Nelson v. State

317 Ga.App. 527

731 S.E.2d 770

NELSON

v.The STATE.

No. A12A0812.

Court of Appeals of Georgia.

Aug. 30, 2012.

Steven H. Sadow, Atlanta, for Appellant.

Barry Edward Morgan, Sol.-Gen., Marietta, Jimmy Lawrence Newkirk, Asst. Sol.-Gen., for Appellee.

MILLER, Judge.

Raquel Nelson was convicted of misdemeanor homicide by vehicle in the second degree ( OCGA § 40–6–393(c) ) after her four-year-old son, A.J., was tragically struck by an oncoming vehicle when he attempted to cross the street.¹ The trial court granted Nelson a new trial on its own motion pursuant to OCGA § 5–5–40(h). Nelson filed a post-conviction plea in bar on the ground of double jeopardy, contending that the evidence was insufficient to sustain her conviction at the former trial. The trial court denied Nelson's plea in bar, from which Nelson appeals.² For the reasons that follow, we must affirm.

On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict, and [Nelson] no longer enjoys a presumption of innocence. In evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt [under the standard set forth in] Jackson v. Virginia [, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ].

(Citation, punctuation, and footnotes omitted.) Mattox v. State, 305 Ga.App. 600, 699 S.E.2d 887 (2010). "The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court's oral and written rulings as a whole, the trial court's findings support its conclusion." (Citation punctuation, and footnote omitted.) Id. at 603(2), 699 S.E.2d 887.

So viewed, the trial evidence showed that on April 10, 2010, Nelson had spent the day running errands with her eight-year-old daughter, her two-year-old daughter, and her four-year-old son, A.J.

At approximately 9:15 that evening, Nelson and her three young children were returning home, traveling on a public transportation bus.

The apartment complex where Nelson resided was located across a four-lane highway from the bus stop on Austell Road in Cobb County. The four-lane highway contained a raised center median that divided two southbound lanes, two northbound lanes, and a turn lane. The area of the roadway was straight. There was no crosswalk in the portion of the roadway between the bus stop and the apartment complex, but there were sidewalks leading to crosswalks at intersections located approximately 50 yards away from the bus stop. Nelson testified that on a prior occasion, she had walked to one of the intersection crosswalks, but she did not like walking the extra distance.

When Nelson and her children exited the bus, it was dark outside. Nelson was carrying three grocery bags, which she wrapped around her wrists so that she could hold her children's hands while guiding them off of the bus. Nelson testified that she had never previously crossed Austell Road with her children at night, and thus, she was feeling apprehensive. After exiting the bus, A.J. immediately began to walk into the street, prompting Nelson to pull him back and scold him.

Two other women had exited the bus with Nelson and her children, and they all began to cross the four-lane highway outside of the crosswalk. Nelson stated that before crossing the first two lanes of the roadway, she looked both ways to ensure that no vehicles were approaching. Nelson and her children successfully crossed the first two lanes and reached the raised median that divided the highway.

Thereafter, Nelson and her children began attempting to cross the last two lanes of the highway toward the apartment complex. An eyewitness who had been driving on the roadway testified that she observed Nelson and her children step off of the median and cross into the street "a very short distance" ahead. The eyewitness stated that Nelson and her children were crossing in a line, and Nelson was leading in front of A.J. Suddenly, a van drove down the roadway toward Nelson and her children. The driver of the van quickly swerved in efforts to avoid hitting Nelson and her children. The van, however, struck A.J., who was then standing in the dotted lines between the lanes of the roadway.

The driver of the van testified that he was driving down the roadway, and "all of the sudden, just out of nowhere, people just ran out in front of [him]." The driver further stated that the pedestrians "jumped out in front of [him]" and Nelson ran four to five feet in front of his van. The driver tried to stop and swerved to avoid hitting the pedestrians, who were in the middle of the lane. The driver stated that he never saw A.J. and thought that he had only hit a basket and a post on the side of the road. The driver did not stop and left the scene of the accident.³

After A.J. was struck, Nelson was distraught and attempted to render aid to A.J. in the roadway. A.J. died as a result of blunt head trauma that he sustained during the accident.

Following the accident, officers assigned to the Cobb County police department's Selective Traffic Enforcement Program ("S.T.E.P.") conducted an investigation and performed an accident reconstruction. The investigating officers testified as to the conditions that existed on the roadway at the time of the accident, including the facts that there was no crosswalk at that particular location, the roadway was mostly dark, and the speed limit along the highway was 45 miles per hour. The investigating officer further testified that an individual's perception is greatly reduced at night, and that an individual's ability to recognize a threat and react accordingly are lengthened at night. It was undisputed that A.J. was in the lane of travel when he was hit by the vehicle. After the investigation was completed, the investigating officers concluded that A.J.'s death was caused by Nelson's act of leading A.J. into the roadway under unsafe conditions.

Nelson was charged, in pertinent part, with homicide by vehicle in the second degree under OCGA § 40–6–393(c) and a pedestrian crossing violation under OCGA § 40–6–92(a). Following the presentation of the evidence at trial, the jury found Nelson guilty of the charged offenses.

After sentencing Nelson to 12 months of probation and 40 hours of community service, the trial court offered Nelson the choice to either have a new trial or to proceed serving the sentence that had been imposed. The trial court subsequently entered an order granting a new trial. Thereafter, Nelson filed a double jeopardy plea in bar, contending that her retrial was barred since the evidence was insufficient to sustain her conviction. We disagree.

"[T]he Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient[.]" (Citations and punctuation omitted.) Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978). Significantly, however, the trial court's exercise of its discretion in granting a new trial based upon its finding that the verdict is against the weight of the evidence differs from a judgment of acquittal holding that the evidence is legally insufficient. See id. at 304, 248 S.E.2d 673. "[T]he grant of a new trial by the trial court on the discretionary ground that the verdict is against the weight of the evidence is not a finding by the trial court that the evidence is legally insufficient so as to bar a second trial under the Double Jeopardy Clause of the Federal Constitution." (Punctuation omitted.) Id. at 304–305, 248 S.E.2d 673; see also Ramsey v. State, 258 Ga. 151, 366 S.E.2d 286 (1988) ("The granting of a new trial in the absence of a finding of not guilty or a finding of insufficiency of evidence does not ordinarily expose a defendant to double jeopardy or multiple prosecutions.") (citations omitted). Here, the trial court did not specify its ground for granting a new trial. Notably, however, the trial court subsequently denied Nelson's plea in bar and rejected her claim that the evidence was insufficient. In our review, we likewise conclude that the evidence presented at trial was sufficient to support the jury's guilty verdict. Consequently, the trial court did not err in denying Nelson's double jeopardy plea in bar.

Under OCGA § 40–6–393(c), "[a]ny person who causes the death of another person, without an intention to do so, by violating [provisions of the title pertaining to motor vehicles and traffic, including OCGA § 40–6–92,] commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death[.]" (Punctuation omitted.) In turn, OCGA § 40–6–92(a) provides that "[e]very pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway unless he has already, and under safe conditions, entered the roadway." (Punctuation omitted.)

As an initial matter, we note that the instant appeal presents a case of first impression in Georgia where a pedestrian or the parent of a child pedestrian has been criminally charged and convicted of second degree vehicular homicide after being struck by a vehicle while crossing the roadway in an unlawful manner. Nevertheless, nothing in the statutory language of OCGA § 40–6–393(c) prohibits a vehicular homicide conviction against a pedestrian or a nondriver in this regard.⁴ Indeed, "this Court has held that an individual may be a party to a violation of the traffic laws without driving." (Citation and punctuation omitted.) Guzman v. State, 262 Ga.App. 564, 566(1)(a), 568(1)(b), 586 S.E.2d 59 (2003) (affirming a nondriver defendant's vehicular homicide conviction since the defendant's actions in supplying the minor with alcohol and then allowing the intoxicated minor to drive played a...