                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                           RICKMAN and MARKLE, 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


                                                                      March 4, 2019




In the Court of Appeals of Georgia
 A18A2112. HEATH v. THE STATE.

      MCFADDEN, Presiding Judge.

      After a jury trial, Kristine Heath was convicted of homicide by vehicle in the

first degree, homicide by vehicle in the second degree, five counts of serious injury

by vehicle, and failure to stop for a stop sign.1 The trial court denied Heath’s motion


      1
       The events leading to Heath’s convictions occurred on June 17, 2011.
Judgment of conviction was entered August 14, 2013, and Heath filed a motion for
new trial on September 13, 2013. On March 17, 2014, she filed a motion to amend
her sentence under OCGA § 17-10-1 (f), which the trial court granted on July 23,
2014, reducing her sentence from its original term of 20 years of imprisonment
followed by 10 years of probation to a new term of 15 years of imprisonment followed
by 15 years of probation.
       New counsel amended the motion for new trial on March 13, 2017, and again
on February 19, 2018. The trial court denied the motion for new trial on May 1, 2018,
Heath filed a notice of appeal on May 11, 2018, and the case was docketed in this
court on July 11, 2018.
       Heath was released on parole after five years of incarceration on August 24,
2018.
for new trial and she filed this appeal. She argues that the evidence was insufficient

to support the felony convictions; that she received ineffective assistance of counsel;

that she was deprived of her right to be present at all critical stages of the trial; and

that the court plainly erred by failing to instruct the jury on proximate cause.

      We reverse Heath’s convictions for homicide by vehicle in the first degree,

homicide by vehicle in the second degree, and serious injury by vehicle because her

trial counsel provided ineffective assistance by failing to demur to fatally defective

counts in the indictment. We do not reach the other claims of error that affect only the

convictions based on those counts. We affirm Heath’s conviction for failure to stop at

a stop sign.

      1. Facts and procedural posture.

      Viewed in the light most favorable to the jury’s verdict, Cunningham v. State,

304 Ga. 789, 790 (822 SE2d 281) (2018), the evidence showed that Heath was



       The more than 4½-year delay in ruling on Heath’s motion for new trial is not
fully explained. It is the duty of the trial court and the parties to ensure that
post-conviction motions are decided without unnecessary delay. See Owens v. State,
303 Ga. 254 (4) (811 SE2d 420) (2018). Effective January 1, 2019, amended Uniform
Superior Court Rule 41.2 places upon the trial court the “responsibility to monitor the
progress of the case.” The amended rule requires the trial court to schedule status
conferences regarding the motion for new trial approximately every 180 days until the
motion is heard. Uniform Superior Court Rule 41.2.

                                           2
attending a family reunion at Clarks Hill Lake the weekend of June 17, 2011. She

arrived Friday evening.

      Heath and her group left to go to a restaurant for dinner. Heath drove the group

in her vehicle, traveling on Ridge Road towards its intersection with Washington

Road three or four miles away. The intersection is governed by a stop sign.

      Heath was driving about forty miles per hour, five miles below the posted speed

limit. She rounded the last curve before the intersection, drove a 220-foot

straightaway, and then ran the stop sign without slowing down; she never applied the

brakes.

      Heath collided with a Jeep Cherokee traveling on Washington Road in which

a driver and five passengers were riding. In the collision, the driver of the Cherokee

injured her knees, broke her ankle, broke ribs, and suffered lacerations to her liver.

One of the passengers damaged her spleen and liver, bruised her heart, punctured a

lung, and broke ribs. A second passenger in the Cherokee broke pelvic bones and

fractured an eye socket.

      In Heath’s vehicle, one passenger was killed. A second passenger suffered a

crushed pelvis and a separation between his sacrum and hip, and lacerated his liver

and a kidney. A third passenger broke his pelvis and suffered a contusion to his head.


                                          3
      Heath was charged with one count of homicide by vehicle in the first degree

(OCGA § 40-6-393 (a)) based on reckless driving (OCGA § 40-6-390); one count of

homicide by vehicle in the first degree (OCGA § 40-6-393 (a)) based on driving under

the influence of alcohol (OCGA § 40-6-391); six counts of serious injury by vehicle

(OCGA § 40-6-394) based on reckless driving (OCGA § 40-6-390) and driving under

the influence of alcohol (OCGA § 40-6-391); failure to stop at a stop sign (OCGA §

40-6-72); and violation of the open container law (OCGA § 40-6-253). The trial court

granted the state’s request for entry of nolle prosequi on one of the serious-injury-by-

vehicle counts and the open-container count.

      The jury found Heath guilty of homicide by vehicle in the first degree based on

reckless driving; five counts of serious injury by vehicle; and failure to stop at a stop

sign. It found Heath guilty of homicide by vehicle in the second degree as a lesser-

included offense of homicide by vehicle in the first degree based on driving under the

influence of alcohol. The trial court merged the second-degree homicide-by-vehicle

conviction and the failure-to-stop-at-a-stop-sign conviction, and sentenced Heath to

a total of 15 years imprisonment followed by 15 years probation. In a brief order, the

trial court denied Heath’s motion for new trial, and this appeal followed.

      2. Ineffective assistance of counsel.


                                           4
      Heath argues that trial counsel was ineffective for failing to file a general

demurrer to the felony counts of the indictment. We agree and reverse the convictions

entered on those counts.

            To establish an ineffective assistance claim, an appellant must
      show not only that [her] counsel’s performance was deficient but also
      that the deficiency so prejudiced [her] as to create a reasonable
      probability that but for counsel’s errors, the outcome of the trial would
      have been different. Failure to satisfy both requirements is fatal to an
      ineffectiveness claim.


Everhart v. State, 337 Ga. App. 348, 353 (3) (786 SE2d 866) (2016) (citation

omitted).

      Heath argues that trial counsel was ineffective for failing to file a general

demurrer because the indictment omitted material elements in the counts charging

homicide by vehicle and serious injury by vehicle.

            The Sixth Amendment to the United States Constitution states that
      criminal defendants shall “be informed of the nature and cause of the
      accusation against them.” It is established in Georgia that satisfaction of
      this fundamental principle requires that a criminal indictment which
      does not recite language from the Code must allege every essential
      element of the crime charged.




                                          5
Everhart, 337 Ga. App. at 354-355 (3) (a) (quoting Smith v. Hardrick, 266 Ga. 54,

54 (1) (464 SE2d 198) (1995)). “A general demurrer challenges the sufficiency of the

substance of an indictment. The true test of the sufficiency of an indictment to

withstand a general demurrer is found in the answer to the question: Can the

defendant admit the charge as made and still be innocent? If he can, the indictment

is fatally defective.” Brown v. State, 322 Ga. App. 446, 453 (3) (745 SE2d 699)

(2013). In that regard,

      [t]o withstand a general demurrer, an indictment must: (1) recite the
      language of the statute that sets out all the elements of the offense
      charged, or (2) allege the facts necessary to establish violation of a
      criminal statute. If either of these requisites is met, then the accused
      cannot admit the allegations of the indictment and yet be not guilty of the
      crime charged.


Jackson v. State, 301 Ga. 137, 141 (1) (800 SE2d 356) (2017). However, “an

indictment which omits an essential element of the predicate offense in a count

charging a compound offense[, such as vehicular homicide and serious injury by

vehicle,] can nonetheless satisfy the requirements of due process as long as the

indictment charges the predicate offense completely in a separate count.” Mikenney

v. State, 277 Ga. 64, 65 (1) (586 SE2d 328) (2003) (citation and punctuation



                                          6
omitted). “[A]n indictment alleging merely that the accused’s acts were in violation

of a specified criminal Code section” is defective. Jackson, 301 Ga. at 139 (1)

(citation omitted).

      In this case, none of the counts charging compound offenses contained the

essential elements of the predicate offenses of reckless driving and driving under the

influence of alcohol, nor did they allege the facts necessary to establish violations of

the predicate offenses. Further, the indictment did not contain separate counts

charging the predicate offenses.

      “The essential elements of the offense [of reckless driving] are set forth in

OCGA § 40-6-390 (a), which provides: ‘Any person who drives any vehicle in

reckless disregard for the safety of persons or property commits the offense of reckless

driving.’” Ross v. State, 235 Ga. App. 7, 8-9 (508 SE2d 424) (1998) (citations and

punctuation omitted). The essential elements of the offense of driving while under the

influence of alcohol to the extent that it is less safe to drive are set forth in OCGA §

40-6-391 (a) (1), which provides: “A person shall not drive or be in actual physical

control of any moving vehicle while[ u]nder the influence of alcohol to the extent that

it is less safe for the person to drive[.]” See also Lee v. State, 280 Ga. App. 706, 707

(634 SE2d 837) (2006) (citations omitted) (the offense of driving while under the


                                           7
influence of alcohol to the extent that it is less safe to drive has “three elements: (1)

driving, (2) under the influence of alcohol, (3) to the extent that it is less safe for the

person to drive.”). The essential elements of the offense of driving under the influence

of alcohol, per se are set forth in OCGA § 40-6-391 (a) (5), which provides: “A

person shall not drive or be in actual physical control of any moving vehicle while[

t]he person’s alcohol concentration is 0.08 grams or more at any time within three

hours after such driving or being in actual physical control from alcohol consumed

before such driving or being in actual physical control ended[.]”

       The count in the indictment charging first degree vehicular homicide based on

reckless driving alleged that Heath:

       in the County of Columbia and State of Georgia, on the 17th day of June,
       2011, did without malice aforethought, cause the death of [the victim],
       a human being, through a violation of Official Code of Georgia
       Annotated Section 40-6-390, Reckless Driving, in that said accused,
       while operating a motor vehicle with six passengers and while distracted
       by events taking place in the vehicle, failed to stop for a stop sign and
       entered an intersection at a high rate of speed resulting in a collision
       with another vehicle, contrary to the laws of said State, the good order,
       peace and dignity thereof.


This count failed to include “the crucial language that [Heath] drove with reckless

disregard for the safety of persons or property. The [indictment] is therefore

                                            8
substantively defective; [Heath] could admit all the allegations of the [indictment] and

still be innocent of reckless driving because there would be no admission that [s]he

recklessly disregarded the safety of persons or property.” Ross, 235 Ga. App. at 8-9

(citation, punctuation, and emphasis omitted). Cf. Howard v. State, 252 Ga. App. 487,

488-489 (2) (555 SE2d 884) (2001) (since the reckless-driving count of the

indictment included the crucial language that defendant drove with “reckless

disregard for the safety of persons and property,” vehicular-homicide count based on

the predicate offense of reckless driving contained the elements of the offense,

apprised defendant of the charges he had to be prepared to answer at trial, and was

legally sufficient). Because the indictment omitted an essential element of the

predicate offense, the count charging a compound offense based on this predicate

offense was void. See Everhart, 337 Ga. App. at 355 (3) (a). See also Borders v.

State, 270 Ga. 804, 806 (1) (514 SE2d 14) (1999) (indictment void if it fails to charge

a necessary element of the crime).

      The count in the indictment charging first degree vehicular homicide based on

driving under the influence of alcohol alleged that Heath:

      in the County of Columbia and State of Georgia, on the 17th day of June,
      2011, did without malice aforethought, cause the death of [the victim],
      a human being, through a violation of Official Code of Georgia

                                           9
       Annotated Section 40-6-391, Driving Under the Influence of Alcohol,
       contrary to the laws of said State, the good order, peace and dignity
       thereof.


The indictment neither recited the language of the statute that sets out all the elements

of the driving-under-the-influence offense — that Heath was under the influence of

alcohol to the extent that it was less safe for her to drive or that her alcohol

concentration was 0.08 or more — nor alleged the facts necessary to establish

violation of the driving-under-the-influence statute. Because neither of these requisites

was met, Heath could admit the allegations of the indictment and yet not be guilty of

driving under the influence. Jackson, 301 Ga. at 141 (1). And because the indictment

omitted an essential element of the predicate offense, the count charging a compound

offense based on this predicate offense was void. See Everhart, 337 Ga. App. at 355

(3) (a).

       The counts in the indictment charging serious injury by vehicle were based on

both reckless driving and driving under the influence, and alleged that Heath:

       in the County of Columbia and State of Georgia, on the 17th day of June,
       2011, did without malice, cause bodily harm to [the victims,] human
       being[s], by rendering a member of [their] bod[ies] . . . useless through
       a violation of the Official Code of Georgia Annotated Section 40-6-390,
       Reckless Driving and Section 40-6-391, Driving Under the Influence of

                                           10
      Alcohol, in that [the victims were injured in a described manner],
      contrary to the laws of said State, the good order, peace and dignity
      thereof.


These counts suffer the same deficiencies as the vehicular homicide counts and

likewise were void.

      “Had [trial] counsel filed a general demurrer, [these counts] would have been

dismissed.” Everhart, 337 Ga. App. at 355 (3) (a). So no convictions for these counts

or for lesser-included offenses under these counts could have been obtained.

“Accordingly, [Heath’s] trial counsel’s failure to challenge [these] count[s] constitutes

deficient performance, contributed to [Heath’s] conviction on [] void count[s], and

therefore harmed Heath and prejudiced [her] case.” Id. See also Polk v. State, 275 Ga.

App. 467, 469 (1) (620 SE2d 857) (2005) (counsel’s performance was deficient for

failing to timely challenge void count of indictment, the failure to do so contributed

to defendant’s conviction on a void count, and thus harmed defendant and prejudiced

his case). The trial court erred in denying the motion for new trial on this ground and

that ruling must be reversed.

      We do not reach Heath’s remaining enumerations of error that concern only

convictions entered on the void counts of the indictment. We address only the



                                           11
enumeration that alleges error that could affect Heath’s conviction for failing to stop

at a stop sign. We observe that because the statute of limitation has run, Heath may not

be re-indicted. See generally State v. Outen, 296 Ga. 40 (764 SE2d 848) (2014).

      3. Right to be present at critical stage.

      Heath argues that her right under Art. 1, Sec. I, Para. XII of the Georgia

Constitution to be present at all critical stages of trial was violated when two potential

jurors were dismissed in a bench conference at which she was not present. We find

that Heath acquiesced to her absence.

      At some point, although it is not clear when because it is not included in the

trial transcript, there must have been discussion about excusing certain panel members

for cause. Then counsel and the court engaged in a bench conference, the bench

conference Heath points to as violating her rights, as follows:

      COURT: All right. We had talked about a number of people that we
      were – we talked about a number of people that we were talking about
      excusing.
      DEFENSE COUNSEL: Yes, sir.
      COURT: I wanted to — I didn’t want to do that in front of everybody
      else but we need to sit down and make sure we’re clear on who is
      excused and who is not excused.
      DEFENSE COUNSEL: Judge, it’s number three, . . . the kindergarten
      teacher and then number ten, . . . the fella with the left ear problem.
      COURT: Yeah. And we do not have the equipment. Are y’all both good
      on that?

                                           12
      ASSISTANT DISTRICT ATTORNEY: That’s fine.
      COURT: All right, so [number 10] is out. And [number three] is out.
      ASSISTANT DISTRICT ATTORNEY: Yes, sir.
      COURT: Is there anybody else that y’all are moving to —
      DEFENSE COUNSEL: I think those are the only ones for cause.
      ASSISTANT DISTRICT ATTORNEY: Yes, sir.
      COURT: Those are the only two?
      ASSISTANT DISTRICT ATTORNEY: Yes, sir.
      COURT: All right, thank you.

      After the jury was impaneled and had left the courtroom, the trial court judge

stated in open court that there were a number of matters that needed to be placed on

the record. The following colloquy occurred:

      DEFENSE COUNSEL: Judge, I think all we need to put on the record
      was that — we did it at the conference but we had agreed to strike for
      cause jurors number 3 and 10.
      COURT: Yes, sir.
      DEFENSE COUNSEL: Make sure that was heard well. And the also,
      Judge, I want to point out that I have talked to my client and she
      understands that she has the right to hear everything that goes on in the
      courtroom but that she’s willing to trust me with regard to these bench
      conferences that deal with administrative details and things of the like
      to be sort of the conduit for that information.

      The appellate record demonstrates that Heath acquiesced to her absence from

any bench conference at which the panel members were excused. First, the transcript

demonstrates that there had been a discussion about excusing jurors for cause, because

at the bench conference about which Health complains, the trial court judge stated that



                                          13
he and counsel “had talked about excusing jurors.” It is not clear whether Heath was

present for that discussion. Regardless, there is no indication that she expressed any

concern about or objection to the procedure used to excuse the jurors. Second, the

“jury strike list” in the appellate record includes a handwritten note that “[panel

member three] is excused by court for cause in side bar with judge & attorneys along

with [panel member 10], and in open court.” Third, Heath’s counsel explicitly put on

the record that “at the conference [they] had agreed to strike for cause jurors number

3 and 10.” Again, there is no indication that Heath expressed any concern about or

objection to the procedure used to excuse the jurors.

         Assuming for purposes of this appeal that Heath was absent from a bench trial

at which striking jurors was discussed and at which those jurors were actually struck,

she has not shown a violation of her constitutional rights. Counsel “made it clear that

[Heath] had not been present during a proceeding at which [two of the potential jurors

were struck for cause. Heath] did not express any concern about or objection to [her]

absence during that discussion, nor did [s]he ask for more details about the matter. .

. .” Goodrum v. State, 303 Ga. 414, 416 (III) (812 SE2d 220) (2018). Under these

circumstances, Heath acquiesced in her absence from such discussion. Id. at 416-417

(III).


                                           14
      Judgment affirmed in part and reversed in part. Rickman and Markle, JJ.,

concur fully and specially.




                                     15
 A18A2112. HEATH v. THE STATE.



      RICKMAN, Judge, concurring fully and specially.

      I concur with the majority opinion fully, with one reservation regarding the

validity of Count 1 of the indictment. On that issue, I believe we are constrained by

Jackson v. State, 301 Ga. 137, (800 SE2d 356) (2017), and Howard v. State, 252 Ga.

App. 487, (555 SE2d 884) (2001), to reverse, but I believe there is a need for further

clarification on whether an indictment that both cites a specific Code section

pertaining to a single crime and includes some factual allegations, but does not recite

all of the elements of the offense charged, would be a legally sufficient indictment.
      Here, Count 1 of the indictment charged Heath with homicide by vehicle in the

first degree by reckless driving. Count 1 cited the Code section for reckless driving,

OCGA § 40-6-390, which defines a single crime. It also included factual allegations

that “[Heath], while operating a motor vehicle with six passengers and while

distracted by events taking place in the vehicle, failed to stop for a stop sign and

entered an intersection at a high rate of speed resulting in a collision with another

vehicle.” However, as the majority points out, it failed to allege that Heath drove her

vehicle in reckless disregard for the safety of persons or property, an element of

reckless driving.

      In Howard, the defendant was also charged with vehicular homicide due to

reckless driving. Howard, 252 Ga. App. at 488 (2). As in this case, the indictment

failed to include that the defendant drove with reckless disregard for persons or

property. Id. This Court stated that “an indictment for reckless driving under OCGA

§ 40–6–390 (a) which fails to include the crucial language that the defendant drove

with reckless disregard for the safety of persons or property is substantively defective.”

(Citation and punctuation omitted.) Id. However, this Court held that because there

was an additional count of the indictment charging the defendant with reckless

driving and that count included all of the elements of the offense of reckless driving,


                                            2
the indictment was valid. Although the indictment cited OCGA § 40-6-390 and

included factual allegations, Howard was silent as to what effect, if any, the reference

to the reckless driving statute in combination with the factual allegations had on the

indictment.

      More recently, in Jackson v. State, the Supreme Court of Georgia established

a test to determine if an indictment would withstand a general demurrer. Under that

test, an indictment must either: “(1) recite the language of the statute that sets out all

the elements of the offense charged, or (2) allege the facts necessary to establish

violation of a criminal statute.” Jackson, 301 Ga. at 141 (1). The count of the

indictment at issue in Jackson charged the defendant with failure to register as a sex

offender, cited to the general sex offender statute, and stated that the defendant failed

to register his change of address as required under the statute. Id. at 137. The Supreme

Court held that the indictment was not sufficient to withstand a general demurrer

because the statute cited in the count was very long with many subsections, the

particular subsection the defendant violated was not identified, and the count did not

contain enough facts. Id at 142-143 (2). Jackson did not clarify, however, whether

the indictment would have been sufficient if, in addition to the factual allegations, it

had cited a specific subsection of the relevant statute.


                                            3
       Count 2 of the indictment in this case is more obviously flawed. It charged

Heath with homicide by vehicle in the first degree by driving under the influence.

Count 2 cited the general statute for driving under the influence, but not the specific

subsection, and it did not specify whether the defendant was charged with driving

under the influence to the extent she was a less safe driver or because her blood

alcohol level was .08 or more. Clearly, under Jackson, Count 2 would not survive a

general demurrer.

       The fate of Count 1 under Jackson, is not as obvious. Count 1 cited to the

reckless driving statute which, unlike the statute in Jackson, is a short, specific statute

that defines a single crime.1 And Count 1 also included the factual allegations that

Heath failed to stop at a stop sign and entered an intersection at a high rate of speed.

The combination of the citation to the specific Code section and the given facts clearly

put Heath on notice that she was being charged with driving her vehicle in reckless

disregard of persons and property. However, based on existing precedent, I feel

compelled to agree with the conclusion of the majority that Count 1 is invalid. It

would be helpful to have more guidance, when applying the Jackson test, as to



       1
        “Any person who drives any vehicle in reckless disregard for the safety of
persons or property commits the offense of reckless driving.” OCGA § 40-6-390 (a).

                                            4
whether an indictment count, much like Count 1 in this case, which includes a

specific statute and factual allegations, could withstand a general demurrer even in the

absence of including all of the essential elements of the crime.

      I am authorized to state that Judge Markle joins in this special concurrence.




                                           5
