Otuwa v. State, 319 Ga. App. 339

Otuwa Otuwa was convicted of first degree vehicular homicide, DUI, and reckless driving.
Appellant contested the trial court’s denial of a jury instruction on second degree vehicular homicide as a lesser included offense for six first degree counts.
The trial court permitted the lesser included instruction only for the reckless driving-based first degree counts, denying it for the four DUI-based counts.
The jury found Otuwa guilty on all nine charges, and the trial court merged several counts into two first degree vehicular homicide by less-safe DUI counts.
On appeal, the issue is whether the court erred by not providing the second degree vehicular homicide instruction for all six first degree counts; the appellate court affirms.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by denying second degree vehicular homicide as a lesser included offense for all six counts.	Otuwa argues the jury should have been instructed on second degree vehicular homicide for all counts.	The State argues the law distinguishes first vs. second degree Vehicular Homicide based on the underlying driving offense; speeding is not applicable to all DUI counts.	No error; charge proper; jury could still convict on first degree via DUI or reckless driving.

Reese v. State, 270 Ga. App. 522 (2004) (standard of appellate review for sufficiency of evidence in criminal cases)
Jackson v. Virginia, 443 U.S. 307 (1979) (sufficiency review standard for ‘rational trier of fact’)
Hayles v. State, 180 Ga. App. 860 (1986) (distinguishes first vs. second degree vehicular homicide based on underlying traffic offense)
Hill v. State, 285 Ga. App. 503 (2007) (addressed charging second degree vehicular homicide by speeding as lesser included offense when appropriate)
Milam v. State, 255 Ga. 560 (1986) (abolition of inconsistent verdict rule not applicable here)