THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, 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.
http://www.gaappeals.us/rules
September 7, 2017
In the Court of Appeals of Georgia
A17A1252. SMITH v. THE STATE.
RICKMAN, Judge.
Following a jury trial, Quincy Alexander Smith was convicted of homicide by
vehicle in the first degree for causing the death of another person while driving with
an alcohol concentration of 0.08 grams or more (DUI-per se). He argues, among other
things, that the trial court committed reversible error in refusing to charge the jury on
the lesser included offense of homicide by vehicle in the second degree and in
admitting extrinsic act evidence. For the following reasons, we reverse Smith’s
conviction and remand this case for a new trial.
On appeal from a criminal conviction, we view the evidence in the
light most favorable to support the jury’s verdict, and the defendant no
longer enjoys a presumption of innocence. We do not weigh the
evidence or judge the credibility of the witnesses, but determine only
whether the evidence authorized the jury to find the defendant guilty of
the crimes beyond a reasonable doubt in accordance with the standard
set forth in Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LEd2d
560) (1979).
(Citation omitted.) Laster v. State, 340 Ga. App. 96, 97 (796 SE2d 484) (2017).
So construed, the evidence adduced at trial showed that shortly after 7:00 a.m.
on March 1, 2015, Smith was returning home from dropping off his wife and children
at a friend’s house. There was a light, misty rain and a low fog at that time. Upon
returning to his subdivision, Smith turned left into the path of a motorcycle being
driven by the victim, resulting in the motorcycle colliding with the rear passenger side
of Smith’s vehicle. The victim was killed in the collision.
The ensuing investigation revealed that Smith had been consuming alcohol the
previous night and had returned home sometime between 2:00 and 3:00 a.m. He slept
before being awakened to transport his wife and children.
Although Smith exhibited no visual signs of impairment at the scene, several
law enforcement officers noticed an odor of alcohol emanating from his person and
he admitted to having consumed alcohol sometime prior to the collision. A state
trooper conducted field sobriety tests at the scene and concluded that Smith was
driving under the influence of alcohol to the extent that he was less safe to drive
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(DUI-less safe), and a blood test conducted more than an hour after the incident
revealed Smith’s alcohol content to be .136.
Smith was arrested and charged with homicide by vehicle in the first degree for
causing the death of another person while DUI-per se, homicide by vehicle in the first
degree for causing the death of another person while DUI-less safe, and one count
each of DUI–per se and DUI-less safe. See OCGA §§ 40-6-391 (a) (2); 40-6-391 (a)
(5); 40-3-393 (a).
During the ensuing trial, the trial court admitted, over Smith’s objection,
extrinsic act evidence related to a prior arrest. Specifically, the State presented
evidence that approximately eight months prior to the instant collision, a police
officer had observed Smith driving around 6:00 a.m. with what appeared to be a road
sign embedded into the front of the vehicle. Smith’s windshield contained spiderweb-
type cracking and Smith had a visible wound on his head. Although the officer
smelled an odor of alcohol emanating from Smith and he admitted to drinking alcohol
two hours prior, Smith refused to submit to a State-administered test, and field
sobriety tests were not conducted due to his head injury. Smith was arrested and
originally accused of reckless driving. After he was indicted in the instant case,
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however, the prosecuting attorney amended the accusation and charged Smith with
DUI-less safe.
In his written requests to charge, Smith requested that the jury be permitted to
consider the lesser included offense of second degree vehicular homicide, and argued
during the charge conference that there was some evidence from which the jury could
conclude that the victim’s death was caused by Smith’s failure to yield as opposed to
his DUI. The State objected, and the trial court refused to give the charge. Smith
preserved his objection to the trial court’s failure to give the charge.
The jury found Smith guilty on all charges, and the trial court merged the latter
three charges into his conviction for first-degree vehicular homicide while DUI-per
se for sentencing purposes. This appeal follows.
1. Smith contends that the trial court erred in refusing to charge the jury on the
lesser included offense of vehicular homicide in the second degree pursuant to OCGA
§ 40-6-393 (c). We agree.
Under Georgia law, one commits the offense of vehicular homicide in the first
degree when he or she, without malice aforethought, causes the death of another
person through the violation of certain specified traffic laws, including DUI. See
OCGA § 40-6-383 (a). The offense of vehicular homicide in the second degree is
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committed when one, without an intention to do so, causes the death of another
person by violating any other Title 40 traffic law not specified in OCGA § 40-6-383
(a). See OCGA § 40-6-393 (c). “Because the difference between first and second
degree vehicular homicide is the culpability of the predicate traffic offense, second
degree vehicular homicide is considered a lesser included offense of first degree
vehicular homicide.” Brown v. State, 287 Ga. App. 755, 757 (652 SE2d 631) (2007);
see Hayles v. State, 180 Ga. App. 860, 861 (3) (350 SE2d 793) (1986).
When prosecuting a first-degree vehicular homicide case, the burden is on the
State to establish a causal connection between the defendant’s violation of the
applicable traffic offense–in this case the DUI–and the victims death. See Miller v.
State, 236 Ga. App. 825, 828 (1) (513 SE2d 27) (1999). That is to say, “the State must
prove that the defendant’s conduct [in violating OCGA § 40-6-391] was the ‘legal’
or ‘proximate’ cause, as well as the cause in fact, of the death.” (Footnote omitted.)
Id. at 828 (2).
Additionally, “a written request to charge a lesser included offense must always
be given if there is any evidence that the defendant is guilty of the lesser included
offense.” (Citation and punctuation omitted.) Shah v. State, 300 Ga. 14, 19 (2) (793
SE2d 81) (2016); accord Allaben v. State, 299 Ga. 253, 257 (3) (a) (787 SE2d 711)
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(2016). In the context of a vehicular homicide charge premised upon DUI, an
instruction on second degree vehicular homicide must be given “if there is any
evidence showing that a less culpable traffic offense caused the fatal collision.”
Brown, 287 Ga. App. at 757-758. Significantly, a defendant need not “be charged
with a traffic offense involving less culpable conduct before a charge on vehicular
homicide in the second degree is authorized.” Lefler v. State, 210 Ga. App. 609, 610-
611 (2) (436 SE2d 777) (1993).
Here, although there was sufficient evidence to authorize Smith’s conviction
of vehicular homicide in the first degree in the manner charged, there was also
evidence that he committed the separate traffic offense of failing to yield and that this
less-culpable traffic violation may have caused the collision resulting in the victim’s
death. See OCGA § 40-6-71 (“The driver of a vehicle intending to turn to the left
within an intersection . . . shall yield the right of way to any vehicle approaching from
the opposite direction which is within the intersection or so close thereto as to
constitute an immediate hazard.”). Indeed, the investigating officer testified that
Smith “turn[ed] in front of the motorcycle causing the motorcycle to hit the
passenger’s side,” and the State’s accident reconstruction expert testified as to his
conclusion that Smith “failed to yield [the] right of way while turning left.”
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[When] some evidence shows that [Smith] committed an act of
[failing to yield], a traffic violation ‘other than’ the more culpable
offense of DUI, and that such may have caused the collision and
resulting death, the fact that [Smith] may have also committed a DUI
does not demand a finding that the DUI was the sole proximate cause of
the collision and of the victim’s death.
(Citation and punctuation omitted.) Brown, 287 Ga. App. at 758. Because the State
must prove that the more culpable traffic offense actually caused the victim’s death,
a jury could believe that Smith was guilty of DUI, but nevertheless conclude that the
victim’s death was caused by Smith’s failure to yield. Id. “Under such circumstances,
there is no evidentiary or legal impediment to the return of a verdict of guilt as to DUI
and a verdict of guilt as to second degree vehicular homicide.” (Citation and
punctuation omitted.) Id. Consequently, the trial court erred in refusing to give
Smith’s request to charge on second degree vehicular homicide. See id. (remanding
for a new trial after concluding that the trial court erred in failing to give second-
degree vehicular homicide charge when there was evidence to support a finding that
the victim’s death was caused by appellant’s commission of the less-culpable traffic
offense of following too closely); Lefler, 210 Ga. App. at 610-11 (2) (holding the trial
court committed reversible error in failing to charge on second-degree vehicular
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homicide despite evidence that the victim’s death may have resulted from defendant’s
speeding and/or failing to obey a traffic signal, though neither traffic offense was
charged); Hayles, 180 Ga. App. at 860-861 (3) (granting appellant a new trial because
the trial court failed to charge the jury on vehicular homicide in the second degree
and “[t]he evidence did not . . . demand a finding that the DUI was the sole proximate
cause of the collision and of the victim’s death” when there was also evidence that
appellant was following too closely).
We reject the State’s argument that Otuwa v. State, 319 Ga. App. 339 (734
SE2d 273) (2012), requires a different result. In Otuwa, the trial court instructed the
jury on second degree vehicular homicide by speeding as a lesser included of some,
but not all, of the defendant’s first degree vehicular homicide charges. Id. at 342 (2).
Reversal was not required because the jury was given the opportunity to return a
guilty verdict on second degree vehicular homicide, but declined to do so. Id. It was
otherwise apparent by the verdict returned that the jury had considered and rejected
any argument that the victim in that case died as a result of a lesser-culpable traffic
offense committed by the defendant. Id. at 342-343 (2).
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Accordingly, we reverse Smith’s conviction and remand this case for a new
trial. See Brown, 287 Ga. App. at 758; Lefler, 210 Ga. App. at 610-11 (2); Hayles,
180 Ga. App. at 860-861 (3).
2. Smith also asserts that the trial court erred in admitting extrinsic act evidence
of his prior arrest that resulted in him being charged with DUI-less safe. The State
argued that the evidence should be admitted to show “knowledge, intent, and absence
of mistake or accident,” and the trial court allowed it for those purposes.1
In the recent case of Jones v. State, ___ Ga. ___ (Case No. S16G0890, decided
June 26, 2017), the Supreme Court of Georgia clarified the analysis applicable to the
admissibility of extrinsic act evidence, and specifically evidence of prior DUI, under
OCGA §§ 24-4-403 and 24-4-404 (b). Jones and the relevant cases discussed therein
were issued after the trial in this case. On remand, the trial court should reexamine the
admissibility of Smith’s prior arrest, taking into consideration the discussion and
analysis set forth in Jones.
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Notably, the State argued at trial and continues to argue on appeal that the
evidence was necessary because Smith’s defense of the collision was accident, and
yet the State steadfastly objected to Smith’s request to charge the jury on the defense
of accident, and the trial court refused to give the charge.
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3. In light of our holding in Division 1, we need not consider Smith’s
remaining enumerations of error.
Judgment reversed and case remanded. Andrews, J., concurs. Ellington, P. J.,
concurs in judgment only.
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