Robertson avers that the jury - given its question to the trial court - might have considered the BAC evidence in assessing whether she was driving recklessly, citing Fraser v. State, 263 Ga.App. 764, 766 (1), n. 7 (589 S.E.2d 329) (2003). However, the jury's question appears to indicate the opposite of what Robertson contends, as the jury asked if a driver could be convicted of reckless driving "when they have alcohol in their system even if it is not enough to count as a DUI?"
Driving at a reckless rate of speed is not a forcible felony. See, e.g., Fraser v. State, 263 Ga.App. 764, 765-766 (1) (589 S.E.2d 329) (2003) (evidence that a defendant was "driving at an excessive rate of speed given the posted speed limit and the driving conditions existing at the time" was sufficient to sustain a conviction for reckless driving); OCGA ยง 16-1-3 (6) (defining a forcible felony as "any felony which involves the use or threat of physical force or violence against any person"). 2. The Estate also asserts that the trial court should have granted summary judgment in its favor on Schantz's claims asserted under the Georgia Constitution.
(Punctuation, footnote and emphasis omitted.) Fraser v. State, 263 Ga.App. 764, 765โ766(1), 589 S.E.2d 329 (2003); see also Smith v. State, 319 Ga.App. 164, 173(7)(a), 735 S.E.2d 153 (2012). Here, although the experts' speed estimations at the time of braking varied from 54 miles per hour to 66 miles per hour, both calculations exceeded the 35 mile per hour speed limit sign posted for the curve where the collision occurred.
1. Although Hobbs does not challenge the sufficiency of the evidence, we find that the jury was authorized to find him guilty beyond a reasonable doubt of the offenses for which he was convicted. See generally Williams v. State, 271 Ga.App. 755, 756, 610 S.E.2d 704 (2005) (terroristic threats); Jones v. State, 259 Ga.App. 506, 509(2), 578 S.E.2d 165 (2003) (improper backing); McKay v. State, 264 Ga.App. 726, 728(1), 592 S.E.2d 135 (2003) (failure to stop at or return to the scene of an accident); Fraser v. State, 263 Ga.App. 764, 766(1), 589 S.E.2d 329 (2003) (reckless driving). 2.
As the trial court's jury instructions regarding strict liability were supported by case law and by the facts of the present case, we find no error. See Fraser v. State, 263 Ga.App. 764, 765(1), 589 S.E.2d 329 (2003). (b) Although Smith contends that the trial court erred in failing to give her requested charge on accident, the record shows that the trial court gave a charge on accident that tracked the language in her requested charge.
(Punctuation, footnote and emphasis omitted.) Fraser v. State, 263 Ga.App. 764, 765โ766(1), 589 S.E.2d 329 (2003). Here, the state trooper testified that Travis was driving 32 miles per hour above the posted speed limit on a portion of the highway designated as a construction zone and along which construction barrels were situated.
Although Taylor suggests that speeding always constitutes reckless driving, we cannot agree. See, e.g., Fraser v. State, 263 Ga. App. 764, 765 (1) ( 589 SE2d 329) (2003) (noting that speeding can form the basis for a reckless driving conviction). In short, the felony vehicular homicide conviction demanded proof above and beyond that required for the misdemeanor offense.
This evidence authorized the jury to find Schlanger guilty of reckless driving beyond a reasonable doubt. See, e.g., Fraser v. State, 263 Ga. App. 764, 765-766 (1) ( 589 SE2d 329) (2003) (recognizing that speeding alone can form the basis of a reckless driving conviction); Carson v. State, 250 Ga. App. 876 (1) ( 553 SE2d 312) (2001) (driver exited the road into a grassy area and hit a pedestrian). The jury obviously chose to disbelieve Schlanger's claim that his departure from the roadway resulted from the negligence of a second, unidentified driver as opposed to his own and the jury was authorized to do so.
Pinch v. State, 265 Ga. App. 1, 4-5 (3) ( 593 SE2d 1) (2003).Fraser v. State, 263 Ga. App. 764, 765-766 (1) ( 589 SE2d 329) (2003). 2.
In determining whether one crime factually merged into another, the dispositive issue is whether the state used up its evidence in proving the crime. If the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA ยง 16-1-6.Fraser v. State, 263 Ga. App. 764, 766 (2) ( 589 SE2d 329) (2003) (punctuation and footnote omitted); see also Curtis v. State, 275 Ga. 576, 577 (1) ( 571 SE2d 376) (2002). We reject Lawson's contention because he has failed to show that the aggravated assault was established by the same facts used to prove the simple battery.