Full Opinion

THIRD DIVISION DILLARD, P. J., GOBEIL and PIPKIN, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.gov/rules September 22, 2026 In the Court of Appeals of Georgia A26A0927. THE STATE v. ROSS. GOBEIL, Judge. Monteyo Ross was charged by accusation with one count of reckless conduct. Ross filed a pre-trial general demurrer, which the trial court granted. On appeal, the State argues that the trial court erred in granting the demurrer because Ross could not admit all of the facts alleged in the accusation and not be guilty of a crime. We agree and reverse. We begin by noting the distinction between a general demurrer and a special demurrer. A defendant may challenge the sufficiency of the substance of an indictment [or accusation] by making a general demurrer, thereby asserting the indictment is fatally defective and cannot support a conviction. A defendant may challenge the sufficiency of the form of an indictment by filing a special demurrer, asserting that the charge is imperfect as to form or that he or she is entitled to more information about the charged offense. Jackson v. State, 301 Ga. 137(1) n. 1 (800 SE2d 356) (2017) (emphasis supplied). “A general demurrer challenges the very validity of the indictment and may be raised anytime; the special [demurrer] objects merely to its form or seeks more information and must be raised before pleading to the indictment.” Stinson v. State, 279 Ga. 177, 180(2) n. 3 (611 SE2d 52) (2005); see OCGA § 17-7-110 (“All pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.”). Although Ross filed a pre-trial special demurrer and later an amended special demurrer, he elected to proceed only on the general demurrer. Accordingly, he waived a challenge seeking greater specificity in the accusation, and we are only concerned in this case with the legality of the accusation. State v. Wilson, 318 Ga. App. 88, 92(1), 93(1)(a) (732 SE2d 330) (2012) (finding that a defendant who did not timely file a special demurrer in 2 writing within ten days after arraignment waived his right to be tried on an indictment perfect in form and substance). We review de novo a trial court’s ruling on a general demurrer, looking only to the four corners of the indictment to determine whether the allegations in the indictment are legally sufficient. Powell v. State, 318 Ga. 875, 879(2) (901 SE2d 182) (2024). To assess the merits of a general demurrer, which challenges the sufficiency of the substance of the indictment, a court asks whether the defendant can admit each and every fact alleged in the indictment and still be innocent of any crime. If so, the general demurrer should be sustained. But if the admission of the facts alleged would lead necessarily to the conclusion that the accused is guilty of a crime, the indictment is sufficient to withstand a general demurrer. Id. at 880(2) (citation modified). As the Supreme Court of Georgia has held, “if an indictment recites the language of the statute that sets out all the elements of the offense charged or alleges the facts necessary to establish a violation of a criminal statute, then the indictment is sufficient to withstand a general demurrer.” Id. “[T]he State [is] not required to allege any additional facts in the indictment beyond the statutory elements” to withstand a general demurrer. Id. at 882(2). 3 With these principles in mind, we begin with the statute referenced in Ross’s accusation. OCGA § 16-5-60(b)(2) 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 or her 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[.] The accusation at issue here charged Ross with reckless conduct in violation of OCGA § 16-5-60(b) as follows: for that said accused in the County of Fulton, State of Georgia, on or about December 08, 2022, did endanger the bodily safety of Fulton County citizens, by consciously disregarding a substantial and unjustifiable risk that his act would endanger the safety of such persons and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise, by throwing a firearm on the ground in a public place, in violation of OCGA § 16-5-60(b)[.] Ross moved to quash the accusation, arguing that it was fatally defective because he could admit to all the allegations in the accusation and not be guilty of a crime. The trial court agreed and granted Ross’s motion. 4 In its sole enumeration of error, the State argues that the trial court erred in granting the demurrer because the accusation tracked the language of the reckless conduct statute and the additional facts alleged do not negate the offense. We agree. The case of State v. Pendergrass, 298 Ga. App. 801 (681 SE2d 241) (2009), is instructive. In that case, a firefighter was fatally injured in a house fire, and the defendant was charged with reckless conduct for the act of leaving a candle burning in a vacant house. Id. at 801-02. The defendant filed a general demurrer, which the trial court granted. Id. This Court reversed, explaining that the accusation closely tracked the relevant statutory language, and the defendant could not admit the allegations in the indictment and remain innocent of reckless conduct. Id. at 803(1). Importantly, we noted that “[a]lthough leaving a candle burning in a house may not in and of itself constitute reckless conduct, such action may rise to that level depending on the circumstances.” Id. Similarly, in the instant case, while throwing a firearm on the ground in a public place may not in and of itself amount to reckless conduct, such action could “rise to that level depending on the circumstances.” Kain v. State, 287 Ga. App. 45, 49(2) (650 SE2d 749) (2007) (affirming trial court’s finding that indictment for cruelty to children in second degree was good against general 5 demurrer because “[a]lthough the failure to reasonably supervise or reasonably watch one’s children may not in and of itself constitute criminal negligence, such dereliction certainly may rise to that level depending on the circumstances”). Ross argues that the Supreme Court of Georgia’s recent decision in Powell, supra, altered the legal landscape pertaining to whether a charging instrument is sufficient to withstand a general demurrer. In that case, our Supreme Court examined whether an indictment charging two former police officers with violations of their oaths of office under OCGA § 16-10-1 (for failing to conduct investigations of other police officers in purported violation of Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963)) was sufficient to withstand the defendant officers’ general demurrers. Specifically, four counts of the indictment at issue in Powell recited the language of OCGA § 16-10-1 that sets forth all the elements of the offense of violation of oath of office, and this language would have otherwise been sufficient to withstand a general demurrer. Id. at 876-78(1), 880(2). However, the indictment went on to allege that the officers violated their oaths of office by failing to investigate officer misconduct and to undertake certain administrative actions, and the indictment 6 alleged that these failures constituted Brady violations. Id. Our Supreme Court noted that, even if Brady violations could form the basis for a violation of oath of office charge, the conduct alleged in the indictment — failure to investigate and failure to initiate internal affairs proceedings — did not constitute Brady violations. Id. at 883(2). Thus, it would have been “legally impossible” for the officers to commit the crimes in the way the State alleged in the indictment. Id. Although the indictment recited the language of the statute setting out all of the elements of the offense charged, the Court held that the indictment was nevertheless defective because it alleged additional facts that were “inconsistent with the criminal statute as pleaded and negate[d] the manner in which [the officers] purportedly violated the terms of their oaths of office.” Id. at 882(2). Put another way, the specific details provided in each count actually negated the elements of the crime charged. Id. In the instant case, as noted above, Count 1 of the accusation charged Ross with “endanger[ing] the bodily safety of Fulton County citizens, by consciously disregarding a substantial and unjustifiable risk that his act would endanger the safety of such persons and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise, by throwing a firearm on the ground 7 in a public place, in violation of OCGA § 16-5-60(b)[.]” In contrast to Powell, the additional facts the State alleged in Count 1 of the accusation against Ross do not “actually negate the elements of the crime charged.” Powell, 318 Ga. at 882(2) (emphasis in original). And, as our Supreme Court noted, “if an indictment recites the language of the statute that sets out all the elements of the offense charged or alleges the facts necessary to establish a violation of a criminal statute, then the indictment is sufficient to withstand a general demurrer.” Id. at 880(2); see also State v. Wyatt, 295 Ga. 257, 260(2) (759 SE2d 500) (2014) (“[A]n indictment couched in the language of the statute alleged to have been violated is not subject to a general demurrer.”). Moreover, “the State [is] not required to allege any additional facts in the indictment beyond the statutory elements” to withstand a general, as opposed to a special, demurrer.1 Powell, 318 Ga. at 882(2). In short, we conclude that the accusation in this case tracked the statutory language, contained the elements of the offense, and sufficiently apprised Ross of the 1 Whether such language would withstand a special demurrer is not before this Court. See Powell, 318 Ga. at 882(2) (“the State generally must allege additional facts to survive a special demurrer”). 8 charges against him so as to withstand a general demurrer. Accordingly, the trial court erred in granting Ross’s motion to quash the accusation. Judgment reversed. Dillard, P. J., and Pipkin, J., concur. 9