                              THIRD DIVISION
                             ELLINGTON, P. J.,
                         ANDREWS and RICKMAN, 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 7, 2017




In the Court of Appeals of Georgia
 A17A1252. SMITH v. THE STATE.

      RICKMAN, Judge.

      Following a jury trial, Quincy Alexander Smith was convicted of homicide by

vehicle in the first degree for causing the death of another person while driving with

an alcohol concentration of 0.08 grams or more (DUI-per se). He argues, among other

things, that the trial court committed reversible error in refusing to charge the jury on

the lesser included offense of homicide by vehicle in the second degree and in

admitting extrinsic act evidence. For the following reasons, we reverse Smith’s

conviction and remand this case for a new trial.

             On appeal from a criminal conviction, we view the evidence in the
      light most favorable to support the jury’s verdict, and the defendant no
      longer enjoys a presumption of innocence. We do not weigh the
      evidence or judge the credibility of the witnesses, but determine only
      whether the evidence authorized the jury to find the defendant guilty of
      the crimes beyond a reasonable doubt in accordance with the standard
      set forth in Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LEd2d
      560) (1979).


(Citation omitted.) Laster v. State, 340 Ga. App. 96, 97 (796 SE2d 484) (2017).

      So construed, the evidence adduced at trial showed that shortly after 7:00 a.m.

on March 1, 2015, Smith was returning home from dropping off his wife and children

at a friend’s house. There was a light, misty rain and a low fog at that time. Upon

returning to his subdivision, Smith turned left into the path of a motorcycle being

driven by the victim, resulting in the motorcycle colliding with the rear passenger side

of Smith’s vehicle. The victim was killed in the collision.

      The ensuing investigation revealed that Smith had been consuming alcohol the

previous night and had returned home sometime between 2:00 and 3:00 a.m. He slept

before being awakened to transport his wife and children.

      Although Smith exhibited no visual signs of impairment at the scene, several

law enforcement officers noticed an odor of alcohol emanating from his person and

he admitted to having consumed alcohol sometime prior to the collision. A state

trooper conducted field sobriety tests at the scene and concluded that Smith was

driving under the influence of alcohol to the extent that he was less safe to drive

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(DUI-less safe), and a blood test conducted more than an hour after the incident

revealed Smith’s alcohol content to be .136.

      Smith was arrested and charged with homicide by vehicle in the first degree for

causing the death of another person while DUI-per se, homicide by vehicle in the first

degree for causing the death of another person while DUI-less safe, and one count

each of DUI–per se and DUI-less safe. See OCGA §§ 40-6-391 (a) (2); 40-6-391 (a)

(5); 40-3-393 (a).

      During the ensuing trial, the trial court admitted, over Smith’s objection,

extrinsic act evidence related to a prior arrest. Specifically, the State presented

evidence that approximately eight months prior to the instant collision, a police

officer had observed Smith driving around 6:00 a.m. with what appeared to be a road

sign embedded into the front of the vehicle. Smith’s windshield contained spiderweb-

type cracking and Smith had a visible wound on his head. Although the officer

smelled an odor of alcohol emanating from Smith and he admitted to drinking alcohol

two hours prior, Smith refused to submit to a State-administered test, and field

sobriety tests were not conducted due to his head injury. Smith was arrested and

originally accused of reckless driving. After he was indicted in the instant case,



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however, the prosecuting attorney amended the accusation and charged Smith with

DUI-less safe.

      In his written requests to charge, Smith requested that the jury be permitted to

consider the lesser included offense of second degree vehicular homicide, and argued

during the charge conference that there was some evidence from which the jury could

conclude that the victim’s death was caused by Smith’s failure to yield as opposed to

his DUI. The State objected, and the trial court refused to give the charge. Smith

preserved his objection to the trial court’s failure to give the charge.

      The jury found Smith guilty on all charges, and the trial court merged the latter

three charges into his conviction for first-degree vehicular homicide while DUI-per

se for sentencing purposes. This appeal follows.

      1. Smith contends that the trial court erred in refusing to charge the jury on the

lesser included offense of vehicular homicide in the second degree pursuant to OCGA

§ 40-6-393 (c). We agree.

      Under Georgia law, one commits the offense of vehicular homicide in the first

degree when he or she, without malice aforethought, causes the death of another

person through the violation of certain specified traffic laws, including DUI. See

OCGA § 40-6-383 (a). The offense of vehicular homicide in the second degree is

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committed when one, without an intention to do so, causes the death of another

person by violating any other Title 40 traffic law not specified in OCGA § 40-6-383

(a). See OCGA § 40-6-393 (c). “Because the difference between first and second

degree vehicular homicide is the culpability of the predicate traffic offense, second

degree vehicular homicide is considered a lesser included offense of first degree

vehicular homicide.” Brown v. State, 287 Ga. App. 755, 757 (652 SE2d 631) (2007);

see Hayles v. State, 180 Ga. App. 860, 861 (3) (350 SE2d 793) (1986).

       When prosecuting a first-degree vehicular homicide case, the burden is on the

State to establish a causal connection between the defendant’s violation of the

applicable traffic offense–in this case the DUI–and the victims death. See Miller v.

State, 236 Ga. App. 825, 828 (1) (513 SE2d 27) (1999). That is to say, “the State must

prove that the defendant’s conduct [in violating OCGA § 40-6-391] was the ‘legal’

or ‘proximate’ cause, as well as the cause in fact, of the death.” (Footnote omitted.)

Id. at 828 (2).

       Additionally, “a written request to charge a lesser included offense must always

be given if there is any evidence that the defendant is guilty of the lesser included

offense.” (Citation and punctuation omitted.) Shah v. State, 300 Ga. 14, 19 (2) (793

SE2d 81) (2016); accord Allaben v. State, 299 Ga. 253, 257 (3) (a) (787 SE2d 711)

                                           5
(2016). In the context of a vehicular homicide charge premised upon DUI, an

instruction on second degree vehicular homicide must be given “if there is any

evidence showing that a less culpable traffic offense caused the fatal collision.”

Brown, 287 Ga. App. at 757-758. Significantly, a defendant need not “be charged

with a traffic offense involving less culpable conduct before a charge on vehicular

homicide in the second degree is authorized.” Lefler v. State, 210 Ga. App. 609, 610-

611 (2) (436 SE2d 777) (1993).

      Here, although there was sufficient evidence to authorize Smith’s conviction

of vehicular homicide in the first degree in the manner charged, there was also

evidence that he committed the separate traffic offense of failing to yield and that this

less-culpable traffic violation may have caused the collision resulting in the victim’s

death. See OCGA § 40-6-71 (“The driver of a vehicle intending to turn to the left

within an intersection . . . shall yield the right of way to any vehicle approaching from

the opposite direction which is within the intersection or so close thereto as to

constitute an immediate hazard.”). Indeed, the investigating officer testified that

Smith “turn[ed] in front of the motorcycle causing the motorcycle to hit the

passenger’s side,” and the State’s accident reconstruction expert testified as to his

conclusion that Smith “failed to yield [the] right of way while turning left.”

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             [When] some evidence shows that [Smith] committed an act of
      [failing to yield], a traffic violation ‘other than’ the more culpable
      offense of DUI, and that such may have caused the collision and
      resulting death, the fact that [Smith] may have also committed a DUI
      does not demand a finding that the DUI was the sole proximate cause of
      the collision and of the victim’s death.


(Citation and punctuation omitted.) Brown, 287 Ga. App. at 758. Because the State

must prove that the more culpable traffic offense actually caused the victim’s death,

a jury could believe that Smith was guilty of DUI, but nevertheless conclude that the

victim’s death was caused by Smith’s failure to yield. Id. “Under such circumstances,

there is no evidentiary or legal impediment to the return of a verdict of guilt as to DUI

and a verdict of guilt as to second degree vehicular homicide.” (Citation and

punctuation omitted.) Id. Consequently, the trial court erred in refusing to give

Smith’s request to charge on second degree vehicular homicide. See id. (remanding

for a new trial after concluding that the trial court erred in failing to give second-

degree vehicular homicide charge when there was evidence to support a finding that

the victim’s death was caused by appellant’s commission of the less-culpable traffic

offense of following too closely); Lefler, 210 Ga. App. at 610-11 (2) (holding the trial

court committed reversible error in failing to charge on second-degree vehicular


                                           7
homicide despite evidence that the victim’s death may have resulted from defendant’s

speeding and/or failing to obey a traffic signal, though neither traffic offense was

charged); Hayles, 180 Ga. App. at 860-861 (3) (granting appellant a new trial because

the trial court failed to charge the jury on vehicular homicide in the second degree

and “[t]he evidence did not . . . demand a finding that the DUI was the sole proximate

cause of the collision and of the victim’s death” when there was also evidence that

appellant was following too closely).

      We reject the State’s argument that Otuwa v. State, 319 Ga. App. 339 (734

SE2d 273) (2012), requires a different result. In Otuwa, the trial court instructed the

jury on second degree vehicular homicide by speeding as a lesser included of some,

but not all, of the defendant’s first degree vehicular homicide charges. Id. at 342 (2).

Reversal was not required because the jury was given the opportunity to return a

guilty verdict on second degree vehicular homicide, but declined to do so. Id. It was

otherwise apparent by the verdict returned that the jury had considered and rejected

any argument that the victim in that case died as a result of a lesser-culpable traffic

offense committed by the defendant. Id. at 342-343 (2).




                                           8
      Accordingly, we reverse Smith’s conviction and remand this case for a new

trial. See Brown, 287 Ga. App. at 758; Lefler, 210 Ga. App. at 610-11 (2); Hayles,

180 Ga. App. at 860-861 (3).

      2. Smith also asserts that the trial court erred in admitting extrinsic act evidence

of his prior arrest that resulted in him being charged with DUI-less safe. The State

argued that the evidence should be admitted to show “knowledge, intent, and absence

of mistake or accident,” and the trial court allowed it for those purposes.1

      In the recent case of Jones v. State, ___ Ga. ___ (Case No. S16G0890, decided

June 26, 2017), the Supreme Court of Georgia clarified the analysis applicable to the

admissibility of extrinsic act evidence, and specifically evidence of prior DUI, under

OCGA §§ 24-4-403 and 24-4-404 (b). Jones and the relevant cases discussed therein

were issued after the trial in this case. On remand, the trial court should reexamine the

admissibility of Smith’s prior arrest, taking into consideration the discussion and

analysis set forth in Jones.




      1
         Notably, the State argued at trial and continues to argue on appeal that the
evidence was necessary because Smith’s defense of the collision was accident, and
yet the State steadfastly objected to Smith’s request to charge the jury on the defense
of accident, and the trial court refused to give the charge.

                                           9
      3. In light of our holding in Division 1, we need not consider Smith’s

remaining enumerations of error.

      Judgment reversed and case remanded. Andrews, J., concurs. Ellington, P. J.,

concurs in judgment only.




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