                             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

                                           6
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

                                          8
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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