Lauderback v. State

740 S.E.2d 377, 320 Ga. App. 649, 2013 Fulton County D. Rep. 995, 2013 WL 1150610, 2013 Ga. App. LEXIS 252
CourtCourt of Appeals of Georgia
DecidedMarch 21, 2013
DocketA12A2348
StatusPublished
Cited by3 cases

This text of 740 S.E.2d 377 (Lauderback v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lauderback v. State, 740 S.E.2d 377, 320 Ga. App. 649, 2013 Fulton County D. Rep. 995, 2013 WL 1150610, 2013 Ga. App. LEXIS 252 (Ga. Ct. App. 2013).

Opinion

MCMILLIAN, Judge.

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, [650]*650Lauderback was driving a Toyota truck on Upchurch Road1 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 Lauder-back. 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 [651]*651charged. 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 SE2d 133) (2012); Banks v. State, 230 Ga. App. 881, 882 (1) (497 SE2d 821) (1998). This enumeration thus presents no basis for reversal. Winston v. State, 270 Ga. App. 664, 665 (1) (a) (607 SE2d 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 SE2d 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 [652]*652and still be innocent? If he can, the indictment is fatally defective’---Adams v. State, 293 Ga. App. 377, 381 (3) (667 SE2d 186) (2008).” State v. Hood, 307 Ga. App. 439, 440-441 (706 SE2d 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). 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. 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). E.g., Stinson v. State, 279 Ga. 177, 180 (2) (611 SE2d 52) (2005); State v. Delaby, 298 Ga. App. 723, 724 (681 SE2d 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 SE2d 186) (1996); Helton v. State, 216 Ga. App. 748, 748-749 (455 SE2d 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 SE2d 245) (2012). Davis

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Bluebook (online)
740 S.E.2d 377, 320 Ga. App. 649, 2013 Fulton County D. Rep. 995, 2013 WL 1150610, 2013 Ga. App. LEXIS 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lauderback-v-state-gactapp-2013.