Lauderback v. State

Citation320 Ga.App. 649,740 S.E.2d 377
Decision Date21 March 2013
Docket NumberNo. A12A2348.,A12A2348.
CourtUnited States Court of Appeals (Georgia)


Ricky W. Morris Jr., McDonough, for Appellant.

John Andrew Pipkin III, Sol.-Gen., Brittany Lynn Adams Lavalle, Asst. Sol.-Gen., for Appellee.


Kenneth 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 considered 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 was driving a Toyota truck on Upchurch Road 1 in Henry County; Lauderback's three sons were riding as passengers in the truck. A small dog had gotten off its leash and was running into yards and along the side of and into the road, and a young boy and his neighbor, Vickie Moore, were trying to catch the dog. Motorists traveling in both directions began stopping and exiting their vehicles to help catch the dog, and by the time Lauderback came upon the scene, both lanes were blocked except for the gap between the two vehicles that were facing each other in opposite lanes. According to the State's witnesses, Lauderback was weaving through the vehicles without stopping or slowing down, causing him to almost sideswipe one of the parked vehicles. Moore was bending down to pick up the dog and did not see Lauderback's car coming her way, and one of the motorists who had stopped to help pulled her out of the way so she would not be hit by Lauderback's vehicle. Moore said she then implored Lauderback to stop but he drove around her and “gave [her] a ‘gesture.’ The commotion frightened the dog and it got away from the woman and ran up the hill, where it was struck and injured by Lauderback's vehicle.

Lauderback did not stop after he hit the dog, and one of the motorists at the scene got back into his vehicle and followed Lauderback. 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 charged. It was for the jury to decide which version of events to believe, and the fact that the jury chose to believe the State's witnesses does not render the evidence insufficient. Maloney v. State, 317 Ga.App. 460, 461, 731 S.E.2d 133 (2012); Banks v. State, 230 Ga.App. 881, 882(1), 497 S.E.2d 821 (1998). This enumeration thus presents no basis for reversal. Winston v. State, 270 Ga.App. 664, 665(1)(a), 607 S.E.2d 147 (2004).

2. Lauderback also contends that the trial court 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.2 At trial, he asserted that the failure to charge the particular manner in which the crime was committed rendered the accusation fatally deficient. The trial court initially took the demurrer under advisement and subsequently ruled that Lauderback's challenge to the accusation was in the nature of a special demurrer and thus was untimely.

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. 3 Regardless of how Lauderback frames his argument, the gist of his challenge is that the accusation did not provide him with sufficient information to form his defense, which is a challenge that must be brought by way of special demurrer. “If a defendant decides 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, 318 Ga.App. 88, 91(1), 732 S.E.2d 330 (2012). ‘The true test of the sufficiency of the 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’.... Adams v. State, 293 Ga.App. 377, 381(3), 667 S.E.2d 186 (2008).” State v. Hood, 307 Ga.App. 439, 440–441, 706 S.E.2d 566 (2010). On the other hand, “a special demurrer merely objects to the form of an indictment and seeks more information or greater specificity about the offense charged. [Cits.] (Emphasis in original.) Wilson, 318 Ga.App. at 92(1), 732 S.E.2d 330. And accusations that do not allege a specific date on which the crime was committed are not perfect in form and are subject to a timely special demurrer. Hood, 307 Ga.App. at 441, 706 S.E.2d 566. Further, pursuant to OCGA § 17–7–110, special demurrers must be filed within ten days after the date of arraignment, unless the time for filing is extended by the court. Wilson, 318 Ga.App. at 92(1), 732 S.E.2d 330. E.g., Stinson v. State, 279 Ga. 177, 180(2), 611 S.E.2d 52 (2005); State v. Delaby, 298 Ga.App. 723, 724, 681 S.E.2d 645 (2009). Thus, the trial court did not err by finding that Lauderback waived his right to challenge the accusation by failing to timely file a written special demurrer. Accordingly, this enumeration presents no basis for reversal.

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 or 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 S.E.2d 186 (1996); Helton v. State, 216 Ga.App. 748, 748–749, 455 S.E.2d 848 (1995) (defendant who was driving recklessly to evade police was not entitled to a charge on accident).Dryden v. State, 316 Ga.App. 70, 77(6), 728 S.E.2d 245 (2012). Davis v. State, 301 Ga.App. 484, 487(2), 687 S.E.2d 854 (2009). Moreover, “the defense 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, 313 Ga.App. 729, 736(9), 722 S.E.2d 333 (2012). As stated above, Lauderback testified at trial and denied that he drove recklessly or with any disregard for the safety of other persons or property. Thus, the trial court did not err by refusing to give his requested charge on accident. Davis, 301 Ga.App. at 487(2), 687 S.E.2d 854;Winston v. State, 270 Ga.App. at 670–671(5), 607 S.E.2d 147.

4. Lauderback 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, 270 Ga.App. at 666(1)(d), 607 S.E.2d 147. Thus, the trial court did not err by refusing to give this requested charge.

(b) The trial court also did not err by refusing to give Lauderback'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.” (Punctuation and citations omitted.) Sherman v. State, 302 Ga.App. 312, 314(3), 690 S.E.2d 915 (2010). Further,

[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 S.E.2d 12 (2002).

Singleton v. State, 297 Ga.App. 452, 454(2), 677 S.E.2d 348 (2009). Here, the transcript reveals that the trial court completely and accurately instructed the jury on presumption of innocence, burden of proof and reasonable doubt. Because the charge as a whole covered the principles of law embodied in the bare suspicion charge, the trial court did not err by refusing...

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  • Holley v. State
    • United States
    • Georgia Court of Appeals
    • March 9, 2022
    ...defendant is driving recklessly," Dryden v. State , 316 Ga. App. 70, 77 (6), 728 S.E.2d 245 (2012) ; accord Lauderback v. State , 320 Ga. App. 649, 652 (3), 740 S.E.2d 377 (2013) (involving conviction for reckless driving), because a reckless driving offense concerns "the defendant's condit......
  • Green v. State
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    ...or knowing waiver, nonetheless, there is no legal precedent requiring an in court waiver of the right of a jury trial.Seitman, supra, 320 Ga.App. at 649, 740 S.E.2d 368. Based upon the totality of the circumstances here, the record shows that the State fulfilled its burden of demonstrating ......
  • Holley v. State
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    • March 9, 2022
    ... ... than one occasion, this Court has concluded that "a ... charge on accident is not authorized when the ... 'accident' occurs as the defendant is driving ... recklessly," Dryden v. State , 316 Ga.App. 70, ... 77 (6) (728 S.E.2d 245) (2012); accord Lauderback v ... State , 320 Ga.App. 649, 652 (3) (740 S.E.2d 377) (2013) ... (involving conviction for reckless driving), because a ... reckless driving offense concerns "the defendant's ... condition while driving ... and not ... any traffic mishap that occurred while he was ... ...
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