in several cases endorsed the idea that criminal assault was not limited to circumstances in which the accused had an “actual present ability” to inflict injury, but extended as well to cases in which the accused had “a reasonably apparent present ability, so as to create an apprehension that the injury may be inflicted.” Thomas v. State,
Although these cases were decided under statutory law that defined criminal assault solely in terms of an attempted battery, they are far more consistent with the notion of criminal assault as an act that places another in reasonable apprehension of an imminent and violent injury For instance, this Court held in Crumbley v. State,
In recognizing criminal assault as an act that arouses an apprehension of injury, we did not dispense with the requirement of a specific intent. To the contrary, in Crumbley, although we appear to have accepted that the accused had no intent to actually inflict an injury, we pointed out that he had expressed an intent “to have a little fun out of the engineer,” presumably by causing the engineer to apprehend injury
(b) Amid concerns that the existing statutory law was contributing to “confusion in the field of criminal law,”
As a part of that revision, the General Assembly adopted the provisions now codified at OCGA § 16-5-20 (a), which recognize simple assaults of two varieties. As presently codified, paragraph (a) (1) carries forward the notion of criminal assault as it was understood at common law and as it had been defined in the statutory law of Georgia since 1833, providing that an “attempt[ ] to commit a violent injury to the person of another” is simple assault. Paragraph (a) (2), on the other hand, adopts the alternative definition of criminal assault as an “act which places another in reasonable apprehension of immediately receiving a violent injury” Although the 1968 enactment marks the first explicit acknowledgment in our statutory law of criminal assault by an act that arouses a reasonable apprehension of imminent and violent injury, recall that this Court already had effectively recognized that sort of assault by judicial decision, even under statutory law that defined assault exclusively in terms of an attempt to inflict injury. When it proposed this revision of the statutory law concerning assault, the Criminal Law Study Committee reported to the General Assembly that the revision “is the former Georgia law,” citing Crumb-ley and Thomas. Ga. Code Ann. bk. 10, Committee Notes, Ch. 26-13, p. 359 (Harrison 1988). Moreover, the Committee acknowledged that this proposed revision also was “the law in a majority of the American States.” Id.
For the present purposes, a few additional provisions of the 1968 enactment are noteworthy The General Assembly for the first time provided that a simple assault “with a deadly weapon” was aggravated assault, a provision now codified at OCGA § 16-5-21. In light of that provision, and consistent with the charge of the Criminal Law Study Committee to avoid inconsistencies and overlapping laws, the General Assembly contemporaneously repealed the former statute that made “shooting at another” a crime. See Code of 1933, § 26-1702.
(c) To answer that question, one must ascertain the meaning of the statutory text, as it would have been most naturally and reasonably understood at the moment of its enactment in 1968. See Warren,
The text of OCGA § 16-5-20 (a) (2) says nothing explicit about the requisite state of mind for a simple assault by an act that arouses a reasonable apprehension of imminent and violent injury.
where [the legislature] borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.
Morissette v. United States,
The notes of the Criminal Law Study Committee that accompanied the legislation adopting OCGA § 16-5-20 (a) (2) confirm that it was, in fact, understood in just that way at the time of enactment. According to those notes, the provision now codified at OCGA § 16-5-20
Other provisions of the 1968 comprehensive revision of the criminal laws also support this view. Recall that the General Assembly also enacted statutes concerning reckless conduct and the intentional pointing of a gun at another as a part of the 1968 revision. Recall as well that the revision was intended, among other things, to eliminate inconsistent and overlapping laws to the extent possible. If assault under OCGA § 16-5-20 (a) (2) required no intent to inflict injury or arouse apprehension, the overlap between that statute and the statutes concerning reckless conduct and intentionally pointing a gun at another wouldbe substantial, as further discussed later in this dissent.
In view of the statutory text and its relevant context, OCGA § 16-5-20 (a) (2) is most naturally and reasonably understood to require that a simple assault by an act that arouses a reasonable apprehension of imminent and violent injury requires an intent either to inflict injury or to arouse apprehension. If we were writing on a clean slate, I would readily conclude that such a specific intent is an essential element of simple assault under OCGA § 16-5-20 (a) (2). We are not, however, writing on a clean slate. Accordingly, I now turn to our prior decisions touching upon this subject.
3. Starting with Dunagan, this Court has held in several cases that OCGA § 16-5-20 (a) (2) requires only a general intent to do the act that happens to arouse apprehension. A proper consideration of these precedents must begin, however, with Rhodes v. State,
The aggravated assault definition includes an element not contained in the pointing of a firearm definition, specifically: a resulting reasonable apprehension of immediate violent injury. Thus, if the victim is not placed in reasonable apprehension of immediate violent injury by the pointing of the firearm, only the misdemeanor of pointing a firearm (and not the felony of aggravated assault) has been committed. (This would be the case where the victim was completely unaware that a firearm was pointed at him. On the other hand, if the pointing of the firearm placed the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred.)
In Dunagan, we quoted from that passage in Rhodes: “If the pointing of a firearm places the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred.”
an assault under [OCGA § 16-5-20 (a) (2)] looks to the victim’s state of mind, rather than the accused’s, to establish the elements of an assault. There is an intent of the accused that must be shown, but it is only the criminal intent to commit the acts which caused the victim to be reasonably apprehensive of receiving a violent injury, not any underlying intent of the accused in assaulting the victim.
Id. at 594 (2) (b).
Rhodes plainly holds that the apprehension of the victim is an element that distinguishes an aggravated assault by pointing a gun at another and arousing apprehension of injury from the crime of merely pointing a gun at another, and that certainly is true enough. But Rhodes did not explicitly state that this distinction was the only distinction between these offenses. More important, Rhodes said nothing at all about the state of mind required for an assault by an act that arouses a reasonable apprehension of imminent and violent injury. Perhaps that is because Rhodes was a case in which the defendant indisputably had a specific intent to arouse apprehension, and so, no party raised a question about the requisite intent. In the paragraph of Rhodes immediately following the passage upon which Dunagan relied, we said:
Rhodes’ act was clearly the felony of aggravated assault. The testimony showed that [the victim], as well as the three passengers in his car, were aware of and understandably apprehensive of immediate violent injury Rhodes’ own testimony (“I was showing the gun to him so he would leave me alone. ”) revealed that his purpose in pointing the weapon was to place [the victim] in apprehension of immediate violent injury. The request for a charge on misdemeanor manslaughter properly was denied.
4. Even so, Dunagan and its progeny are precedents of this Court, and we ordinarily “adhere to the principle of stare decisis, which directs the courts to stand by their prior decisions.” Smith v. State,
[v]ery weighty considerations underlie the principle that courts should not lightly overrule past decisions. Among these are the desirability that the law furnish a clear guide for the conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise; the importance of furthering fair and expeditious adjudication by eliminating the need to relitigate every relevant proposition in every case; and the necessity of maintaining public faith in the judiciary as a source of impersonal and reasoned judgments.
Moragne v. States Marine Lines,
As for the age of the precedents, Dunagan was decided only 18 years ago, and most of its progeny was handed down in the last ten years. Moreover, many of these cases involved mutually exclusive verdicts, discussed the intent element of assault only in that context, see, e.g., Jackson,
When the courts speak of reliance interests in the context of stare decisis, they refer to contract interests, property rights, and other substantive rights. See Jackson,
About the practicality of the precedents, Dunagan and its progeny lay down a clear and bright rule — the only intent required under
According to our precedents, all that is required for a simple assault under OCGA § 16-5-20 (a) (2) is a general intent to do the act. It appears that the act itself need not be otherwise unlawful, inherently wrongful, or unreasonably dangerous. So long as one intended the act, he has committed a simple assault if it happens to put another in reasonable apprehension of an imminent and violent injury That is true whether or not he intended to inflict injury or arouse such apprehension, whether or not he knew that injury or apprehension was substantially certain, whether or not he was conscious of even a risk that such injury or apprehension might occur, and whether or not he should have known of such a risk. It also is true whether or not injury or apprehension was foreseeable at all. Even if an exceedingly careful and conscientious person were to take every reasonable precaution to ensure that his act would neither injure another nor arouse apprehension of injury, if he missed something through no fault of his own, and if his act, as a result, happens to produce a reasonable apprehension of imminent and violent injury, he would appear to have committed a simple assault under Dunagan and its progeny Those precedents hold, after all, that only the intent to do the act matters.
Worse still, if an act involves the use of a deadly weapon or an object that is reasonably likely to cause serious injury — a firearm or a motor vehicle, for instance — the assault will amount to an aggravated assault. To illustrate, suppose that you are driving down an Interstate highway, and you intentionally steer your car into an adjacent lane, having carefully checked to see that the lane is unoccupied and that you might safely change lanes. If you missed another vehicle in your blind spot, and if by encroaching upon its lane, you cause the driver of the other vehicle to apprehend an imminent and violent injury, you have committed an assault under Dunagan and its progeny, one that may well be aggravated by your use of the vehicle. Or suppose that you begin to pull out onto a busy roadway, but you stop short after realizing that oncoming traffic was
These illustrations suggest, of course, that Dunagan and its progeny have construed OCGA § 16-5-20 (a) (2) far more expansively than the General Assembly might reasonably be thought to have intended when it enacted the statute in 1968. More important, however, these illustrations show the potential for the statute to substantially displace other provisions of our criminal law. Reckless conduct, for instance, requires conduct that exposes another to a risk of harm, see OCGA § 16-5-60 (b), but as this Court has construed OCGA § 16-5-20 (a) (2), in every case of reckless conduct in which the person exposed to a risk of harm perceives the exposure and apprehends an imminent and violent injury, the reckless conduct amounts
As for the analytical soundness of the precedents, I have said enough already The majority today attempts to prop up these precedents by reference to statutory text, but its analysis is largely indifferent, to relevant and important statutory context and is not, therefore, complete or convincing. Dunagan and its progeny are based on a misapprehension of Rhodes, they are inconsistent with the most natural and reasonable understanding of OCGA § 16-5-20 (a) (2), they are out of step with the understanding of criminal assault in American law generally, and they mark Georgia as an outlier. They are not firmly established in our jurisprudence, they implicate no meaningful reliance interests, they threaten the substantial displacement of other provisions of statutory law, and they recognize a species of assault that approaches strict liability and is ripe for misuse and abuse. If the statutory text were most properly understood in the way that Dunagan, its progeny, and the majority today suggest, that would be one thing. But the text is more naturally and reasonably understood otherwise.
That the General Assembly might readily amend OCGA § 16-5-20 (a) (2) to prospectively overturn Dunagan and its progeny is the only factor that supports continuing adherence to those precedents. For the most part, this is the factor on which the majority hangs its decision, going so far as to suggest that the General Assembly effectively has ratified Dunagan by its failure to amend the statute and require a specific intent explicitly It is one thing to infer legislative acquiescence when the General Assembly has substantially changed a statutory provision but retained language that we previously construed. The inference is much weaker, however, where the General Assembly has done nothing substantive with the provision in question since we construed it, especially when our precedents lack the sort of meaningful analysis that would draw attention to the issue and mark it as a debatable one. See Jackson,
Even when there is a strong reason to infer legislative acquiescence, this Court has found compelling reasons to depart from precedents about the meaning of a statute. See, e.g., Garza v. State,
For these reasons, I would overrule Dunagan and its progeny to the extent that they construe OCGA § 16-5-20 (a) (2) to require only an intent to do the act that places another in reasonable apprehension of an imminent and violent injury Consistent with the most natural and reasonable understanding of the statute, I would hold that it instead requires a specific intent either to inflict injury or to arouse an apprehension of injury Because a majority of the Court has seen fit to standby our erroneous precedents, however, if the original and ordinary meaning of the statute is to prevail, it now will require further action by our General Assembly. I respectfully dissent.
Patterson was convicted of disorderly conduct as well. The jury also found Patterson guilty of two simple assaults, although those assaults merged into the aggravated assault of which he was convicted. The jury acquitted Patterson of several other crimes, including aggravated battery.
The aggravating circumstance was that Patterson committed the assault by use of an “object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury,” former OCGA § 16-5-21 (a) (2), namely, a motor vehicle. See, e.g., Guyse,
The jury would have been authorized to infer an intent to injure or cause apprehension of injury simply from the fact that Patterson intentionally drove his van in the direction of Silvers. See, e.g., Turner v. State,
When Blackstone spoke of “an attempt or offer to beat another, without touching him,” he was referring to the tort of assault, as it was understood at common law in England. Blackstone explained, however, that criminal assault was of the same nature as the tort of assault. See 4 Blackstone, Commentaries on the Laws of England 216-217 (1st ed. 1769).
In particular, there were concerns that much of the existing statutory law had become “completely obsolete,” that “many criminal laws are unnecessarily verbose, some are difficult of distinction, many are overlapping!,] and others are extremely difficult to interpret.” Ga. L. 1961, p. 96.
The report and notes of the Study Committee formerly were published in the Code.
Contemporary eyes might perceive an explicit reference to specific intent in OCGA § 16-5-20 (a) (1), which speaks of an “attempt” to inflict a violent injury, and having perceived such a reference, one might infer that the absence of a like reference in OCGA § 16-5-20 (a) (2) was meant to signal that an assault by an act that arouses an apprehension of injury requires no such intent. There are three reasons to doubt the soundness of such an inference. First, such an inference draws upon the modern understanding that a criminal attempt necessarily involves a specific intent to commit the crime attempted. Recall, however, that OCGA § 16-5-20 (a) (1) carried forward verbatim a provision that had been a part of our statutory law since 1833, whereas the statutory law included no general provision for criminal attempts until the enactment of the 1968 revision. See OCGA § 16-4-1. The idea that OCGA § 16-5-20 (a) (1) can be properly understood by reference to modern conceptions of criminal attempt is, therefore, highly questionable. Second, recall as well that, even when the provision now codified at OCGA § 16-5-20 (a) (1) was the only way in which our statutory law defined criminal assault, this Court decided in Crumbley that an assault did not always require a specific intent to actually inflict violent injury, but instead could be premised on an intent to arouse apprehension of injury. Crumbley is inconsistent with the idea that the statutory reference to “attempt” was meant to convey the modern notion that an attempt always requires a specific intent to commit the crime attempted. Finally, recall too that criminal assault by an act arousing apprehension was recognized in our decisional law long before it was made a part of the statutory law of Georgia, and yet, our precedents never purported to dispense with the requirement of a specific intent. I do not think that the reference to “attempt” in OCGA § 16-5-20
The only other authorities cited in Dunagan for these propositions are two decisions of our Court of Appeals, Gilbert v. State,
At oral argument, the State agreed that a prosecution upon such hypothetical facts would amount to a misuse of the statute, but the State failed to explain why that is so if the statute means what Dunagan and its progeny hold. The State says that the cases offer no examples of such misuse, although Patterson may well take issue with that statement. In any event, the position of the State boils down to an argument that the courts should trust the good nature, sound judgment, and grace of prosecuting attorneys. I harbor no doubt about the integrity of prosecuting attorneys generally, but that is not how courts ordinarily construe the criminal laws. See Baggett v. Bullitt,
The majority like wise hints that “ordinary behavior” perhaps might not properly form the basis for an aggravated assault, referring to the “element” of “when used offensively against a person.” In the first place, this putative limitation would not apply at all to simple assaults, nor would it apply to assaults aggravated by use of a “deadly weapon,” as opposed to an “object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Second, it is not clear that the so-called element to which the majority refers is anything more than an essential characteristic of an “object, device, or instrument” that may form the basis for an aggravated assault under former OCGA § 16-5-21 (a) (2). Most important, if the purpose for which one uses an “object, device, or instrument” is inconsequential — and the majority makes clear that such an intent is entirely irrelevant — it is difficult to understand how a requirement that the “object, device, or instrument” be used “offensively” marks any meaningful limitation. In any event, the decision to standby Dunagan and its progeny portends great uncertainty and perhaps more jurisprudential incoherence to come.