☢ test - Í

Ga. 698, 701(3), 278 S.E.2d 398 (1981); Jenkins v. State, 216 Ga.App. 433, 434(4), 454 S.E.2d 543 (1995).” 2. CHALLENGE TO FORM See subheading DEMURRER, above 3. CODE SECTION, REFERENCE TO Ferguson v. State, 335 Ga.App. 862, 783 S.E.2d 380 (March 1, 2016). Sex trafficking and related convictions affirmed; indictment wasn’t defective for failing to expressly the recite the elements of the offense. “By virtue of the statutory definition of trafficking another person for sexual servitude, an indictment that alleges a violation of urchOCGA § 16–5– 46(c) necessarily incorporates an allegation that the trafficking conduct by the accused involved sexually explicit conduct by the victim.” State v. Wilson, 318 Ga.App. 88, 732 S.E.2d 330 (September 25, 2012). In prosecution for aggravated assault on peace officer and related offenses, trial court erred in granting oral demurrer made after jury impaneled. Indictment set out facts sufficient to charge defendant with aggravated assault, but not on a police officer. “[A] challenge to an indictment that is based upon an alleged variance between the offense named in the indictment and the facts alleged in the indictment goes only to the form of the indictment, so that such challenge must be brought by special demurrer. Jones v. State, [240 Ga.App. 484, 486(2) (523 S.E.2d 73) (1999)] (It is axiomatic that it is not the name given to a crime in the indictment, but the indictment's description of the facts that constituted the crime, that establishes the offense charged.); see Morris v. State, [310 Ga.App. 126, 131(3) (712 S.E.2d 130) (2011)] (‘It is immaterial what the offense is called in the indictment as long as the averments of the presentment are such as to describe an offense against the laws of the State.’) (citations and punctuation omitted); Hill v. State, 257 Ga.App. 82, 84(1) (570 S.E.2d 395) (2002) (“It is the description of the crime, rather than the description and number of the section under which it appears in the Code[,] which furnishes the criterion for determining whether the indictment is good.”) (citation and punctuation omitted). See, e.g., Doe v. State, [306 Ga.App. 348, 350(1) (702 S.E.2d 669) (2010)] (The indictment informed the defendant that he was accused of attempting ‘to influence the winning of Georgia Lottery prizes by tampering with lottery materials[,]’ and, thus, was sufficient to charge him under subsection ( b ) of OCGA § 50–27–27, even though the indictment referred to the offense of ‘falsely uttering’ a lottery ticket, which is a crime under subsection ( a ) of OCGA § 50–27–27 .).” As special demurrer must be made within 10 days of arraignment, defendant’s oral demurrer at trial was untimely. Accord, Chapman v. State , 318 Ga.App. 514, 733 S.E.2d 848 (November 2, 2012) (indictment properly described rape, though it cited code section for child molestation). Dixson v. State, 313 Ga.App. 379, 721 S.E.2d 555 (November 23, 2011). Physical precedent only. Theft by taking as a fiduciary convictions affirmed; indictment for fleeing and eluding wasn’t defective. Even if it failed to allege every essential element, it alleged the offense was committed “in violation of OCGA § 40-6-395.” Citing Shabazz (June 3, 2008, below). Blackwell expresses doubt about this rationale, noting grant of defendant’s habeas petition in Henderson v. Hames , 287 Ga. 534, 537–540(3) (697 S.E.2d 798) (2010). In Hames , defendant’s indictment was deemed inadequate for lack of essential element of offense, despite reference to code section. “Noting that ‘[a]n indictment is void to the extent that it fails to allege all the essential elements of the crime or crimes charged,’ id. at 538(3), the Supreme Court concluded that the indictment omitted an essential element of a violation of OCGA § 16–11–108(a) and that, for this reason, ‘the indictment was defective.’ Id. at 539(3). In light of Hames , the principle on which the majority relies today seems doubtful.” Blackwell concurs in result, however, contending that all essential elements were in fact alleged. Accord, Jackson v. State , 335 Ga.App. 597, 782 S.E.2d 499 (February 5, 2016). State v. Biddle, 303 Ga.App. 384, 693 S.E.2d 539 (March 10, 2010). Defendant’s convictions for first degree vehicular homicide reinstated; trial court erred in finding that indictment only charged second degree vehicular homicide. Indictment read charged that defendant “did … cause the death of [the victim], a human being, through a violation of Official Code of Georgia Annotated Section 40-6-390, Reckless Driving, by driving his vehicle in a reckless manner, to wit: driving on the wrong side of a roadway and hitting the vehicle wherein [the victim] was a passenger.” Trial court found that this description only supported second degree vehicular homicide because “it does not use the language of the definition of the offense of reckless driving in its definition of the offense, but rather it uses driving on the wrong side of the road.” Court of Appeals disagrees: “By alleging that Biddle violated OCGA § 40-6-390, Reckless Driving, the indictment incorporated the elements of that offense that Biddle drove his ‘vehicle in reckless disregard for the safety of persons or property’ and was sufficient to assert an indictment for vehicular homicide in the first degree. Duggan v. State, 225 Ga.App. 291, 297(8) (483 S.E.2d 373) (1997).” Ervin v. State, 298 Ga.App. 409, 680 S.E.2d 448 (June 2, 2009). Trial court properly found defendant guilty at bench trial for “failing to yield to approaching traffic after stopping at a stop sign, which is a violation of OCGA § 40-6-