ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
a jury trial, Quincy Alexander Smith was convicted of
homicide by vehicle in the first degree for causing the death
of another person while driving with an alcohol concentration
of 0.08 grams or more (DUI-per se). He argues, among other
things, that the trial court committed reversible error in
refusing to charge the jury on the lesser included offense of
homicide by vehicle in the second degree and in admitting
extrinsic act evidence. For the following reasons, we reverse
Smith's conviction and remand this case for a new trial.
On appeal from a criminal conviction, we view the evidence in
the light most favorable to support the jury's verdict,
and the defendant no longer enjoys a presumption of
innocence. We do not weigh the evidence or judge the
credibility of the witnesses, but determine only whether the
evidence authorized the jury to find the defendant guilty of
the crimes beyond a reasonable doubt in accordance with the
standard set forth in Jackson v. Virginia, 443 U.S.
307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
(Citation omitted.) Laster v. State, 340 Ga.App. 96,
97 (796 S.E.2d 484) (2017).
construed, the evidence adduced at trial showed that shortly
after 7:00 a.m. on March 1, 2015, Smith was returning home
from dropping off his wife and children at a friend's
house. There was a light, misty rain and a low fog at that
time. Upon returning to his subdivision, Smith turned left
into the path of a motorcycle being driven by the victim,
resulting in the motorcycle colliding with the rear passenger
side of Smith's vehicle. The victim was killed in the
ensuing investigation revealed that Smith had been consuming
alcohol the previous night and had returned home sometime
between 2:00 and 3:00 a.m. He slept before being awakened to
transport his wife and children.
Smith exhibited no visual signs of impairment at the scene,
several law enforcement officers noticed an odor of alcohol
emanating from his person and he admitted to having consumed
alcohol sometime prior to the collision. A state trooper
conducted field sobriety tests at the scene and concluded
that Smith was driving under the influence of alcohol to the
extent that he was less safe to drive (DUI-less safe), and a
blood test conducted more than an hour after the incident
revealed Smith's alcohol content to be .136.
was arrested and charged with homicide by vehicle in the
first degree for causing the death of another person while
DUI-per se, homicide by vehicle in the first degree for
causing the death of another person while DUI-less safe, and
one count each of DUI-per se and DUI-less safe. See OCGA
§§ 40-6-391 (a) (2); 40-6-391 (a) (5); 40-3-393
the ensuing trial, the trial court admitted, over Smith's
objection, extrinsic act evidence related to a prior arrest.
Specifically, the State presented evidence that approximately
eight months prior to the instant collision, a police officer
had observed Smith driving around 6:00 a.m. with what
appeared to be a road sign embedded into the front of the
vehicle. Smith's windshield contained spiderweb-type
cracking and Smith had a visible wound on his head. Although
the officer smelled an odor of alcohol emanating from Smith
and he admitted to drinking alcohol two hours prior, Smith
refused to submit to a State-administered test, and field
sobriety tests were not conducted due to his head injury.
Smith was arrested and originally accused of reckless
driving. After he was indicted in the instant case, however,
the prosecuting attorney amended the accusation and charged
Smith with DUI-less safe.
written requests to charge, Smith requested that the jury be
permitted to consider the lesser included offense of second
degree vehicular homicide, and argued during the charge
conference that there was some evidence from which the jury
could conclude that the victim's death was caused by
Smith's failure to yield as opposed to his DUI. The State
objected, and the trial court refused to give the charge.
Smith preserved his objection to the trial court's
failure to give the charge.
jury found Smith guilty on all charges, and the trial court
merged the latter three charges into his conviction for
first-degree vehicular homicide while DUI-per se for
sentencing purposes. This appeal follows.
Smith contends that the trial court erred in refusing to
charge the jury on the lesser included offense of vehicular
homicide in the second degree pursuant to OCGA §
40-6-393 (c). We agree.
Georgia law, one commits the offense of vehicular homicide in
the first degree when he or she, without malice aforethought,
causes the death of another person through the violation of
certain specified traffic laws, including DUI. See OCGA
§ 40-6-383 (a). The offense of vehicular homicide in the
second degree is committed when one, without an intention to
do so, causes the death of another person by violating any
other Title 40 traffic law not specified in OCGA §
40-6-383 (a). See OCGA § 40-6-393 (c). "Because the
difference between first and second degree vehicular homicide
is the culpability of the predicate traffic offense, second
degree vehicular homicide is considered a lesser included