Kеnneth Lauderback was convicted by a jury of one count of reckless driving. He appeals following the denial of his motion for new trial, contending that the trial court erred in its charge to the jury, by denying his demurrer to the accusation, and that the evidence was insufficient. Having сonsidered his claims of error, we now affirm.
Construed to support the verdict, as we must on appeal, the evidence presented at trial showed that on September 5, 2011,
Lauderback did not stop аfter he hit the dog, and one of the motorists at the scene got back into his vehicle and followed Lauder-back. According to that witness, who obtained Lauderback’s tag number and provided it to the police, Lauderback did not appear to apply his brakes after he hit the dog and did not appear to stop at the stop sign at the top of the hill.
Lauderback’s son, who was 17 years old at the time of trial, testified in his father’s defense. He said that his father did stop and slow down when he came upon the scene, but then proceeded to drive cautiously through when it appeared clear to do so. The son also testified that he did not realize the dog had been hit.
Lauderback also testified at trial and said that he did not realize what was going on and thought at first that several cars had broken down in the road. He said he did stop when he came to the parked cars, and then proceeded to go “safely” around the vehicles. He denied that he was driving recklessly or with disregard for the safety of others, and said that he did not see Moore motioning him to stop until he was already driving past her. He also denied making any sort of gesture to Moore.
1. Contrary to Lauderback’s fifth enumeration of error, the evidence recited above as well as other evidence adduced at trial was sufficient to find him guilty of the offense of reckless driving as
2. Lauderback also contends that the trial cоurt erred by denying his oral demurrer to the accusation, which was asserted after the jury was selected but before trial began. Lauderback was charged via accusation in the language of the reckless driving statute.
On appeal, Lauderback again complains that the accusation was fatally defective because it did not include any particularized facts and also points out that the accusation failed to include an allegation of the date as a material element of the offense.
If a defendant deсides to challenge the validity, specificity or form of an indictment, he or she must file a general and/or special demurrer seeking to quash the indictment. A general demurrer challenges the validity of an indictment by asserting that the substance of the indictment is legally insufficient to charge any crime.
(Footnote omitted; emphasis in original.) State v. Wilson,
3. Lauderback next argues that the trial court should have given his requested charge on his sole defense of accident.
The defense of accident applies “where it satisfactorily appears there was no criminal scheme оr undertaking, intention, or criminal negligence.” OCGA § 16-2-2.
But, a charge on accident is not authorized when the “accident” occurs as the defendant is driving recklessly. Black v. State,222 Ga. App. 80 , 81-82 (2) (473 SE2d 186 ) (1996); Helton v. State,216 Ga. App. 748 , 748-749 (455 SE2d 848 ) (1995) (defendant who was driving recklessly to evade police was not entitled to a charge on accident).
Dryden v. State,
the defеnse of accident is an affirmative defense, which is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it. Thus, if a defendant does not admit to committing any act which constitutes the offense charged, [he] is not entitled to a charge on the defense of accident.
(Punctuation and footnotes omitted.) Sevostiyanova v. State,
4. Lauderbaсk next contends that the trial court erred by refusing to give his requested charges on “bare suspicion” and “stopping, standing, or parking in the roadway.”
(a) First, the alleged criminal conduct of the other persons present at the scene was irrelevant. “The issue ... is not whether [the other motorists] were [stopping, standing, or parking in the roadway], but whether [Lauderback] drove recklessly. . . .” Winston,
(b) The trial court also did not err by refusing to give Lauder-back’s requested charge on bare suspicion. The evidence here, including the testimony of the two eyewitnesses, raised more than a mere suspicion of guilt. “A defendant is not entitled to charge on bare suspicion where the evidence raises more than a mere suspicion of his guilt.” (Citations and punctuation omitted.) Sherman v. State,
[i]t is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. The failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principle, is not grounds for reversal____Carson v. State,259 Ga. App. 21 , 24 (5) (576 SE2d 12 ) (2002).
Singleton v. State,
5. Lauderback also contends that the trial court’s instruction on reckless driving and reckless disregard failed to sufficiently distinguish between civil and criminal liability and thereforе allowed him to be convicted on a “lower level” of criminal intent.
The transcript shows that during its initial charge, the trial court explained to the jury that the crime of reckless driving requires a showing of criminal negligence, but that specific intent is not required. The court then defined сriminal negligence for the jury “as reckless or wanton conduct that shows an indifference to the injurious result of
During its deliberations, the jury sent out a request for a definition of reckless disregard. The trial court indicated that it was inclined to give a recharge based on language in Walden v. State,
The trial court then gave the jury the following charge:
There is no legal definition of just [reckless disregard] that I can read to you as if I would [be] reading from a dictionary. However, I can give you further instruction related to the charge of reckless driving. Charges of recklеss driving require proof of criminal negligence defined as not merely such negligence as may render one liable for damages in a civil suit, but recklessness or carelessness of such a character [as] to show a disregard of consequences or a heedless indiffеrence for the safety and rights of others who might reasonably be expected to be injured thereby.
Following this charge, and after the jury resumed its deliberations, Lauderback’s counsel stated: “Just for the record, I want to reserve all my objections and the objection to that as being different than what reckless disregard is.” On appeal, Lauderback now argues, for the first time, that the trial court’s “re-charge” was flawed because it did not provide an additional instruction about what constitutes “civil negligence,” omitted “thoughtless” or “utter” before “disregаrd,” and confused the jury about the concept of “foreseeability” of the injury. Further, Lauderback contends these failures allowed the jury to convict him on a “significantly lowered” burden of proof.
Pursuant to OCGA § 17-8-58 (a) “[a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” As set forth above, Lauderback initially appeared to acquiesce in the trial court’s proрosed response to the jury’s question. Lauderback posed an objection after the charge was given, but that objection was general and without any mention of the specific deficiencies he now points out on
Although Lauderback does not mention plain error in his brief on appeal,
we will review properly enumerated and argued claims of jury instruction error regardless of whether the appealing party specifically casts the alleged infirmity as “plain error” [; however,] parties should be advised that the hurdle to establishing plain error is high, . . . and therеfore that the failure to specifically articulate how the alleged error satisfies this high standard increases the likelihood that their claims in this regard will be rejected.
Kelly,
Without belaboring the point, we do not believe that the trial court’s recharge on criminal negligence, which was a correct statement of the law, Walden,
Judgment affirmed.
Notes
Upchurch Road is a two-lane road located in Henry County.
The accusation charged Lauderback “with the offense of RECKLESS DRIVING ([OCGA §] 40-6-390), for that the said accused, did in HENRY COUNTY, Georgia, on or about September 05, 2011, unlawfully drive a vehicle in reckless disregard for the safety of persons or property, contrary to the laws of this state, the good order, peace and dignity thereof.”
The accusation charged that Lauderback drove recklessly “on or about September 05, 2011.”