MILLER, P. J., BROWN and GOSS, JJ.
Miller, Presiding Judge.
Justin Freeman was accused of loitering upon school premises,
in violation of OCGA § 20-2-1180. The State appeals from
the trial court's grant of a general and special demurrer
to Freeman, arguing that the language of the accusation
sufficiently apprised Freeman of the crime alleged. Because
the accusation was subject to a general demurrer, we affirm.
review a trial court's ruling on a general or special
demurrer de novo in order to determine whether the
allegations in the indictment are legally sufficient."
(Citations omitted.) Sallee v. State, 329 Ga.App.
612, 616 (2) (765 S.E.2d 758) (2014).
single count, the accusation charged Freeman
with the offense of Loitering upon school premises, for that
the said accused in the County aforesaid, on or about the
11th day of January, 2017, did, without having a legitimate
cause thereon, to wit: for the purpose of contacting a
[s]tudent and obtaining his personal information, remain in
the school safety zone of Rockmart Middle School, after
having been told not to do so by law enforcement on a
previous occasion where he had entered or attempted to
enter school property, to wit: a Polk County school bus, for
the same purpose, in violation of OCGA [§] 20-2-1180 . .
pro se, Freeman filed several pre-trial motions, including a
motion to dismiss and/or quash the accusation. Freeman
requested that the trial court dismiss the accusation
"on the grounds of demurrer" because it failed to
allege that he had violated OCGA § 20-2-1180.
Specifically, Freeman contended that OCGA § 20-2-1180
does not apply to instances where an individual goes to a
school after having been told not to do so on a
separate occasion, and that no one had asked him to
leave the school on January 11, 2017.
trial court held a hearing on Freeman's motions and
construed his motion to dismiss and/or quash as a general and
special demurrer. At the hearing, the State contended that it
had sufficiently alleged a violation of OCGA § 20-2-1180
(b) (1). The trial court, however, dismissed the accusation,
stating as follows:
As a general demur[r]er, this motion is granted because the
accusation fails to allege either OCGA Section 20-2-1l80 (b)
(1) or (b) (2) was violated and the Code plainly requires
that one of those two conducts must have occu[r]red before a
crime is committed. As a special demur[r]er this motion is
granted because the accusation must be perfect in form and
substance. The Defendant is entitled to be notified which
violation he is to defend. When a statute allows alternative
ways in which a crime may be committed, the accusation or
charging instrument must allege which alternative the conduct
violates or else it is subject to special
State contends that the trial court erred in granting
Freeman's motion because the accusation sufficiently
tracked the language of OCGA § 20-2-1180 (b) (1), and
therefore the State's failure to specifically cite that
subsection did not render the accusation
invalid. Pretermitting this issue, however, the
accusation was nevertheless subject to a general demurrer
because it did not allege facts constituting Freeman's
violation of a criminal statute.
general demurrer challenges the validity of an [accusation]
by asserting that the substance of the [accusation] is
legally insufficient to charge any crime." (Citation
omitted.) Poole v. State, 326 Ga.App. 243, 247 (2)
(a) (756 S.E.2d 322) (2014). "[T]he true test of the
sufficiency of an indictment to withstand a general demurrer
is found in the answer to the question: Can the defendant
admit the charge as made and still be innocent? If he can,
the indictment is fatally defective." (Citation and
punctuation omitted.) Id. at 247-248 (2) (a).
OCGA § 20-2-1180 provides:
(a)It shall be unlawful for any person to remain in or on any
school safety zone in this state or to remain in or on any
such school safety zone when such person does not have a
legitimate cause or need to be present thereon. Each
principal or designee of each public or private school in
this state shall have the authority to exercise such control
over the buildings and grounds upon which a school is located
so as to prohibit any person ...