306 Ga. 338 FINAL COPY
S19A0209, S19X0210. THE STATE v. MONDOR; and vice versa.
WARREN, Justice.
In this criminal case, the State appeals from an order
dismissing an indictment against Dannie Albert Mondor, who cross-
appeals. The indictment charged Mondor with homicide by vehicle
in the first degree, in violation of OCGA § 40-6-393 (b), predicated
on a hit-and-run offense (Count 1), and hit and run in violation of
OCGA § 40-6-270 (b) (Count 2). Mondor filed demurrers to the
indictment, as well as a motion to present evidence that Bradley
Braland — who died as a result of the accident set forth in the
indictment — was not wearing his seatbelt.1
Evidence presented at a motions hearing showed that while
1 Mondor filed demurrers to the previous two indictments; they were
nolle prossed. He later filed a third amended demurrer, which is the operative demurrer. That demurrer reasserted and incorporated the prior two demurrers and the constitutional challenges alleged in them. The record does not contain the prior demurrers or Mondor’s motion to present seatbelt-use evidence, but argument on the motion and the constitutional challenges are in the motions transcript. Mondor was driving a large recreational vehicle and towing a trailer
on an interstate highway, his front right bumper allegedly made
contact with the left rear bumper of a second vehicle, causing it to
strike a third vehicle. Braland, a passenger in the third vehicle, was
ejected and later pronounced dead at the scene. After the collisions,
Mondor stopped briefly on the side of the highway at a nearby exit.
He then proceeded several more miles to another exit, where he
stopped in a parking lot, called the police, and waited to make a
report on the accident.
At the motions hearing, Mondor argued that the indictment
should be dismissed because it fails to state all the elements of hit
and run in both counts, and in particular fails to state the mens rea
required to commit hit and run; that OCGA § 40-8-76.1 (d) — a
statute that precludes evidence of failure to wear a seatbelt — is
unconstitutional as applied to him because it prevents him from
presenting a full and complete defense to the charges in the
indictment that he violated OCGA §§ 40-6-270 (b) and 40-6-393 (b)
when he caused an accident that “caused” the victim’s death; and
2 that the hit-and-run and vehicular-homicide statutes are
unconstitutionally vague as applied to him.
The trial court dismissed the indictment because it was not
“perfect in form and substance,” concluding that the hit-and-run
count (Count 2) did not allege the essential element of mens rea —
i.e., that Mondor had “knowledge of the death, damage or injury”
caused by an accident involving him. In the same order, the trial
court denied Mondor’s motion to present seatbelt-use evidence,
declining to “find an exception” to the well-established “bar against
seatbelt use evidence” under OCGA § 40-8-76.1. Finally, the trial
court also declined Mondor’s request — related to his claims of
unconstitutional vagueness — to “declare an exact definition of the
word ‘cause’ as used in OCGA § 40-6-393.”
The State appeals in Case Number S19A0209, and Mondor
cross-appeals in Case Number S19X0210.2 For the reasons that
2 See OCGA §§ 5-7-1 (a) (1) (authorizing a direct appeal by the State from
an order dismissing an indictment) and 5-7-2 (b) (2) (providing that a certificate of immediate review is not required from an order described in OCGA § 5-7-1 (a) (1)). We note that the State directly appealed the trial court’s
3 follow, we reverse the trial court’s dismissal of the indictment in
Case Number S19A0209, and we affirm the exclusion of seatbelt-use
evidence in Case Number S19X0210, albeit for reasons different
from those that the trial court gave.
Case No. S19A0209
1. The State contends that the trial court “erred by granting
Mondor’s special demurrer” to Count 2 and by dismissing the
order to the Court of Appeals, and Mondor also filed an application for interlocutory appeal, which he filed after obtaining a certificate of immediate review. The Court of Appeals granted the application based on Mondor’s right to a cross-appeal pursuant to OCGA § 5-7-1 (b) and directed him to file a notice of cross-appeal, which he did in a timely manner. A panel of the Court of Appeals voted 2-1 to reverse the trial court’s dismissal of the indictment, but transferred Mondor’s cross-appeal to this Court pursuant to our constitutional- question jurisdiction. State v. Mondor, 346 Ga. App. 612 (816 SE2d 790) (2018). The cross-appeal was docketed in this Court as Case Number S18A1611. This Court then entered an order in that case, explaining that “[b]ecause we have subject matter jurisdiction over Mondor’s cross-appeal, we have jurisdiction over the whole case.” Accordingly, we directed the Court of Appeals to recall the remittitur, vacate its judgment in the direct appeal, and transfer the direct appeal to this Court. We emphasize that the judgment entered in Mondor, 346 Ga. App. at 612, was properly vacated to the extent that it relates to the State’s direct appeal. That direct appeal was properly transferred and docketed in our Court as Case Number S19A0209. Case Number S18A1611 (the cross-appeal previously transferred from the Court of Appeals) was stricken from the docket, and Mondor’s cross-appeal was redocketed in this Court as Case Number S19X0210.
4 indictment. As an initial matter, both the State and Mondor appear
to agree that the trial court dismissed the indictment because Count
2 failed to withstand a special demurrer.3 But we disagree with the
parties’ characterization of the trial court’s action below. In sum,
the trial court action being challenged is best understood as
dismissing the indictment because the hit-and-run count (Count 2)
did not survive a general demurrer.
Magic words are not required to file a demurrer, and the
substance and function of a motion or pleading generally controls
our review. See Gulledge v. State, 276 Ga. 740, 741 (583 SE2d 862)
(2003) (“[T]here is no magic in nomenclature and . . . substance
controls our consideration of pleadings.”); State v. Henderson, 283
Ga. App. 111, 112 n.6 (640 SE2d 686) (2006) (evaluating and
reversing trial court’s dismissal of a criminal charge and noting that
even where a defendant should have filed a demurrer instead of a
3 Mondor goes so far as to contend that the trial court did not address his
general demurrer, and to admit that the indictment cited the relevant Code section and that it “mostly followed its language.” Indeed, Mondor states in his brief on appeal that he will not even address whether a general demurrer should have been granted. 5 motion to dismiss, it “is the substance and function of a motion and
not its nomenclature that controls” (citation and punctuation
omitted)). Here, Mondor argued — and the trial court ultimately
concluded — that Count 2 of the indictment “fail[ed] to allege every
essential element . . . since it makes no mention of any knowledge
by the Defendant of any death, damage[,] or injury.” This type of
“challenge to the sufficiency of an indictment because it fails to set
forth all of the essential elements of the charged crime is properly
considered a general demurrer.” Strickland v. State, 349 Ga. App.
673, 674 (824 SE2d 555) (2019); see also Kimbrough v. State, 300 Ga.
878, 880 (799 SE2d 229) (2017) (a general demurrer “challenges the
sufficiency of the substance of the indictment”) (citation and
punctuation omitted; emphasis in original).4 In this regard, we
4 The trial court characterized the indictment’s failure as one of “form
and substance,” with the reference to “form” sounding in special demurrer — which challenges the sufficiency of the form of the indictment. See City of Peachtree City v. Shaver, 276 Ga. 298, 301 (578 SE2d 409) (2003) (“A defendant is entitled to a charging instrument that is perfect in form as well as substance, and the proper method to challenge the form of such instrument is a special demurrer.” (citations omitted)); see also Kimbrough, 300 Ga. at 880-881 (“By filing a special demurrer, the accused claims not that the charge in an indictment is fatally defective and incapable of supporting a conviction (as
6 direct the parties to the helpful analogy to the Civil Practice Act
expressed in Kimbrough: “A motion to dismiss for failure to state a
claim under OCGA § 9-11-12 (b) (6) performs substantially the same
function as a general demurrer,” while “a motion for a more definite
statement under OCGA § 9-11-12 (e) is in some ways ‘the modern
replacement for a special demurrer.’” (Citation omitted.) 300 Ga. at
881 n.12. We therefore review the trial court’s order based on the
understanding that the indictment was dismissed based on a
general demurrer, and we conduct that review “de novo in order to
determine whether the allegations in the indictment are legally
sufficient.” State v. Cohen, 302 Ga. 616, 618 (807 SE2d 861) (2017)
(citation and punctuation omitted).
Our review of the trial court’s ruling does not turn on whether
the indictment could have been made clearer or more definite, but
most importantly whether it “contains the elements of the offense
would be asserted by general demurrer), but rather that the charge is imperfect as to form or that the accused is entitled to more information.” (citation and punctuation omitted)). But that characterization does not change that both Mondor’s argument and the trial court’s ruling were in fact focused on the substance of the indictment. 7 charged.” Smith v. State, 303 Ga. 643, 647 (814 SE2d 411) (2018);
see also Atkinson v. State, 301 Ga. 518, 526 (801 SE2d 833) (2017)
(“A general . . . demurrer to the indictment would not have been
successful, as the indictment properly set out all of the facts and
elements of the crimes necessary to show that Atkinson could be
found guilty of the crimes alleged . . . .”). To the extent that an
indictment “fails to allege all the essential elements of the crime or
crimes charged,” including the required mens rea, it violates due
process, is void, and cannot withstand a general demurrer. Jackson
v. State, 301 Ga. 137, 139-140 (800 SE2d 356) (2017) (holding that
indictment was fatally defective and did not withstand a general
demurrer where it alleged violation of a specified criminal code
section but did not “set out all the elements of the offense” or “allege
all the facts necessary to establish” a violation); Henderson v.
Hames, 287 Ga. 534, 538 (697 SE2d 798) (2010) (holding that the
omission of the statutory mens rea element rendered the indictment
void). On the other hand, if an indictment does “recite the language
of the statute that sets out all the elements of the offense charged”
8 or “allege the facts necessary to establish violation of a criminal
statute,” then the indictment is sufficient to withstand a general
demurrer because “the accused cannot admit the allegations of the
indictment and yet be not guilty of the crime charged.” Jackson, 301
Ga. at 141. Indeed, we have before explained that “[t]he true test of
the sufficiency of an indictment” to withstand a general demurrer is
“‘[i]f all the facts which the indictment charges can be admitted, and
still the accused be innocent, the indictment is bad; but if, taking the
facts alleged as premises, the guilt of the accused follows as a legal
conclusion, the indictment is good.’” Allen v. State, 300 Ga. 500, 502
(796 SE2d 708) (2017) (citation omitted).
Here, Count 2 of the indictment charged Mondor with hit and
run under OCGA § 40-6-270. The relevant subsections of that
statute provide:
(a) The driver of any vehicle involved in an accident resulting in injury to or the death of any person or in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or shall stop as close thereto as possible and forthwith return to the scene of the accident and shall: (1) Give his or her name and address and the
9 registration number of the vehicle he or she is driving; (2) Upon request and if it is available, exhibit his or her operator's license to the person struck or the driver or occupant of or person attending any vehicle collided with; (3) Render to any person injured in such accident reasonable assistance, including the transporting, or the making of arrangements for the transporting, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such transporting is requested by the injured person; and (4) Where a person injured in such accident is unconscious, appears deceased, or is otherwise unable to communicate, make every reasonable effort to ensure that emergency medical services and local law enforcement are contacted for the purpose of reporting the accident and making a request for assistance. The driver shall in every event remain at the scene of the accident until fulfilling the requirements of this subsection. Every such stop shall be made without obstructing traffic more than is necessary. (b) If such accident is the proximate cause of death or a serious injury, any person knowingly failing to stop and comply with the requirements of subsection (a) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years. (c) (1) If such accident is the proximate cause of an injury other than a serious injury or if such accident resulted in damage to a vehicle which is driven or attended by any person, any person knowingly failing to stop or comply with the requirements of this Code section shall be guilty of a misdemeanor and [shall be fined or imprisoned for up to 12 months, or both]. . . .
10 OCGA § 40-6-270 (a), (b), (c) (1) (emphasis supplied). In turn, Count
2 of the indictment alleged, in relevant part, that Mondor, as the
driver of a vehicle that
was involved in an accident . . . which was the proximate cause of the death of Bradley Braland, the victim, did knowingly fail to stop and comply with the requirements of O.C.G.A. § 40-6-270 (a), to wit: said accused, being the driver of a vehicle involved in an accident resulting in injury to and the death of Bradley Braland, a person, did fail to immediately stop said accused’s vehicle at the scene of the accident and did fail to stop said accused’s vehicle as close thereto as possible and forthwith return to the scene of the accident; . . . in violation of O.C.G.A. § 40-6-270 (b); contrary to the laws of [this] State.
(Emphasis supplied.) Because Mondor “cannot admit the
allegations” in Count 2 of the indictment and “be not guilty of the
crime charged,” Count 2 is not vulnerable to a general demurrer.
Jackson, 301 Ga. at 141; see also Allen, 300 Ga. at 502. Indeed, if
Mondor admitted that he “was involved in an accident . . . which was
the proximate cause of the death of Bradley Braland,” and that he
“did knowingly fail to stop and comply with the requirements of
OCGA § 40-6-270 (a)” when he “did fail to immediately stop [his]
11 vehicle at the scene of the accident and did fail to stop [his] vehicle
as close thereto as possible and forthwith return to the scene of the
accident” — the precise allegations contained in Count 2 — he would
be guilty of hit and run under OCGA § 40-6-270 (b).
Nevertheless, Mondor argued below, and the trial court
ultimately determined, that the indictment omitted an essential
element of the hit-and-run offense alleged in Count 2: knowledge
that “an accident had occurred resulting in death, damage, or injury
to another.” Dworkin v. State, 210 Ga. App. 461, 462 (436 SE2d 665)
(1993); see also Sevostiyanova v. State, 313 Ga. App. 729, 739 (722
SE2d 333) (2012). Pointing to Dworkin, which the trial court cited
in its order dismissing the indictment, Mondor contends on appeal
that “knowledge of the death, damage or injury is generally a
prerequisite to conviction, even though the statute does not
expressly require such knowledge by the motorist,” and that
“knowledge is, of course, an element of the offense.” Dworkin, 210
Ga. App. at 462. In essence, Mondor argues that the trial court
correctly dismissed the indictment because “an individual cannot be
12 punished for failing to return to the scene of an accident if he did not
know that he was involved in an accident.” To hold otherwise, he
contends, would transform hit and run into a strict-liability offense.
We disagree that the indictment failed to allege mens rea or
any other essential element of hit and run. First, both Mondor’s
argument and the trial court’s order ignore that Count 2 of the
indictment tracks OCGA § 40-6-270 (a) and (b) — including the
knowledge requirement contained in subsection (b) — by alleging
that Mondor “did knowingly fail to stop and comply with the
requirements of O.C.G.A. § 40-6-270 (a).” A person cannot
“knowingly” fail to stop and comply with certain statutory
requirements unless he knows of the circumstances from which the
duty to stop and comply arises in the first place. Knowledge of
noncompliance as expressed in subsection (b) therefore requires
knowledge of the condition that gives rise to the requirements
specified in subsection (a), which references “an accident resulting
in injury to or the death of any person or in damage to a vehicle.”
Thus, OCGA § 40-6-270 requires knowledge of an accident that
13 resulted in at least one of three enumerated consequences: injury,
death, or damage. And because Count 2 recites the statutory
language setting out all of the elements of subsections (a) and (b) of
OCGA § 40-6-270, including the mens rea element, that count is
sufficient to withstand a general demurrer. See Jackson, 301 Ga. at
141; State v. Wyatt, 295 Ga. 257, 260 (759 SE2d 500) (2014) (“[A]n
indictment couched in the language of the statute alleged to have
been violated is not subject to a general demurrer.” (citation and
punctuation omitted)). We therefore reverse the trial court’s
dismissal of the indictment against Mondor for hit and run and for
vehicular homicide.5
Case No. S19X0210
5 The trial court also erred by dismissing Count 1 of the indictment,
vehicular homicide predicated on hit and run. It is true that Count 1 cites OCGA § 40-6-270 (b), as opposed to reciting all of the elements of hit and run. In doing so, however, Count 1 tracks the language of the applicable provision of the vehicular homicide statute, OCGA § 40-6-393 (b), which itself cites OCGA § 40-6-270 (b) without setting out all of the elements of hit and run, and it describes the circumstances of the crime. If Mondor admitted the allegations in Count 1, he would be guilty of vehicular homicide. See Bautista v. State, 305 Ga. App. 210, 213 (699 SE2d 392) (2010); see also Duggan v. State, 225 Ga. App. 291, 297 (483 SE2d 373) (1997). Accordingly, Count 1 also survives a general demurrer. 14 2. In his cross-appeal, Mondor contends that OCGA § 40-8-76.1
(d), Georgia’s statutory exclusion of seatbelt-use evidence, is
unconstitutional as applied to him. Specifically, he argues that
Braland’s violation of state law by failing to wear a seatbelt is
“highly relevant” evidence of causation of Braland’s death, and that
OCGA § 40-8-76.1 (d) therefore violates his right under the United
States Constitution to present a complete defense. Mondor’s
argument presents a threshold issue of constitutional avoidance,
because if seatbelt-use evidence is not relevant to causation in this
case, this Court will have no occasion to reach the merits of his
constitutional claim. See Alderman v. State, 241 Ga. 496, 505 (246
SE2d 642) (1978) (citing United States v. Hale, 422 U.S. 171 (95 SCt
2133, 45 LE2d 99) (1975), as having framed an issue as an
evidentiary question, holding that the evidence was inadmissible,
and thereby avoiding the constitutional issue); cf. Bell v. State, 293
Ga. 683, 684 n.2 (748 SE2d 382) (2013) (trial court noted that it was
unnecessary to address the defendant’s constitutional challenge to
OCGA § 40-8-76.1 (d) because it excluded seatbelt-use evidence in
15 limine, but not on the exclusive basis of OCGA § 40-8-76.1 (d)). And
indeed, we need not reach the constitutional question here because,
as explained more below, the type of evidence Mondor seeks to admit
is not relevant to causation in his criminal case and is therefore
inadmissible.
For many of the same reasons, we also do not reach the
question of whether OCGA § 40-8-76.1 (d) applies in criminal cases
in the first place. To be sure, Mondor presumes that the statute
applies in criminal cases generally and in this case specifically,
given that he asked the trial court to “find an exception to the bar
against seatbelt use evidence.” And although the trial court did not
expressly rule that OCGA § 40-8-76.1 (d) applied (and thus
necessitated exclusion of the seatbelt evidence Mondor sought to
admit), it necessarily implied that when it declined to grant
Mondor’s requested “exception,” which is best understood as an
“exception” to OCGA § 40-8-76.1 (d)’s exclusion of seatbelt-use
evidence as “evidence of negligence or causation.” See OCGA § 40-
8-76.1 (d). For the reasons explained below, we affirm the trial
16 court’s order excluding evidence of seatbelt-use evidence in this case,
albeit on different grounds than the trial court’s reasoning. See
Drews v. State, 303 Ga. 441, 448 (810 SE2d 502) (2018) (relying on
the “right for any reason rule” in concluding that the trial court did
not abuse its discretion when it excluded evidence at trial).
We begin by evaluating whether seatbelt-use evidence is
relevant to causation under circumstances like these, and in so
doing we turn to the text of Georgia’s hit-and-run statute. That
statute makes clear that for an accident to qualify as a felony hit-
and-run offense under OCGA § 40-6-270 (b), the accident in which
the defendant was involved must be “the proximate cause” of a death
or serious injury. OCGA § 40-6-270 (b) (“If such accident is the
proximate cause of death or a serious injury, any person knowingly
failing to stop and comply with the requirements of subsection (a) of
this Code section shall be guilty of a felony[.]”). See also OCGA § 40-
6-270 (c) (1) (providing that any person who knowingly fails to stop
or comply with the requirements of the Code section is guilty of a
misdemeanor if the accident is “the proximate cause of an injury
17 other than a serious injury or if such accident resulted in damage to
a vehicle which is driven or attended by any person”). Similarly,
Georgia’s vehicular-homicide statute provides that a driver “who,
without malice aforethought, causes an accident which causes the
death of another person and leaves the scene of the accident in
violation of subsection (b) of Code Section 40-6-270 commits the
offense of homicide by vehicle in the first degree,” OCGA § 40-6-393
(b), and “‘the term “cause” has been regularly construed as requiring
proximate causation’” in that context, State v. Ogilvie, 292 Ga. 6, 11
(734 SE2d 50) (2012) (quoting State v. Jackson, 287 Ga. 646, 654
(697 SE2d 757) (2010)).
We next turn to the statutory exclusion of seatbelt-use
evidence, which also references causation. That statute provides
that “[t]he failure of an occupant of a motor vehicle to wear a seat
safety belt . . . shall not be considered evidence of negligence or
causation [and] shall not otherwise be considered by the finder of
fact on any question of liability of any person[.]” OCGA § 40-8-76.1
(d) (emphasis supplied). This Court has interpreted a prior version
18 of OCGA § 40-8-76.1 (d)6 and rejected certain constitutional
challenges to it in a civil case, see C.W. Matthews Contracting Co. v.
Gover, 263 Ga. 108, 108-110 (428 SE2d 796) (1993), but neither this
Court nor the Court of Appeals has relied on OCGA § 40-8-76.1 (d)
to exclude seatbelt-use evidence in a criminal case.
To be sure, the Court of Appeals has before cited a prior version
of OCGA § 40-8-76.1 (d) in a criminal vehicular-homicide case where
6 When OCGA § 40-8-76.1 was originally enacted in 1988, subsection (d)
provided: Failure to wear a seat safety belt in violation of this Code section shall not be considered evidence of negligence, shall not be considered by the court on any question of liability of any person, corporation, or insurer, shall not be any basis for cancellation of coverage or increase in insurance rates, and shall not diminish any recovery for damages arising out of the ownership, maintenance, occupancy, or operation of a passenger vehicle. Ga. L. 1988, p. 31, § 1. In 1999, subsection (d) was amended to add the words “or causation” and make other minor changes, so as to provide: The failure of an occupant of a motor vehicle to wear a seat safety belt in any seat of a motor vehicle which has a seat safety belt or belts shall not be considered evidence of negligence or causation, shall not otherwise be considered by the finder of fact on any question of liability of any person, corporation, or insurer, shall not be any basis for cancellation of coverage or increase in insurance rates, and shall not be evidence used to diminish any recovery for damages arising out of the ownership, maintenance, occupancy, or operation of a motor vehicle. Ga. L. 1999, p. 276, § 1 (emphasis supplied). Subsection (d) of OCGA § 40-8- 76.1 has remained unchanged since the 1999 amendment.
19 the exclusion of seatbelt-use evidence was affirmed.7 Whitener v.
State, 201 Ga. App. 309, 311 (410 SE2d 796) (1991). But in Whitener,
the Court of Appeals did not construe or otherwise rely on former
OCGA § 40-8-76.1 (d), and instead rejected the defendant’s
argument “that the victim’s failure to wear a seatbelt should be
considered in determining the ‘cause’ of death” by relying on general
principles of proximate causation. Whitener, 201 Ga. App. at 311.
To that end, the Court of Appeals held that so long as the defendant’s
negligence proximately caused the victim’s death, the failure to wear
a seatbelt was not relevant to causation even if it was also a
proximate cause of the death. Among other things, the court noted
that a victim’s “‘failure to wear a seatbelt may arguably be a
proximate cause of [his] death but was not an event that can sensibly
be described as an intervening cause of [his] injuries’”; “‘[s]o long as
the defendant’s negligence proximately caused the death of another,
the crime has been committed, even if there are other factors which
7 In addition, the language “or causation” had not yet been added to
OCGA § 40-8-76.1 (d), see Ga. L. 1999, p. 276, § 1. 20 also are proximate causes of the death’”; and “‘in the criminal context
it simply is not relevant that the victim was negligent, unless the
defendant’s conduct did not substantially contribute to the cause of
death.’” Whitener, 201 Ga. App. at 311 (citation omitted; emphasis
supplied and in original).
Although the Court of Appeals in Whitener relied on cases
involving seatbelt use from outside of Georgia to reach its holding,
the legal principles set forth in those cases are also well established
in Georgia law. Foremost among them is the principle that
“[c]ontributory negligence, as such, has no place in the law of crime.”
Cain v. State, 55 Ga. App. 376, 377 (190 SE 371) (1937) (if the
defendant’s criminal negligence “is found to be the cause of the
death, he is criminally responsible, whether or not the decedent’s
failure to use due care contributed to the injury”); see also id. at 382
(recognizing that the defendant would not be guilty if the negligent
act of the deceased was the sole proximate cause of his death, as in
the case of a self-inflicted wound or injury). “‘A criminal trial for
infraction of traffic laws does not involve such matters as the
21 relative diligence or negligence of parties to a collision, but concerns
only whether or not the defendant on trial is guilty of the violation
with which he is charged.’” Payne v. State, 138 Ga. App. 358, 359-
360 (226 SE2d 152) (1976) (citation omitted). And in a criminal case
where the defendant is charged with hit and run and vehicular
homicide, the key question is whether the defendant’s conduct
proximately caused the victim’s death. See Hoffer v. State, 192 Ga.
App. 378, 383 (384 SE2d 902) (1989) (in vehicular homicide case,
holding that the trial court did not abuse its discretion by excluding
seatbelt evidence as irrelevant because the question for the jury was
“not whether the death would or could have been made less likely by
wearing a seatbelt,” but whether the defendant “caused the death
by running the red light”) (citing Wilson v. State, 190 Ga. 824, 829
(10 SE2d 861) (1940)). Acknowledging all of these principles, the
Court of Appeals has followed and quoted Whitener in multiple cases
to hold that the use of a safety restraint is altogether irrelevant in
determining causation in a criminal case. See Baysinger v. State,
257 Ga. App. 273, 273-274 (570 SE2d 593) (2002) (improper
22 placement by the child-victim’s parents of the child’s car seat “did
not break the causal connection between the defendant’s wrongful
conduct and the child’s serious injuries,” and the evidence was
therefore sufficient to support the defendant’s conviction of serious
injury by vehicle); Fletcher v. State, 307 Ga. App. 131, 132 (704 SE2d
222) (2010) (separate and apart from OCGA § 40-8-76.1 (d),
affirming the exclusion of “evidence that the victim’s failure to wear
a seat belt was an intervening cause of his death”); Hartzler v. State,
332 Ga. App. 674, 681 (774 SE2d 738) (2015) (separate and apart
from OCGA § 40-8-76.1 (d), holding that a jury instruction that any
negligence on the part of the victim was irrelevant was not error in
a vehicular homicide case in which there was evidence that the
victim failed to wear a seatbelt). See also Hammill v. State, 327 Ga.
App. 580, 584 (758 SE2d 336) (2014) (quoting Baysinger); McGrath
v. State, 277 Ga. App. 825, 829 (627 SE2d 866) (2006) (quoting
Baysinger); Miller v. State, 236 Ga. App. 825, 829 (513 SE2d 27)
(1999) (quoting Cain).
Despite this body of case law from our Court of Appeals, the
23 issue presented here — namely, whether a victim’s alleged
negligence in not wearing a seatbelt is relevant to causation in a
criminal case — is one of first impression for this Court. To reach
the answer, we, like the Court of Appeals, look to Georgia law on
proximate causation. It is well established that proximate cause in
a criminal case “exists when the accused’s act or omission played a
substantial part in bringing about or actually causing the victim’s
injury or damage and the injury or damage was either a direct result
or a reasonably probable consequence of the act or omission.” Rivers
v. State, 296 Ga. 396, 404 (768 SE2d 486) (2015) (citation and
punctuation omitted). See also Jackson, 287 Ga. at 648-649. In
homicide cases, an unlawful injury inflicted by the defendant is
deemed the proximate cause of death whenever “the injury itself
constituted the sole proximate cause of the death,” “the injury
directly and materially contributed to the happening of a
subsequent accruing immediate cause of the death,” or “the injury
materially accelerated the death, although proximately occasioned
by a pre-existing cause.” Stribling v. State, 304 Ga. 250, 253 (818
24 SE2d 563) (2018) (quoting Wilson, 190 Ga. at 829 (punctuation
omitted)). See also Jackson, 287 Ga. at 649 (quoting Wilson, 190 Ga.
at 829). “Proximate cause thus imposes liability for the reasonably
foreseeable results of a criminal act if there is no independent and
unforeseen intervening cause.” Stribling, 304 Ga. at 253. See also
Jackson, 287 Ga. at 651, 654. This principle applies in vehicular
homicide cases, Ogilvie, 292 Ga. at 11, and is deeply embedded in
Georgia law. See, e.g., Menzies v. State, 304 Ga. 156, 161 (816 SE2d
638) (2018); Robinson v. State, 298 Ga. 455, 458 (782 SE2d 657)
(2016); Wilson v. State, 297 Ga. 86, 87 (772 SE2d 689) (2015).
Here, application of those well-established legal principles
leads to the conclusion that a victim’s failure to wear a seatbelt in a
case like this is not an intervening cause and would not prevent a
car accident from constituting the proximate cause of death of a
passenger in a car involved in the accident. Indeed, contrary to
Mondor’s characterizations on appeal, a car passenger’s failure to
wear a seatbelt is not, generally speaking, an intervening cause at
all. Instead, in most instances it is better described as a pre-existing
25 or concurrent proximate cause, see Whitener, 201 Ga. App. at 311
(failure to wear a seatbelt better described as a “condition precedent”
to a car accident or as “contribut[ing] to the death of a victim”),
especially given that failure to wear a seatbelt generally only
combines with other contributing causes of an accident and does not
independently cause death or injury, see Stribling, 304 Ga. at 253;
Whitener, 201 Ga. App. at 311. So long as the car accident was at
least a proximate cause of the victim’s death — which means that it
may be an additional proximate cause — the defendant may still be
held criminally responsible. See Stribling, 304 Ga. at 253; Whitener,
201 Ga. App. at 311; Cain, 55 Ga. App. at 377. We therefore hold
that evidence of a victim’s failure to wear a seatbelt generally is not
relevant evidence of causation in criminal cases.8 Put differently,
8 This conclusion is consistent with the weight of authority in other jurisdictions. At least as of 2004, one appellate court noted that “the jurisdictions that have considered this issue . . . have uniformly concluded that the victim’s failure to wear a seatbelt does not amount to an intervening cause.” People v. McAfee, 104 P3d 226, 230 (Colo. App. 2004) (collecting cases from 13 other states including Georgia). And “a victim’s failure to wear a seatbelt is not sufficient to supersede a criminal defendant’s conduct in causing the victim’s injuries or death.” Allen v. State, 43 P3d 551, 566 (Wyo. 2002) (collecting cases). See also, e.g., State v. Stewart, 759 A2d 142, 148 (Conn. App.
26 but again in the context of this case: if the jury in a criminal trial
were to determine that Mondor caused an accident that was a
substantial contributing cause of Braland’s death, then the
causation element of hit and run and vehicular homicide, as set forth
in OCGA §§ 40-6-270 (b) and 40-6-393 (b), has been met irrespective
of whether Braland’s failure to wear a seatbelt was also a
contributing factor or even another proximate cause of his death.9
See Stribling, 304 Ga. at 253; Whitener, 201 Ga. App. at 311; Cain,
55 Ga. App. at 377. Evidence of Braland’s failure to wear a seat belt
is thus irrelevant to causation because it does not tend to make it
2000) (collecting cases); State v. Buckley, 78 A3d 958, 968-970 (N.J. 2013). The rationale of those cases is that contributory negligence is not a defense in a criminal prosecution; that the victim’s failure to wear a seatbelt cannot amount to an intervening or superseding cause because it is reasonably foreseeable that some potential victims of vehicular collisions may not be wearing a seatbelt; and that for a cause to relieve a defendant of criminal responsibility, it must do more than supply a concurring or contributing cause of death or combine with the defendant’s act to cause the victim’s death. McAfee, 104 P3d at 230; Allen, 43 P3d at 566; Stewart, 759 A2d at 148-149.
9 To be sure, such seatbelt evidence may well be relevant in a civil case
to the issue of contributory negligence, see Whitener, 201 Ga. App. at 311; Cain, 55 Ga. App. at 382, assumption of risk, or apportionment of damages. But for the reasons explained above, the same is not true of the issue of causation in a criminal case.
27 either more or less probable that an accident caused by Mondor
proximately caused Braland’s death in violation of OCGA §§ 40-6-
270 (b) and 40-6-393 (b), and because it is irrelevant, it is
inadmissible. See OCGA § 24-4-401 (“the term ‘relevant evidence’
means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence”);
OCGA § 24-4-402 (“Evidence which is not relevant shall not be
admissible.”). We accordingly affirm the trial court’s exclusion of the
seatbelt-use evidence in this case based on principles of proximate
cause and decline to address whether OCGA § 40-8-76.1 (d) applies
in this, or in any, criminal case. Finally, because we affirm the trial
court’s evidentiary finding, we need not reach Mondor’s argument
that OCGA § 40-8-76.1 (d) is unconstitutional as applied to him.
3. Mondor also contends that “OCGA §§ 40-6-270 and 40-6-393
(b) are unconstitutionally void for vagueness because the language
of OCGA § 40-6-270 [(a)] fails to define key terms as part of its
requirement that a driver ‘remain at the scene of the accident until
28 fulfilling the requirements of this subsection’” and “because they
present a confusing snarl of causation that no ordinary citizen or law
enforcement officer could ever hope to untangle and understand.”
But neither the trial court’s written order nor any oral ruling
addressed or resolved the former claim, and we do not reach
constitutional questions that the trial court has not considered and
distinctly ruled on. State v. Chulpayev, 296 Ga. 764, 784 (770 SE2d
808) (2015) (“This Court will not rule on a constitutional question
unless it clearly appears in the record that the trial court distinctly
ruled on the point.” (citation and punctuation omitted)). See also
Nathans v. Diamond, 282 Ga. 804, 808 (654 SE2d 121) (2007)
(“Because the trial court’s discussion at the hearing and its written
order focus on [other issues], and because neither the trial court’s
discussion nor its written order mention the other constitutional
issues, it does not appear that those other issues were distinctly
ruled on by the trial court.”).
The trial court also did not rule on the vagueness challenge
that is directed to the statutory causation requirements. Instead,
29 the trial court’s written order merely acknowledged Mondor’s
request for an exact definition of the word “cause” in OCGA § 40-6-
393 and then expressly “decline[d] to set a definition of the word
‘cause’ as used in OCGA § 40-6-393 prior to trial.” Mondor points to
certain statements the trial court made at the motions hearing for
the proposition that the court did rule on this constitutional issue,
see Jenkins v. State, 284 Ga. 642, 643-644 (670 SE2d 425) (2008) (a
distinct ruling on a constitutional question may be oral and not
reduced to writing), but those statements merely discuss different
potential meanings of the word “cause” and conclude with the
statement “cause means cause.” Moreover, even if this did amount
to an oral ruling on the meaning of “cause,” the written order
declining to make such a ruling would control. See Mondy v.
Magnolia Advanced Materials, 303 Ga. 764, 772 (815 SE2d 70)
(2018) (“[A]ny discrepancy between the oral pronouncement and the
written ruling will be resolved in favor of the written judgment.”).
Because the trial court did not distinctly rule on either of Mondor’s
vagueness challenges, he has presented nothing for this Court to
30 review. Chulpayev, 296 Ga. at 784; Bell, 293 Ga. at 684.
Judgment affirmed in Case No. S19X0210. Judgment reversed in Case No. S19A0209. All the Justices concur.
Decided June 28, 2019. OCGA § 40-8-76.1 (d); constitutional question. Cobb Superior Court. Before Judge Howe, Senior Judge. D. Victor Reynolds, District Attorney, Amelia G. Pray, Patricia G. Hull, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellant. Scott P. Semrau, for appellee.