State v. Ogilvie

• Decision Date: 05 November 2012
• Docket Number: No. S12G0703.,S12G0703.
• Citation: 292 Ga. 6,734 S.E.2d 50
• Parties: The STATE v. OGILVIE.
• Court: Georgia Supreme Court

292 Ga. 6

734 S.E.2d 50

The STATE

v.OGILVIE.

No. S12G0703.

Supreme Court of Georgia.

Nov. 5, 2012.

Sherry Boston, Solicitor–General, Jennifer E. Stolarski, Wystan Getz, Asst. Solicitor–General, Office of the Solicitor General, for appellant.

Jackie Glenn Patterson, Patterson Firm, LLC, Atlanta, for appellee.

Carlton Todd Hayes, Prosecuting Attorney's Council of Georgia, J. David Miller, James David McDade, Dist. Attys., Office of the District Attorney, for other party.

NAHMIAS, Justice.

We granted certiorari in this case to consider whether the Court of Appeals properly stated and applied the law governing accident and proximate cause in a “strict liability” offense. See Ogilvie v. State, 313 Ga.App. 305, 721 S.E.2d 549 (2011). We conclude that it did not and reverse its judgment.

1. Appellee Shirley Ogilvie struck and killed a seven-year-old boy with her car as she drove through a crosswalk while the child was crossing the street. ¹ Ogilvie was convicted of second degree vehicular homicide, see OCGA § 40–6–393(c), based on her failure to stop for a pedestrian in a crosswalk, see OCGA § 40–6–91(a). The trial court had declined to give Ogilvie's requested jury charge on the defense of accident. On appeal, she contended that the accident charge was authorized by her testimony that she could not stop before hitting the child because he ran across the street in front of her car, giving her only a second or two to avoid hitting him.

The Court of Appeals began its discussion of Ogilvie's contention by stating that there is “no element of criminal intent for the strict liability offenses contained in OCGA Title 40, Chapter 6, Uniform Rules of the Road.” Ogilvie, 313 Ga.App. at 308, 721 S.E.2d 549. The court then said that the defense of accident is available in strict liability offenses because “[o]ne of the requirements for application of this defense is a lack of criminal intent, and a strict liability offense, by its very nature, involves a lack of criminal intent.” Id. at 309, 721 S.E.2d 549. The court rejected the

State's claim that Ogilvie's defense was “one of lack of proximate cause and not accident.” This argument overlooks that defendant can be entitled to both a proximate cause defense and an accident defense. See, e.g., Mitchell v. State, 255 Ga.App. 585, 591–592(6), 565 S.E.2d 889 (2002) (trial court's charges on accident and proximate cause proper and adjusted to evidence in case when boat passenger jumped in front of approaching boat on collision course with passenger's boat). An accident charge should be given “if there is evidence that the defendant could not have avoided the collision due to circumstances beyond his control.” Moore v. State, [258 Ga.App. 293, 294–295(1), 574 S.E.2d 372 (2002) ]. Since the facts submitted at Ogilvie's trial support the theory that she could not avoid hitting the child “due to circumstances beyond [her] control,” id., the trial court erred by refusing to give the accident charge.

Ogilvie, 313 Ga.App. at 310–311, 721 S.E.2d 549 (emphasis in original). The Court of Appeals held that the failure to give the accident charge was harmful and reversed Ogilvie's convictions. See id. at 311–313, 721 S.E.2d 549. We granted certiorari.

2. (a) The Court of Appeals premised its reasoning on the proposition that there is no criminal intent element for the “strict liability” traffic offenses set forth in Chapter 6 of Title 40 of the Georgia Code. That premise is incorrect.

Violations of Chapter 6's Uniform Rules of the Road are crimes. OCGA § 40–6–1 says, “It is unlawful and, unless otherwise declared in this chapter with respect to particular offenses, it is a misdemeanor for any person to do any act forbidden or fail to perform any act required in this chapter,” and OCGA § 16–1–3(9) defines a “misdemeanor” as “any crime other than a felony.” See also OCGA § 17–10–3(a)(1) (“Except as otherwise provided by law, every crime declared to be a misdemeanor shall be punished as follows: (1) By a fine not to exceed $1,000.00 or by confinement in the county or other jail, county correctional institution, or such other places as counties may provide for maintenance of county inmates, for a total term not to exceed 12 months, or both....”). Because the General Assembly has plainly said that these traffic offenses are misdemeanor crimes, they must contain the elements required to constitute a crime in Georgia as defined in OCGA § 16–2–1(a): “A ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.”

Criminal intent does not always equate to mental fault, guilty knowledge, or purposeful violation of the law. In Hoffer v. State, 192 Ga.App. 378, 384 S.E.2d 902 (1989), the Court of Appeals correctly identified the criminal intent required for the traffic offenses at issue. The defendant there contended that, to be convicted of running a red light, the State had to prove that he had the specific intent to run the red light. The court, however, rejected the view that the State must prove that the defendant “intentionally drove through a red light, or even that [he] knew that the light was red.” Id. at 379–380, 384 S.E.2d 902. Instead, the court explained, the State must prove only general criminal intent, which is “ ‘simply the intent to do the act which results in the violation of the law, and not the intent to commit the crime itself.’ ” Id. at 380, 384 S.E.2d 902 (citing Nelson v. State, 27 Ga.App. 50, 52–53, 107 S.E. 400 (1921)). The Hoffer court thus correctly concluded that, unless the particular provision indicates otherwise,² the traffic offensesdefined in Chapter 6's Rules of the Road are “strict liability” offenses, meaning that they can be committed without a culpable mental state. See id. Accord Cornwell v. State, 283 Ga. 247, 249–250, 657 S.E.2d 195 (2008) (holding that the trial court correctly charged the jury, with regard to a Chapter 6 offense, that “ ‘criminal intent must be proved by the state in every prosecution, and that criminal intent does not mean an intention to violate the law or to violate a penal statute, but simply means to intend to commit the act which is prohibited by statute’ ” (citation omitted)); Goethe v. State, 294 Ga.App. 232, 236, 668 S.E.2d 859 (2008) (same); Queen v. State, 189 Ga.App. 161, 163, 375 S.E.2d 287 (1988) (explaining that “certain ‘strict criminal liability’ motor vehicle safety statutes ... can be violated ... without a showing of mens rea or guilty knowledge on the part of the violator”). See also People v. Rostad, 669 P.2d 126, 129 (Colo.1983) (“[T]he minimal requirement for a ‘strict liability’ offense is proof that the proscribed conduct was performed voluntarily—i.e., that such act must be the product of conscious mental activity involving effort or determination.”).

Thus, “strict liability” traffic offenses are not offenses with no criminal intent element. They do not require the specific intent or wrongful purpose that is an element of other crimes, but they do require the defendant to have voluntarily committed the act that the statute prohibits, which typically involves driving at a particular time and place (e.g., through a red light, see OCGA § 40–6–20(a)) or in a particular way (e.g., too fast, see OCGA § 40–6–181).

(b) OCGA § 16–2–2 says that “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” This accident defense applies where the evidence negates the defendant's criminal intent, whatever that intent element is for the crime at issue. Accordingly, a jury charge on the defense of accident to a strict liability traffic offense is available only where there is evidence, however slight, that the defendant did not voluntarily commit the prohibited act. Contrary to Ogilvie's assertion, this does not eliminate the accident defense in traffic offense cases. The defense must be based, however, on evidence that the prohibited act was committed involuntarily, for example, because of an unforseeable physical ailment or external force. Cf. Smith v. State, 250 Ga.App. 532, 536–537, 552 S.E.2d 499 (2001) (holding that a justification instruction was required on a failure to maintain lane charge based on evidence that the defendant accelerated and hit a utility pole to avoid an armed attack); Sapp v. State, 179 Ga.App. 614, 615, 347 S.E.2d 354 (1986) (holding that a charge on accident was required in a prosecution for obstructing a police officer based on the defendant's testimony that she obstructed the officer when she fell due to illness).

(c) In this case, Ogilvie was charged with violating OCGA § 40–6–91(a), which directs that

[t]he driver of a vehicle shall stop and remain stopped to allow a pedestrian to cross the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching and is within one lane of the half of the roadway on which the vehicle is traveling or onto which it is turning.

A charge on accident is appropriate for this crime only when there is evidence that the defendant did not voluntarily drive into the crosswalk instead of stopping for a pedestrian who was located in the statutorily protected area. At trial, Ogilvie did not dispute that she voluntarily drove into the crosswalk and struck the child there, so a charge on accident was not warranted for the OCGA § 40–6–91(a) violation or for the OCGA § 40–6–393(c) violation, for which the crosswalk offense served as the predicate offense.³

The Court of Appeals concluded that Ogilvie's testimony that she could not avoid hitting the child because he ran across the street in front of her warranted an accident charge. See Ogilvie, 313 Ga.App. at 309–311, 721 S.E.2d 549. If Ogilvie had been indicted for a crime that required her to...