OGILVIE v. STATE

Shirley Ogilvie appealed her convictions of vehicular homicide in the second degree (OCGA § 40-6-393(c)) and failing to stop for a pedestrian in a crosswalk (OCGA § 40-6-91(a)). Shirley argued the trial court erred by declining to give Ogilvie’s requested charge on accident.

The trial court failed to explain to the jury the defense of accident. OCGA § 16-2-2 provides: “[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.” The Georgia Supreme Court has held ” ‘Accident’ is an affirmative defense whereby it must be established a defendant acted without criminal intent, was not engaged in a criminal scheme, and was not criminally negligent, i.e., did not act in a manner showing an utter disregard for the safety of others who might reasonably be expected to be injured thereby.

A charge on accident is not warranted based on a factual defense showing that no crime was committed. For example, if a defendant asserts that he did not run a red light because the light was green at the time he passed through an intersection, a charge on accident is not warranted. The defendant in such a case is not asserting that he ran a red light as a result of misfortune or accident, but that he did not run a red light and therefore committed no crime.

In this case, however, Ogilvie admitted under oath that she failed to yield to a pedestrian in a crosswalk. She never claimed that the pedestrian was not in the crosswalk when she struck him or that her car was already in the crosswalk when she first saw him. The trial court therefore erred by refusing to give the requested charge on accident, and Ogilvie’s convictions were reversed.