WEAVER v. STATE

POPE, Judge.

Janice Weaver brings this appeal from her conviction and sentence of aggravated assault. Her sole enumeration of error challenges the trial court's refusal to give a requested charge on reckless conduct, OCGA § 16-5-60.

Appellant contends that reckless conduct is a lesser included offense of aggravated assault under the evidence in this case, citing Bowers v. State, 177 Ga. App. 36 (2) ( 338 S.E.2d 457) (1985). Cf. Harshaw v. State, 134 Ga. App. 581 (3) ( 215 S.E.2d 337) (1975). In support of this assertion, appellant points to her trial testimony: "I had the gun by the handles ... and I just stepped up [to the victim's truck] and I showed her [the victim] the gun. I told her ...: `Hazel, just get the hell out of here and leave me and my family alone.'... I just intended to turn around and walk off.... I had [the gun] by the handles ... [but] didn't have it in the window [of the victim's truck.] It was at the window ... [but] I didn't point it at her or stick it inside the truck; just so she could see it ... and she grabbed my arm.... [W]hen she grabbed my arm, my arm hit the window and the gun just went off.... I just meant to scare her. I didn't want to hurt anybody. I just wanted them to go on so we could go home and it all be forgot. [Appellant feared that the victim would do serious bodily harm to appellant's brother, the victim's ex-husband.] I didn't mean to hurt her. It was an accident."

We find appellant's enumeration of error controlled adversely to her by the holding in Riley v. State, 181 Ga. App. 667 (3) ( 353 S.E.2d 598) (1987): "In Bowers, the charge on reckless conduct was appropriate because the jury was authorized to find that the defendant engaged in target practice with a gun while consciously disregarding the risk to the nearby victim. One is guilty of reckless conduct 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 the 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. The crime of reckless conduct is one of criminal negligence. Bowers v. State, supra at 38 (1). The instant case is distinguishable from Bowers. Appellant admitted [displaying] the gun with the intent to scare the victim, although she testified that she did not intend to [shoot her.] `Using a deadly weapon to commit an act which places another in reasonable apprehension of immediately receiving a violent injury amounts to an aggravated assault, absent justification. (Cits.) The act testified to by appellant was either justified as an act of self-defense [or defense of another, or was an accident,] or constituted a felony.' (Emphasis supplied.) Williams v. State, 249 Ga. 6, 8 ( 287 S.E.2d 31) (1982). The jury was fully and completely instructed on [both accident and] justification. The trial court did not err in refusing to give the requested charge." Id. at 669-670.

Judgment affirmed. Birdsong, C. J., and Deen, P. J., concur.