dissenting.
The death of Mary Bohannon’s baby was a tragedy. Her continued prosecution for that death is, to my mind, a travesty. As a matter of law, the evidence in this case can never be sufficient to sustain Bohannon’s conviction for the offense as indicted.
If it is legal to sleep with one’s baby, which it is, it cannot be illegal to sleep with one’s baby after drinking alcohol. Drinking alcohol is itself a legal act and cannot make a crime out of another legal act, unless the legislature specifically provides for it. See OCGA §§ 40-6-391 (driving under the influence of alcohol); 16-11-41 (public drunkenness).
It is irrelevant that Bohannon signed the DFCS “safety plan.” Bohannon cannot be prosecuted for violating the DFCS safety plan. It is not against the law.
The plan is being used to bootstrap Bohannon’s actions into the State law offense of “reckless conduct.” In the majority opinion, proof of the essential elements of “reckless conduct” is totally dependent upon proof that Bohannon violated the safety plan. As the majority puts it, Bohannon’s act of putting the baby in the bed “was being done even though she was aware, pursuant to the safety agreement she previously had executed, that her baby’s safety was placed in jeopardy by being in her possession while she had been drinking.” Therein lies the selective prosecution of Mary Bohannon. Another person who did the same act would not be prosecuted because she did *838not sign a plan, i.e., she was without the requisite “awareness.” In Georgia, an act is not designated as a crime depending upon who commits it. Our criminal laws do not work that way.
In reality, swayed by public outrage over the death of the baby, Mary Bohannon was prosecuted for being an alcoholic parent. This becomes apparent to anyone who conducts more than a cursory reading of the majority opinion. Her prosecution as an alcoholic parent is the reason why:
(a) Two “similar transactions” which demonstrate only, as the majority puts it, Bohannon’s “public drunkenness,” are considered harmless. After the baby’s death, Bohannon twice became extremely intoxicated, once passing out by the side of the road and once having to be forcibly removed from another’s home. These two incidents showed absolutely nothing about the indicted act; had nothing to do with parenting or acts toward the baby; occurred after the baby’s death; and were completely inadmissible under Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). But the majority finds the incidents “harmless.” Why? Because the incidents show “appellant’s pattern of alcohol addiction and abuse,” of which the record was already “replete.” This is reversible error in itself.
(b) The majority finds it appropriate that the trial transcript is filled with “evidence that appellant suffered from an acute alcohol problem.” However, Bohannon was not indicted for having “an acute alcohol problem.” This evidence showed nothing about the indicted act of sleeping with her baby while intoxicated. Presumably, one who does not have an acute alcohol problem, but sleeps with her baby while intoxicated, will also be prosecuted therefor. Presumably. Thus, this evidence was simply inadmissible character evidence. Its admission was reversible error.
(c) The majority finds that the DFCS safety plan provided the requisite notice as to the dangerous act that Bohannon “consciously disregarded,” i.e., drinking. According to the majority, the plan showed Bohannon’s “knowledge of her problem [drinking] and of the danger it [drinking] could pose to her baby.” Under the majority’s analysis, the plan put Bohannon on notice that any act toward the baby was “reckless conduct,” if she had been drinking. In other words, “Of course she knew she shouldn’t sleep with the baby after drinking. She signed the plan! She knew she shouldn’t be around the baby at all after drinking.” Accordingly, the State was relieved of the burden of proving Bohannon’s conscious disregard of any specific act, including the indicted act. This is reversible error.
(d) The majority finds that the testimony of the Southwest Medical Examiner provides sufficient evidence of a “conscious disregard” of the results of sleeping with one’s baby while intoxicated. The medical examiner testified as to his personal experience with intoxication *839in “overlay’ cases. However, his personal experience demonstrates nothing about Bohannon’s “conscious disregard” of the indicted act. This is reversible error.
(e) The majority opinion makes reference to Bohannon as an alcoholic parent no less than 26 times throughout, but the majority declines to address alcoholism as a status that cannot provide a basis for prosecution, absent specific legislation to that effect. Robinson v. California, 370 U. S. 660 (82 SC 1417, 8 LE2d 758) (1962); Grimes v. Burch, 223 Ga. 856 (159 SE2d 69) (1968); cf. Powell v. Texas, 392 U. S. 514 (88 SC 2145, 20 LE2d 1254) (1968).
In short, the majority finds the crime in the actor, not the act. Bohannon can sleep with her baby, she just cannot be drunk and sleep with her baby. However, our criminal laws do not work in that way, either.
“No greater good could be done than by withdrawing emotion as a force from the administration of justice.” Bleckley, C. J., 9 Ga. Bar Assn. Annual Report, pp. 54, 61 (1887). For now, an act of “parenting under the influence” that results in injury may not be penalized by styling it “reckless conduct.” The essential elements of reckless conduct must be present: (1) proof of the commission of a specific act which is inherently dangerous in itself, whether or not injury has occurred; and (2) proof of the defendant’s conscious disregard of the specific, identifiable danger inherent in doing the act.1 Daniels v. State, 264 Ga. 460, 464 (448 SE2d 185) (1994). Herein, these essential elements simply are not present.
Following hard on the heels of Hall v. State, 268 Ga. 89 (485 SE2d 755) (1997), this case has followed “the traditional jurisprudential course” discussed by Justice Carley in his dissent thereto. Id. at 95. The evidence is in and the sufficiency thereof available for analysis in light of the expressed concerns. The state law offense of “reckless conduct” has become a catchall crime, wherein the State may reach conduct that it just does not like.
Meanwhile, if indeed Mary Bohannon is suffering from, as the majority puts it, “the heart-rending misfortune of the unlucky,” her current misfortune is in this Court’s refusal to recognize a basic, childhood tenet: the exercise of two legal rights does not make a wrong. Even if the unintended result of that exercise may be tragic. Whether one approves or not, Bohannon had a legal right to drink, and she had a legal right to sleep with her baby. The legislature may *840make her specific act a crime. This Court cannot.
Decided February 27, 1998 Benson, Phillips & Hoffman, Herbert W. Benson, for appellant. C. Paul Bowden, District Attorney, Gregory A. Clark, Assistant District Attorney, for appellee.Mary Bohannon’s conviction should be reversed. I dissent.
I am authorized to state that Judge Ruffin joins in this dissent.
An act’s inherent dangerousness, in and of itself, and its obvious, foreseeable consequences provide the requisite “notice” to the citizens of this state that such act may have criminal liability as “reckless conduct,” regardless of whether injury occurs. Hall v. State, 268 Ga. 89 (485 SE2d 755) (1997); Conyers v. State, 260 Ga. 506 (397 SE2d 423) (1990); Horowitz v. State, 243 Ga. 441 (254 SE2d 828) (1979).