concurring in part and dissenting in part.
I concur as to Division 1 of the majority opinion, but respectfully dissent as to Division 2. I do so because the State failed to prove the elements of intent required by State v. Miller, 260 Ga. 669 (398 SE2d 547) (1990).
The purpose of the Anti-Mask Act, OCGA § 16-11-38, is discussed at length in Miller: “Its passage was preceded by a period of increased harassment, intimidation and violence against racial and religious minorities carried out by mask-wearing Klansmen and other ‘hate’ organizations.” 260 Ga. at 672. The sponsor of the act testified that “prior to the passage of the act, mask-wearing had helped to create a climate of fear that prevented Georgia citizens from exercising their civil rights.” Id. The Supreme Court concluded that “[t]he statute was passed in response to a demonstrated need to safeguard the people of Georgia from terrorization by masked vigilantes. . . . The statute is intended to protect the citizens of Georgia from intimida*27tion, violence, and actual and implied threats; it is also designed to assist law enforcement in apprehending criminals, and to restore confidence in law enforcement by removing any possible illusion of government complicity with masked vigilantes.” Id.
The majority recognizes that the Court in Miller construed the statute narrowly so as to “require [ ] the state to prove that the mask is worn with an intent to conceal the identity of the wearer. Further, we construe the statute in conjunction with its policy statement to apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.” (Emphasis supplied.) 260 Ga. at 674. The evidence in this case fails to meet this standard under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
While the evidence is in conflict as to whether the ten-year-old child witness and her companion were “scared” or even startled by appellant’s conduct in wearing the football helmet and mask,2 there was insufficient evidence that appellant intended to conceal his identity or to engage in “intimidation, threats or violence.” Appellant testified that he found a football helmet and green plastic mask in a trash can while collecting aluminum cans, and that he put them on because it was a holiday weekend. Under the exception created by OCGA § 16-11-38 (b) (1), the statute does not apply to “[a] person wearing a traditional holiday costume on the occasion of the holiday.” That exception obviously does not apply here, since Memorial Day weekend is not a holiday during which masks or costumes are traditionally worn. However, this does not address the limitation created in Miller as to specific intent on the part of the wearer.
On the way home, appellant met some children aged nine or ten years, played with them for about ten minutes, and they appeared to enjoy it. These children followed him down the street calling him by name, so it does not appear that he had reason to believe that the mask concealed his identity. While appellant was cautioned by his shut-in friend that he “might get into trouble” by wearing the mask, he told him “you know, it was — holidays, you know, and everybody wears a mask on holidays, that’s best known.”
Appellant testified that he did not expect that anyone would be frightened or intimidated by his wearing the mask. The arresting officer testified, over objection, that appellant stated his intention to *28“scare” his shut-in friend “as a prank,” and that “he was just following [the child] hoping to — hoping to scare her.” Nevertheless, it is nowhere shown that such an intent to “scare” or “intrigue” was anything other than a somewhat simple-minded attempt by appellant to amuse himself or others or that it rose to the level of intent required by Miller.
Decided October 5, 1993 Reconsideration denied November 19, 1993 Rosemary E. Myers, for appellant. Kenneth W. Mauldin, Solicitor, for appellee.Miller acknowledges that the intent of the Anti-Mask Act, as expressed by its policy statement, is to thwart “masked vigilantes” who by intimidation, threats, or violence prevent Georgia citizens from exercising their civil rights. While appellant’s conduct was, to say the least, both eccentric and ill-advised, the evidence did not establish beyond a reasonable doubt either that appellant intended to conceal his identity or that he knew or reasonably should have known that his conduct would provoke a reasonable apprehension of intimidation, threats or violence as contemplated in Miller.3 The statute serves a necessary, but limited, purpose. Its application should be strictly limited in conformity with the holding in Miller. Since there was insufficient evidence to authorize a finding of guilt under the standard of proof prescribed in Jackson v. Virginia, 443 U. S. 307, supra, I would reverse.
I am authorized to state that Chief Judge Pope, Presiding Judge Birdsong, and Judge Andrews join in this opinion.Amanda Cooper, in Response to a leading question from the prosecution, testified that she felt “scared.” However, she later testified that she recognized appellant as a local resident when he took off his mask, that she saw him every day traveling around with a buggy collecting cans, and agreed with the suggestion of defense counsel that she and her friend thought “this was kind of stupid.”
Prosecution might have been more appropriate here under the provisions of OCGA § 16-11-36 (b) (loitering and prowling), particularly since that statute requires a law enforcement officer, before making an arrest, to afford a suspect an opportunity to “identify himself and explain his presence and conduct.”