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Home » Cases of Note » OTUWA V. STATE – A12A1382: The Limits of Charging Lesser Included Offenses For First-Degree Vehicular Homicide
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OTUWA V. STATE – A12A1382: The Limits of Charging Lesser Included Offenses For First-Degree Vehicular Homicide

The record shows that Otuwa was in a single-vehicle accident on a residential road on August 3, 2008. He lost control of his car, crashed through a stop sign and street sign, veered off of the road, and flipped multiple times. Otuwa’s sister and another passenger were thrown from the vehicle and died of their injuries. Otuwa and a separate passenger survived. Reportedly, Otuwa smelled strongly of alcohol and his eyes were red and glassy. A preliminary roadside breath test showed that Otuwa had been drinking and returned a numerical result of .175 BAC. A further investigation showed that he was traveling at approximately 93 mph at the time of the accident. He was arrested and charged with two counts each of first-degree vehicular homicide by less-safe DUI, by per-se DUI, and by reckless driving, and less-safe DUI, per-se DUI, and reckless driving for a total of nine counts.

At trial, there was a dispute over jury charges. Otuwa requested that the lesser included offense of second-degree vehicular homicide by speeding be charged as to the six counts of first-degree vehicular homicide. The trial court allowed the charge for the lesser included offense only in regards to the two counts of first-degree vehicular homicide by reckless driving. Alcohol, not speeding, predicates a DUI charge, while speeding could predicate a charge of reckless driving. Despite the inclusion of the lesser charges, the jury found Otuwa guilty of all six counts of first-degree vehicular homicide, as well as the two counts of DUI and one count of reckless driving. Otuwa appealed his conviction, contending that the trial court erred when it did not allow him to charge the jury with the lesser offense of second-degree vehicular homicide by speeding for all six counts of first-degree vehicular homicide. Citing Hill v. State, 285 Ga. App (2007), the Court found no error.

The circumstances of Hill are very similar to Otuwa: the defendant was charged with first-degree vehicular homicide by reckless driving and DUI, but the jury was given the option of returning a guilty verdict on second-degree vehicular homicide as a lesser included offense on the reckless driving count. In Hill, the Court found that “if a jury finds a defendant guilty of vehicular homicide and that either DUI or reckless driving […] was the cause of the vehicular homicide, then it follows that the defendant ‘must be guilty of the first degree, and not a second degree, vehicular homicide.'” Since Otuwa followed this same pattern as Hill, the Court found no reason for the error.