FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, 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 26, 2017
In the Court of Appeals of Georgia
A17A1045. TURNER v. THE STATE.
BARNES, Presiding Judge.
Brehonna Nicole Turner was indicted for one count of malice murder, two
counts of felony murder, and two counts of aggravated assault. Following her trial,
a Douglas County jury found her guilty of the lesser included offense of first degree
homicide by vehicle as to the three murder counts, and not guilty of the two
aggravated assault counts. Turner filed a motion for new trial, which she later
amended, and alleged that the evidence was insufficient and that the trial court erred
by failing to give her requested charge on the lesser included offense of second
degree vehicular homicide for failure to maintain a lane. The trial court denied the
motion for new trial, and Turner now appeals. Following our review, we affirm.
On appeal from a criminal conviction, the defendant no longer
enjoys a presumption of innocence, and the evidence must be construed
in the light most favorable to support the verdict. In evaluating the
sufficiency of the evidence, we do not weigh the evidence or determine
witness credibility, but only determine whether a rational trier of fact
could have found the defendant guilty of the charged offenses beyond
a reasonable doubt. Thus, the jury’s verdict will be upheld as long as
there is some competent evidence, even though contradicted, to support
each fact necessary to make out the State’s case.
(Citations and punctuation omitted.) Evans-Glodowski v. State, 335 Ga. App. 484,
484-485 (781 SE2d 591) (2016).
So viewed, the evidence demonstrates that for approximately two years, Turner
was involved in a continuing dispute with Kimberly Kelley about Kelley’s
involvement with Tacayor Felder, the father of Turner’s children. The two women
verbally sparred on their social media accounts, and during the days leading up to the
homicide, Turner also made numerous harassing telephone calls to Kelley. On
January 31, 2014, the day of the incident, Turner drove to Kelley’s residence to
confront her and Felder, but left and came back later with a friend. Kelley, Felder, the
victim, who was Kelley’s cousin, and the victim’s boyfriend were among the people
present inside Kelley’s residence. When Turner returned to the residence for the
second time, Felder approached the car and the two engaged in a verbal and physical
altercation, which ended when Turner sprayed Felder with mace. Turner drove toward
the subdivision exit, then turned around and drove back down the street toward where
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Kelley and the victim were standing. She bumped Kelley on her leg with the car, then
turned around in the cul-de-sac, and drove back at a high rate of speed toward Kelley.
As she drove in that direction, Turner ran over the victim, pinning her beneath the car,
causing the victim’s death.
In a statement to police, Turner said that she went to the subdivision to
confront Kelley because she was tired of being disrespected, and that while she was
there, Felder reached into her car and hit her, and that she sprayed him with pepper
spray. Turner said that the friend who was with her in the car said to leave but that,
“I was just so blacked out and so mad that I turned back around and I was just driving
all over the place and I made a mistake and ran somebody over.” She also stated that
although, after initially driving off and being advised by her friend to not go back, she
“went back anyway,” and that “something just came over [her]”. Turner said she was
in a “fit of fury” and was driving “like a bat out of hell.”
1. Turner first contends that the evidence was insufficient to sustain her
conviction for first degree vehicular homicide because she did not commit the
predicate offense of reckless driving. Turner contends that the evidence instead
demonstrated that her car “accidentally wound up partially on top of the victim.” At
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trial, Turner put forth the affirmative defense of accident and maintained that the
victim’s death was caused by her inability to see because the car was full of mace.
Under Georgia law, any person who, without malice aforethought,
causes the death of another person through the violation of subsection
(a) of Code Section 40-6-163, Code Section 40-6-390 or 40-6-391, or
subsection (a) of Code Section 40-6-395 commits the offense of
homicide by vehicle in the first degree. OCGA § 40-6-393 (a). [Turner]
was [convicted of] first degree homicide by vehicle through a violation
of OCGA § 40-6-390, reckless driving. Reckless driving occurs when
a person drives a vehicle “in reckless disregard for the safety of persons
or property.” OCGA § 40-6-390 (a).
(Punctuation omitted.) Evans-Glodowski v. State, 335 Ga. App. at 486 (1).
Although Kelley maintains that the evidence was insufficient to demonstrate
reckless conduct, “whether a defendant’s manner of driving under the circumstances
demonstrated a reckless disregard for the safety of others is a question that is reserved
for the jury.” Shy v. State, 309 Ga. App. 274, 278 (4) (709 SE2d 869) (2011). Here,
given the evidence of Turner’s animosity and threats toward Kelley, eyewitness
testimony about Kelley’s manner of driving, Kelley’s statements to police that she
was driving in a “fit of fury,” and “like a bat out of hell,” the evidence was sufficient
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for the jury to find beyond a reasonable doubt that Turner was guilty of first degree
vehicular homicide.
2. Turner next contends that the trial court erred in not giving her requested
charge on homicide by vehicle in the second degree based on failure to maintain a
lane. Turner maintains that she was not driving in a reckless manner, but had only
failed to maintain her lane, which then resulted in the death of the victim. Thus,
according to Turner, the facts justified a lesser included charge of homicide by
vehicle in the second degree, and the trial court’s failure to so charge constituted plain
legal error. We do not agree.
“OCGA § 40-6-393 distinguishes between first degree and second degree
vehicular homicide according to the severity of the underlying traffic offense.” Otuwa
v. State, 319 Ga. App. 339, 341 (2) (734 SE2d 273) (2012). As previously noted,
under OCGA § 40-6-393 (a), first degree vehicular homicide is defined as causing the
death of another person through the violation of certain specified traffic laws,
including, as was found in this case, reckless driving. Whereas, in circumstances of
second degree vehicular homicide, the cause of the death is by violating any Title 40
traffic law not referenced in OCGA § 40-6-393 (a), such as speeding or, as Turner
claims, failure to maintain a lane. See OCGA § 40-6-393 (c). Because the difference
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between first and second degree vehicular homicide is the predicate traffic offense,
second degree vehicular homicide is considered a lesser included offense of first
degree vehicular homicide. Hayles v. State, 180 Ga. App. 860, 861 (3) (350 SE2d
793) (1986).
[W]ith regard to giving a defendant’s requested charge on a lesser
included offense[,]. . . .where the state’s evidence establishes all of the
elements of an offense and there is no evidence raising the lesser
offense, there is no error in failing to give a charge on the lesser offense.
Where a case contains some evidence, no matter how slight, that shows
that the defendant committed a lesser offense, then the court should
charge the jury on that offense.
(Footnote omitted.) Wright v. State, 319 Ga. App. 723, 732 (4) (738 SE2d 310)
(2013). Thus, a written request to instruct the jury on second degree vehicular
homicide must be given in a case charging first degree vehicular homicide if there is
any evidence showing that a less culpable traffic offense caused the fatal collision.
Hayles, 180 Ga. App. at 861-862 (3).
Turner acknowledges that she did not provide a written request to charge on
vehicular homicide in the second degree for failure to maintain a lane, but instead had
requested a charge of vehicular homicide in the second degree for speeding.
However, at the charge conference, Turner orally requested that the charge be
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changed to reflect the predicate offense of “failure to maintain the roadway and yield
to the person standing in the roadway,” rather than speeding. The trial court denied
the request, and, at the conclusion of the trial court’s jury charge, Turner excepted to
the charge as given, including the trial court’s failure to charge “homicide by vehicle
in the second degree, with regard to failure to exercise due care under OCGA § 40-6-
93.”
We note first that generally, “ [a] trial judge never errs in failing to instruct the
jury on a lesser included offense where there is no written request to so charge. [And,]
[a]n oral request to charge does not alter this mandate.” (Citations and punctuation
omitted.) McMurtry v. State, 338 Ga. App. 622, 625 (3) (291 SE2d 196) (2016).
Turner submitted a written charge for second degree vehicular homicide for speeding,
not failure to maintain a lane, which is a separate offense. Nonetheless,
OCGA § 5-5-24 (c) provides that “the appellate courts shall consider
and review erroneous charges where there has been a substantial error
in the charge which was harmful as a matter of law, regardless of
whether objection was made . . . or not.” Moreover, it is the duty of the
judge, with or without request, to give the jury an appropriate instruction
on each substantive point of issue involved in a case so as to enable the
jury to judiciously decide the guilt or innocence of a defendant.
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(Citation and punctuation omitted.) Williams v. State, 252 Ga. App. 280, 280 (556
SE2d 170) (2001).
Here, however, there was no evidentiary support for the charge of second
degree vehicular homicide for committing a traffic violation less culpable than
reckless driving, specifically, as Turner maintains, failure to maintain a lane. While
certainly, Turner ultimately failed to maintain control of the car in a designated
roadway, because the victim was killed in the driveway of a home in the subdivision,
the evidence does not support her contention that this less culpable offense caused the
victim’s death. Compare Hayles, 180 Ga. App. at 861 (3) (where some evidence
showed that the defendant “committed an act of following too closely, a traffic
violation ‘other than’ the more culpable offense of DUI,” and that the act may have
caused the collision and resulting death, the fact that the defendant may have also
committed a DUI did not “demand a finding that the DUI was the sole proximate
cause of the collision and of the victim’s death.” )
Here, the evidence, including Turner’s own statements to police that she was
driving in a “fit of fury,” and “like a bat out of hell,” her admission that she had
driven despite being blinded by mace, and the eyewitness testimony that Turner had
purposefully driven in the direction of Kelley and the victim did not support a charge
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of second degree vehicular homicide for failure to maintain a lane, and the trial court
did not err in refusing to so charge. Watkins v. State, 336 Ga. App. 145, 149 (3) (784
SE2d 11) (2016). (“It is axiomatic that a requested charge . . . be authorized by the
evidence. If any portion of the request to charge fails in this requirement[], denial of
the request is proper.”) (citations and punctuation omitted.)
Judgment affirmed. Mercier, J., concurs. McMillian, J., concurs fully to
Division 1, and in judgment only as to Division 2.
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