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Huguley v. State2/22/2000
se 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.' OCGA § 16-5-60 (b). The distinguishing difference between a charge of aggravated assault and one of reckless conduct is that in a case of aggravated assault, [placing another in fear of receiving a violent injury] is the intended consequence of the defendant's act, whereas with reckless conduct, the [victim's apprehension] is a product of the defendant's criminal negligence. Compare Shaw v. State, [238 Ga. App. 757 (519 SE2d 486) (1999) (physical precedent only)]. (Emphasis in original.) Paz v. State, supra at 278 (2). See also Briard v. State, supra at 493; Riley v. State, supra at 670; Bowers v. State, 177 Ga. App. 36, 37-38 (338 SE2d 457) (1985).
(b) The basic facts of this case are not in dispute. In a custodial statement and again at trial, Huguley admitted that he chased the victims in his car; fired his gun during the chase; blocked the exit to the subdivision so the victims could not escape; jumped out from behind a tree; approached the victim's vehicle; and intentionally fired three to five "warning shots." This begs the question - what was he "warning" the victims about, if not the very real possibility that Huguley's next shots would violently injure or kill them?
In fact, the only dispute is whether Huguley directed these "warning shots" at them, as the Valcarcels contend, or into the air, as Huguley contends. However, this is a non-issue, because, either way, Huguley's intent was to put the Valcarcels in fear of an immediate bodily injury . See Briard v. State, supra at 493. Thus, a charge on reckless conduct was not warranted. Id.
The evidence, including Huguley's own admissions, clearly established that Huguley repeatedly fired his weapon with the intention of scaring the victims, even if he did not intend to hit them. As such, the evidence established aggravated assault under OCGA § 16-5-20 (a) (2), and there was no error in the failure to give an instruction on reckless conduct. Shaw v. State, supra at 759. Since Huguley was not entitled to a charge on reckless conduct, his trial counsel cannot be deemed ineffective for failing to request such charge. There was no error.
2. In his second enumeration, Huguley complains about the adequacy of the trial court's recharge to the jury during deliberations. The recharge was in response to the following jury inquiries: "May we have a written definition of assault and aggravated assault?" and "Does a weapon need to be aimed at a person to constitute aggravated assault?" The trial court sent out one written message to address both issues. The message included the statutory definitions of assault and aggravated assault under OCGA §§ 16-5-20 and 16-5-21, as well as the following:
To constitute an assault, actual injury to the other person need not be shown. It is only necessary that the evidence show, beyond a reasonable doubt, an intention to commit injury on another person, coupled with the apparent ability to commit that injury, or that the other person was intentionally placed in reasonable apprehension of immediately receiving a violent injury from the defendant.
This was a reiteration of the instructions previously given the jury and is a correct statement of the law. See Head v. State, 233 Ga. App. 655, 656 (2) (504 SE2d 499) (1998). We find that it adequately addressed both of the jury's issues. There was no error.
Judgment affirmed. Blackburn, P. J., and Barnes, J., concur.
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