Lead Opinion
Sandra Boyer was charged with one count of reckless conduct and one count of simple battery. The trial court sustained her demurrer, finding the reckless conduct statute, OCGA § 16-5-60 (b), unconstitutional as applied to the facts of the case. The court also found the simple battery charge “duplicitous” of the reckless conduct charge. The State appeals, and for the reasons which follow, we reverse.
1. Because of the posture of this case, the underlying facts have not been fully developed.
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.
Boyer contends that the statute is unconstitutionally vague. A statute is not unconstitutionally vague if its language provides persons of ordinary intelligence with notice as to what it prohibits so they may conduct themselves accordingly. Land v. State,
In declaring OCGA § 16-5-60 (b) unconstitutional as applied, the court relied on Hall v. State,
Here, however, the accusation alleged Boyer “knowingly and intentionally endager [sic] the safety of another, to wit: Haley Tolbert
The statute provides ample notice to Boyer that the conduct of which she is accused is prohibited. See Land, supra. Roughly handling an infant clearly may endanger the bodily safety of the infant. 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.
Boyer also argues that Hall implicitly declared OCGA § 16-5-60 (b) unconstitutional in all applications. However, this is not so. Rather, Hall specifically found OCGA § 16-5-60 (b) unconstitutional only as it applies to the facts found therein, a limitation required by the threshold principle that a non-First Amendment vagueness challenge is decided by the facts of the case.
Under these facts, the statute also supplies explicit standards for enforcement. Compare Hall, supra at 93. It is directed at limiting the risks that one person will cause another, and does so in terms that advise a person of ordinary intelligence that the behavior here alleged is prohibited. Its terms also notify those who enforce the law what behavior is prohibited; the fact that application of the statute’s standards sometimes requires an assessment of the surrounding circumstances to determine if the statute is violated does not render it unconstitutional. See State v. Miller,
2. The trial court also determined the simple battery charge to be “duplicitous” of the reckless conduct count, citing OCGA § 16-1-7 (a) (2), which prohibits multiple prosecutions. “An accusation is duplicitous if it joins ‘separate and distinct offenses in one and the same count.’ [Cit.] ‘Duplicity' is ‘[t]he technical fault in . . . pleading of uniting . . . two or more offenses in the same count of an indictment. . . .’ [Cit.]” Peters v. State,
Nor does OCGA § 16-1-7 (a) (2) provide a basis for dismissing one of the counts of the accusation. In fact, OCGA § 16-1-7 (a) (2) specifically allows Boyer to be prosecuted on two separate counts for the same transaction:
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: . . . 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.
Boyer’s alleged conduct fits the definition of more than one crime, and the State may charge her with any and all crimes that arise from that behavior. See State v. Tiraboschi,
Judgment reversed.
Notes
Presently, the issue of the sufficiency of the evidence under Jackson v. Virginia,
Concurrence Opinion
concurring specially.
Concluding that Hall v. State,
At the time of the ruling on their respective constitutional challenges, neither Ms. Hall nor Ms. Boyer had been tried. The only question presented for decision was the validity of each defendant’s pretrial challenge to the constitutionality of OCGA § 16-5-60 (b). The question presented to the trial court in both cases was whether the terms of the reckless conduct statute convey a sufficiently definite warning of the proscribed conduct when measured by common understanding, and whether those statutory terms also provide explicit standards to prevent arbitrary enforcement. Douglas v. State,
Thus, this case can and should be resolved only on the basis of the allegations of criminal conduct contained in the indictment. Under those allegations, Ms. Boyer is charged with violating OCGA § 16-5-60 (b) by “roughly handling [the] victim.” Clearly, a person of common intelligence would recognize that an act of subjecting another to rough handling is encompassed within the statutory proscription on “reckless conduct.” See Horowitz v. State,
A constitutional challenge to a criminal statute which is not based on alleged violations of the First Amendment must be examined in light of the facts of the case at hand. United States v. Mazurie,
Dissenting Opinion
dissenting.
I respectfully dissent. The indictment charging Boyer with reckless conduct in violation of OCGA § 16-5-60 (b) alleged that she:
Knowingly and intentionally endanger [ed] the life of another, to wit: [ ] by consciously disregarding a substantial and unjustifiable risk that [her] act would cause harm or endanger the safety of another; said act being: roughly handling [the] victim.
As noted in the majority opinion, because this matter is reviewed following the trial court’s denial of Boyer’s motion to quash, the underlying facts are not developed. However, the State has represented to this Court that it expects the evidence to show that Boyer, a day care center employee, was supervising a room of twelve-montholds during their nap period; that one of the children would not sleep and kept “popping up”;
1. The majority is, of course, correct that Boyer’s vagueness challenge to OCGA § 16-5-60 (b) must be evaluated on the facts of this case.
Bearing these principles in mind, I believe it is obvious that the Reckless Conduct Statute did not provide Boyer with fair notice that she could be held criminally responsible for her actions at the day care center. Neither ordinary intelligence nor common sense dictate that a statute forbidding the conscious disregard of a substantial risk in gross deviation of an acceptable standard of care
If, as the majority holds, the Reckless Conduct Statute did provide Boyer with fair notice that her conduct was prohibited by criminal statute, it bears noting a few of the myriad other situations to which the Statute’s prohibitions will apply. Because the Reckless Conduct Statute is most often applied to women who care for children,
2. As applied to Boyer’s case, the Reckless Conduct Statute also is unconstitutionally vague for a second, equally compelling reason. The Statute also violates the prohibition against vague laws because it fails to provide explicit standards for those who would apply it, and is susceptible to arbitrary and selective enforcement.
The Reckless Conduct Statute, as applied in this case, suffers from these very infirmities. The Statute lacked definite and explicit standards to guide its enforcement against Boyer. This is shown quite obviously by the facts of this case — Boyer’s “plopping” and “pushing” at the day care center were recorded on videotape. After authorities were notified of her purported “rough handling” of the child, several police officers were called to the scene, where they reviewed the videotape
Clearly, authorities were unsure whether Boyer’s actions were in deviation of the statute, and thus were prohibited. That determination was made by law enforcement officials only after lengthy deliberation, and necessarily was based upon their own predilections and standards. Thus, the determination of whether Boyer took a “substantial and unjustified” risk was entirely dependent upon the subjective views of law enforcement officials. It is axiomatic that, because this is a nation of laws rather than individuals, criminal statutes proscribe specific conduct, not any individual’s perception of that conduct. As observed by the United States Supreme Court when declaring a federal statute unconstitutionally vague:
An attempt to enforce the [Statute] would be the exact equivalent of an effort to . . . penalize and punish all acts detrimental to the public interest when unjust or unreasonable in the estimation of the court and jury. . . . [The Statute] leaves open . . . the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against.17
As applied in this case, the Statute’s lack of definiteness about what risks are “substantial and unjustifiable” enabled law enforcement officials to “cast a wide net,”
To conclude, the Reckless Conduct Statute, as applied to this case, both (1) failed to provide persons of ordinary intelligence with notice that it prohibits the type of conduct engaged in by Boyer, and (2) is vaguely worded so as to encourage arbitrary and selective enforcement by police, prosecutors, and juries, acting on an ad hoc basis. Therefore, I believe that the Statute as applied in this case offends fundamental notions of due process, and that the trial court correctly sustained Boyer’s demurrer. For these reasons, I respectfully dissent.
I am authorized to state that Presiding Justice Fletcher joins in this dissent.
A review of the record shows that by “popping” up, the indictment refers to the child’s lifting up of its head and torso while lying on its stomach.
Hall v. State,
OCGA § 16-5-60 (b).
Rose v. Locke,
Hall, supra; Roemhild v. State,
See Rose,
Id.; Hubbard v. State,
Hall,
United. States v. L. Cohen Grocery Store Co.,
See id.
See, e.g., Hall, supra.
Of course, this is to say nothing of the other issues raised by the application of the Statute to child discipline. For example, is it proper for the State to impose criminal penalties for widely-accepted, non-abusive means of child discipline? Because the disparate means of child discipline often correspond to cultural lines, would application of the Statute to this conduct raise equal protection concerns?
See Grayned,
Roemhild, supra (quoting Grayned,
Papachristu,
Cohen,
Papachristu, supra.