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this history as irrelevant, and ruled that only matters ‘immediately contemporaneous with this alleged incident’ were admissible as evidence of provocation. This was error. ‘Evidence is relevant and, therefore, admissible if it tends to prove a material issue in the case. OCGA § 24-2-1.’ Brown v. State, 270 Ga. 601-602 (512 S.E.2d 260) (1999). In determining whether or not there was sufficient provocation for Talmadge’s use of the fighting words, the jury was entitled to consider all the facts and circumstances tending to prove provocation, including ‘the relationship of the parties [and] the state of feeling existing between them,’ not just facts and circumstances contemporaneous with the use of the fighting words. Wilson, 223 Ga. at 533; Fish v. State, 124 Ga. 416 (52 SE 737) (1905); Raines v. State, 73 Ga.App. 177, 179-180 (36 S.E.2d 64) (1945).” YYYY. PROXIMATE CAUSE See also subheading CAUSE OF DEATH, above Cordero v. State, 296 Ga. 703, 770 S.E.2d 577 (March 16, 2015). Felony murder and child cruelty convictions affirmed. Trial court properly merged into the felony murder conviction the child cruelty conviction for beatings of the victim in the three days before his death, but not separate count for series of beatings in the four months prior, separated by a two week “deliberate interval.” Defendant points out that “the medical examiner and child abuse expert both testified that the victim's death was not caused by any one blow but by the accumulation of beatings over the course of many months, which ultimately caused the victim to go into shock on January 18, 2008, and die from cardiac arrhythmia. … The issue thus presented is: when a defendant inflicts non-fatal injuries on a victim, followed by a deliberate interval, and then inflicts more non-fatal injuries, which in combination with the earlier non-fatal injuries cause the victim's death, is the earlier, non-fatal crime independent of the subsequent homicide, such that the defendant may be sentenced for both crimes?” Supreme Court answers in the affirmative: “we conclude that, under the circumstances of this case, the acts of cruelty that occurred between September and December 2007 constitute an ‘independent act’ separate and apart from the January 2008 acts of cruelty, on which the underlying felony for felony murder was based. First, there was a ‘deliberate interval’ between the acts of cruelty to the victim that occurred between September and December 2007 and those that occurred in January 2008. Also, the jury would have been authorized to infer that the victim would have lived if the cruelty had stopped in December 2007, as there was no evidence that the injuries suffered by the victim in 2007 would have caused his death. The crime of cruelty to children based on the acts of cruelty occurring in late 2007 was thus completed before the January 2008 crimes of felony murder and cruelty to children occurred. Moreover, the jury would have been authorized to find that the January 16 to January 18 acts of cruelty were, by themselves, the proximate cause of the victim's death. An injury is the proximate cause of death if it ‘“materially accelerated the death , although proximately occasioned by a pre-existing cause.”’ Castro v. State, 295 Ga. 105, 107 (757 S.E.2d 853) (2014) (citation omitted).” Citing other cases where assault hastened demise of one with a prior condition: Bryant v. State, 270 Ga. 266, 268–269 (507 S.E.2d 451) (1998); Durden v. State, 250 Ga. 325, 329(5) (297 S.E.2d 237) (1982). “Applying these principles here, we conclude that, when Appellant beat the victim in January 2008, he took the victim as he found him, weakened by Appellant's own beatings and susceptible of dying from further beatings. We thus readily conclude that the jury could infer that the acts of cruelty committed on and between January 16 to 18, 2008, were the proximate cause of the victim's death—they ‘“materially accelerated the death, although proximately occasioned by a pre-existing cause.”’” State v. Ogilvie, 292 Ga. 6, 734 S.E.2d 50 (November 5, 2012). Reversing 313 Ga.App. 305, 721 S.E.2d 549 (November 9, 2011), and reinstating convictions for vehicular homicide, second degree, and failure to yield to pedestrian. Trial court properly declined to charge jury on defense of accident. 1. Contrary to Court of Appeals, “‘strict liability’ traffic offenses are not offenses with no criminal intent element. They do not require the specific intent or wrongful purpose that is an element of other crimes, but they do require the defendant to have voluntarily committed the act that the statute prohibits, which typically involves driving at a particular time and place (e.g., through a red light, see OCGA § 40–6–20(a)) or in a particular way (e.g., too fast, see OCGA § 40–6–181).” 2. Defense of accident may apply in strict liability offenses “only where there is evidence, however slight, that the defendant did not voluntarily commit the prohibited act. Contrary to Ogilvie's assertion, this does not eliminate the accident defense in traffic offense cases. The defense must be based, however, on evidence that the prohibited act was committed involuntarily, for example, because of an unforseeable physical ailment or external force. Cf. Smith v. State, 250 Ga.App. 532, 536–537 (552 S.E.2d 499) (2007) (holding that a justification instruction was required on a failure to maintain lane charge based on evidence that the defendant accelerated and hit a utility pole to avoid an armed attack); Sapp v. State, 179 Ga.App. 614, 615 (347 S.E.2d 354) (1986) (holding that a charge on accident was required in a prosecution for obstructing a police officer based on the defendant's testimony that she obstructed the officer when she fell due to illness).” Thus, on the failure to yield to a pedestrian charge here, for example, “[a] charge on accident is appropriate for this crime only when there is evidence that the defendant did not voluntarily drive into the crosswalk.” 3. Defendant’s claim that child suddenly ran in front of her did not state a defense of accident. “If Ogilvie had been indicted for a crime that required her to have intentionally or maliciously hit the
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