Opinion
A11A0862
DECIDED: NOVEMBER 9, 2011
Shirley Ogilvie appeals from her convictions of vehicular homicide in the second degree (OCGA § 40-6-393 (c)) and failing to stop for a pedestrian in a crosswalk (OCGA § 40-6-91 (a)). She contends that the accusation was fatally defective and that the trial court erred in its charge to the jury. Because the trial court erred by declining to give Ogilvie's requested charge on accident, we reverse.
1. Ogilvie contends that both counts of the accusation were fatally defective because they did not specifically allege essential elements of the crimes. The accusation at issue provided:
COUNT 1
On behalf of the people of the State of Georgia, the undersigned . . . does hereby charge and accuse Shirley Rita Ogilvie with the offense of VEHICULAR HOMICIDE IN THE SECOND DEGREE O.C.G.A. § 40-6-393 (c) on February 2, 2009, in that Shirley Rita Ogilvie did, while operating a motor vehicle, cause the death of Lameron Michael Dunmore, a human being, without any intention to do so, through the violation of O.C.G.A. § 40-6-91, PEDESTRIAN IN CROSSWALK, by failing to stop and remain stopped to allow a pedestrian to cross the roadway within a crosswalk;
COUNT 2
The undersigned . . . does further charge and accuse ShirleyRita Ogilvie with the offense of PEDESTRIAN IN CROSSWALK on February 2, 2009, by failing to stop and remain stopped to allow a pedestrian to cross the roadway within a crosswalk in violation of O.C.G.A. § 40-6-91.
We find no merit in Ogilvie's claim because both counts of the accusation recited the Code section Ogilvie was charged with violating. While an accusation must set forth the essential elements of the charged crime,
[t]he true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. As long as the defendant is informed of the charges against him so that he may present his defense at trial and not be surprised by the evidence against him, as well as protect against another prosecution for the same offense, the indictment is sufficient. Thus, if a defendant is not misled to his prejudice by any imperfection in an indictment an appellate court will not reverse.
(Citations and punctuation omitted.) Broski v. State, 196 Ga. App. 116, 117 (1) ( 395 SE2d 317) (1990). The State's recitation of the proper criminal statutes in this particular case was sufficient to provide Ogilvie with notice of the elements of the charges against her. Id; State v. King, 296 Ga. App. 353, 354 ( 674 SE2d 396) (2009). We therefore affirm the trial court's denial of Ogilvie's motion to quash.
2. Ogilvie argues that the trial court erred by refusing to give her requested charge on accident. According to Ogilvie, she was entitled to the charge because she admitted the elements of the offenses with which she was charged and sought merely to justify or excuse it based upon the affirmative defense of accident. The State counters that the defense of accident does not apply to the strict liability offenses with which Ogilvie was charged.
While it is true that there is no element of criminal intent for the strict liability offenses contained in OCGA Title 40, Chapter 6, Uniform Rules of the Road, Hoffer v. State, 192 Ga. App. 378, 380 (1) ( 384 SE2d 902) (1989), it does not follow that the defense of accident is never available for these crimes. See Moore v. State, 258 Ga. App. 293, 294-295 (1) ( 574 SE2d 372) (2002) (trial court erred by refusing to give charge on accident in DUI and vehicular homicide case when jury could have found that truck decelerated so rapidly that defendant could not have avoided collision due to circumstances beyond his control); Morris v. State, 210 Ga. App. 617, 618 (2) ( 436 SE2d 785) (1993) (trial court erred by refusing to give accident charge in DUI and vehicular homicide case when evidence showed foggy conditions could have made it impossible for defendant to see stop sign).
OCGA § 16-2-2 provides: "[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence." The Georgia Supreme Court has held that "`Accident' is an affirmative defense whereby it must be established a defendant acted without criminal intent, was not engaged in a criminal scheme, and was not criminally negligent, i.e., did not act in a manner showing an utter disregard for the safety of others who might reasonably be expected to be injured thereby. [Cit.]" Wilson v. State, 279 Ga. 104, 105 (2) ( 610 SE2d 66) (2005).
A plain reading of this Code section demonstrates that the lack of a criminal intent element in a strict liability offense should not preclude the application of this affirmative defense in all strict liability cases. One of the requirements for application of this defense is a lack of criminal intent, and a strict liability offense, by its very nature, involves a lack of criminal intent.
Having determined that the defense of accident is available to a defendant charged with a strict liability offense, we must determine whether the charge should have been given based upon the particular facts of this case. "To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge. Whether the evidence is sufficient to authorize the giving of a charge is a question of law." (Citations and footnotes omitted.) Blackford v. State, 251 Ga. App. 324, 326 (2) ( 554 SE2d 290) (2001).
In this case, Ogilvie admitted that she struck the victim in a crosswalk and that she caused his death by failing to yield to him in the crosswalk. She based her request for a charge on accident based upon her testimony that she could not stop in time to avoid hitting him because he "was running across the street." The trial court reasoned that a charge on accident was not warranted because
[t]he State is charging that she did not yield to the pedestrian in the crosswalk. Her defense is that I did not see him until it was too late; the kid ran out. That's hardly admitting that she just didn't yield. . . .
I disagree that she admitted to the offense of failure to yield to pedestrian in the crosswalk. She said the kid ran out, and the only time she saw him was when she was right on top of the kids. She was already in the crosswalk. She didn't say, "I saw him, I didn't yield to him."
The trial court is correct that a charge on accident is not warranted based on a factual defense showing that no crime was committed. For example, if a defendant asserts that he did not run a red light because the light was green at the time he passed through an intersection, a charge on accident is not warranted. Hoffer, supra, 192 Ga. App. at 381 (2). The defendant in such a case is not asserting that he ran a red light as a result of misfortune or accident, but that he did not run a red light and therefore committed no crime.
In this case, however, Ogilvie admitted under oath that she failed to yield to a pedestrian in a crosswalk. She never claimed that the pedestrian was not in the crosswalk when she struck him or that her car was already in the crosswalk when she first saw him. The trial court therefore erred by refusing to give the requested charge on accident, and Ogilvie's convictions must be reversed. Morris, supra; Moore, supra.
Our opinion in Coates v. State, 216 Ga. App. 93, 94-95 (5) ( 453 SE2d 35) (1994), does not require a different result. In Coates, we affirmed the trial court's failure to charge on accident under OCGA § 16-2-2, holding, "[t]he fact that there was no criminal scheme or undertaking or criminal negligence is not a defense to a `strict liability' motor vehicle safety statute." Id. at 94. This statement should not be interpreted to mean that a charge on accident can never be given in a strict liability criminal case.
A similar statement in Arnold, supra, 228 Ga. App. at 471-472 (1), should also not be so construed.
The requirements for a charge on accident are: (1) a crime committed by accident or misfortune; and (2) the absence of (a) criminal intent; (b) a criminal scheme or undertaking; and (c) criminal negligence. OCGA § 16-2-2; Wilson, supra, 279 Ga. at 105 (2). In Coates, we merely held that an accident charge was not warranted based upon an absence of only factors (2) (b) and (c), an accurate statement of the law. 216 Ga. App. at 94. Additionally, the defendant in Coates was not arguing that the crime was "committed by accident or misfortune," but instead that no crime had been committed.
Judgment reversed. Mikell and Dillard, JJ., concur.