State v. Boyer , 270 Ga. 701 ( 1999 )

Hines, Justice.

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.¹ However, the State contends it would show that Boyer is an employee of a child day care center, and that, while supervising a room of 12-month-old children, she roughly handled a child who would not properly lie down for a nap, including forcefully pushing the child down on a mat by the back of the child’s head.

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, 262 Ga. 898, 899 (1) (426 SE2d 370) (1993).

In declaring OCGA § 16-5-60 (b) unconstitutional as applied, the court relied on Hall v. State, 268 Ga. 89 (485 SE2d 755) (1997). However, Hall does not control. As Hall specifically recognizes, a constitutional attack to a statute on a vagueness ground that does not involve a First Amendment challenge must be decided on the particular facts of each case. Id. at 91 (1). The proffered circumstances of this case are markedly different from those in Hall. Hall left four children alone in her home for four hours; the oldest child was aged eleven years and nine months. The other children were five, three, and one. The State contended that leaving the three younger children in the care of the oldest child was done in conscious disregard of the risk that a child might be hurt, as did occur. This Court determined that “[o]rdinary intelligence does not dictate that a statute forbidding the conscious disregard of a substantial risk necessarily encompasses a prohibition against leaving young children in the care of an older child who is almost 12 years old.” Id. at 92 (2).

Here, however, the accusation alleged Boyer “knowingly and intentionally endager [sic] the safety of another, to wit: Haley Tolbert by consciously disregarding a substantial and unjustifiable risk that his [sic] act, would cause the harm or endanger the safety another [sic]; said act being: roughly handling said victim.” Thus, unlike Hall, Boyer is accused of taking direct, physical, and adverse action against an infant. Boyer’s conduct is more akin to that of the defendant in Horowitz v. State, 243 Ga. 441 (254 SE2d 828) (1979), who drove an automobile in a reckless manner (an action which the statute was sufficiently definite to advise him was prohibited). Like Horowitz, Boyer is alleged to have taken affirmative action from which harm might directly result. Hall’s action required additional circumstances to produce harm and Hall therefore does not serve as controlling precedent for a vagueness challenge based on the proffered circumstances in Boyer’s case.

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, 260 Ga. 669, 674 (2) (398 SE2d 547) (1990). Compare Hall, supra at 93. Further, unlike Hall, this is not a situation in which the statute is enforced only in hindsight, because of the consequences that flowed from Boyer’s actions. The accusation is premised on the risk posed to the infant, which is the evil the statute is to remedy; there is no accusation that the health of the infant was actually injured. In Boyer’s case, there is no suggestion that the defendant’s actions are seen as placing another at risk only when viewed in hindsight. Compare Hall, supra at 94.

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, 175 Ga. App. 463, 465 (1) (333 SE2d 436) (1985) (overruled on other grounds, Hogan v. State, 178 Ga. App. 534, 535 (343 SE2d 770) (1986)). That has not occurred here. To the contrary, the battery and reckless conduct charges are, properly, in separate counts of the accusation.

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, 269 Ga. 812, 813-814 (504 SE2d 689) (1998). That she may not be sentenced for more than one crime based on the same criminal act does not mean that the State must choose to charge her with only a single crime. Id.

Judgment reversed.

All the Justices concur, except Carley and Thompson, JJ, who concur specially, and Fletcher, P. J., and Sears, J, who dissent.

1 Presently, the issue of the sufficiency of the evidence under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), is not before the Court.