Carrell v. State6/4/2003
Following a jury trial, Craig Avery Carrell appeals his convictions for aggravated assault, driving under the influence, fleeing and attempting to elude, reckless driving, exceeding the maximum speed limit, and reckless conduct. Carrell contends that the trial court erred in (1) allowing mutually exclusive verdicts for aggravated assault and reckless driving, and (2) failing to merge the reckless driving, speeding, and reckless conduct convictions. For the reasons set forth below, we affirm the convictions but vacate the sentence and remand for resentencing.
The record shows that, in the early morning hours of January 4, 1998, Officer Daniel Pollock of the Georgia State Patrol received a dispatch call advising him to be on the lookout for a white Chevrolet Corvette driven by Carrell. After spotting Carrell, Pollock turned on his blue light and siren and gave chase. Carrell was traveling at speeds between 120 and 130 mph and crossing over the centerline to take the curves. At first, Pollock was unable to catch up to Carrell; when he did start to gain ground, Carrell suddenly braked, turned around, and headed back past Pollock with his headlights off. Pollock, too, turned around and resumed the chase. When Pollock once again came up behind Carrell, Carrell again braked, turned around, and headed back up the road.
The chase continued, with Carrell driving in a reckless fashion, speeding, and turning his headlights on and off. At one point, Carrell's headlights went off and Pollock thought Carrell had run off the road, but seconds later the headlights came back on, revealing that Carrell had turned around, moved over into Pollock's lane, and was headed straight at Pollock. Pollock left the roadway to avoid a collision.
Carrell continued his maneuvers, trying on at least two other occasions to collide with Pollock. At one point, Pollock lost sight of Carrell. Searching for Carrell, Pollock drove down a dead-end road. At the end of the road, he found Carrell's automobile facing him. As he was attempting to call the patrol station, Carrell turned on his headlights and raced directly at Pollock. Pollock again avoided a collision by driving off the roadway.
The chase resumed and, for the second time, Pollock lost contact with Carrell. Later, he noticed the Corvette in the distance, off the road, and apparently stuck in a ditch. When he approached, the doors flew open and Carrell and his passenger fled on foot. Pollock apprehended both men after a foot chase.
1. In his first enumeration of error, Carrell contends that the trial court erred in allowing mutually exclusive verdicts for aggravated assault and reckless driving. Carrell points out that he was charged in Count 1 with aggravated assault upon Pollock, "said assault being with a motor vehicle, a deadly weapon in the way and manner used by attempting to ram said officer's patrol car." In Count 4, Carrell was charged with reckless driving in that he "did unlawfully drive a motor vehicle in a reckless manner to wit: traveling at a high rate of speed, crossing the centerline, and driving at night without his headlights on, in a reckless disregard of the safety of person and property." Assuming that the act of "attempting to ram" alleged in Count 1 is identical to "crossing the centerline" in Count 4, Carrell argues that the same conduct, i.e., crossing the centerline, forms the basis for both the aggravated assault charge and the reckless driving charge. Carrell further reasons that since aggravated assault is a crime requiring proof of specific intent, the jury must have found that Carrell crossed the centerline intentionally. But, in finding him guilty of reckless driving, a crime which requires an act of cr
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