☢ test - Í
State , 295 Ga. 173, 758 S.E.2d 301 (May 5, 2014) (testimony that cause of death was homicide not improper). Shields v. State, 285 Ga. 372, 677 S.E.2d 100 (May 4, 2009). “[C]ontrary to Shield's contention, the pathologist's testimony about the autopsy findings and his opinion regarding the cause of the victim's death constituted direct, not circumstantial, evidence. Kirk v. State, 289 Ga.App. 125, 126 (656 S.E.2d 251) (2008); see also Jones v. State, 243 Ga. 584, 585(1) (255 S.E.2d 702) (1979).” Further, no other cause of death was supported by the evidence. Kirk v. State, 289 Ga.App. 125, 656 S.E.2d 251 (January 8, 2008). Conviction for second-degree vehicular homicide affirmed. 1. Evidence supported finding of causation although expert could not determine which of several impacts caused death. “In vehicular homicide cases involving intervening causes, the inability to specify which of the intervening causes proximately caused the injury or death is not determinative of the defendant’s guilt. See McGrath v. State, 277 Ga.App. 825, 829(1) (627 S.E.2d 866) (2006) (jury rejected intervening proximate causes, finding the defendant guilty of vehicular homicide); Ponder v. State, 274 Ga.App. 93, 95-96(1) (616 S.E.2d 857) (2005) (defendant guilty of vehicular homicide where decedent was struck and killed by oncoming car after attempting an evasive maneuver to avoid colliding with the defendant); Davis v. State, 245 Ga.App. 402, 403(1) (538 S.E.2d 67) (2001) (second degree vehicular homicide conviction affirmed where driver crashed into a tree and a fire started in the vehicle, where evidence was undisputed that victims did not die from the impact but from the fire). To support a conviction for vehicular homicide, the jury must conclude, as they did here, that ‘the defendant’s conduct was the ‘legal’ or ‘proximate’ cause, as well as the cause in fact, of the death. An injury or damage is proximately caused by an act or a failure to act whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission. (Citations and punctuation omitted.) Pitts v. State, 253 Ga.App. 373, 374(1) (559 S.E.2d 106) (2002). Accord McGrath, supra (‘as long as the defendant’s negligence proximately caused the injury of another, the crime [of vehicular homicide] has been committed, even if there are other factors which also are proximate causes of the injury’) (citation omitted). … The jury obviously concluded that irrespective of which impact actually caused the blunt force trauma to the decedent’s head, Kirk proximately caused the decedent’s death because his conduct played a substantial part in bringing about or causing the decedent’s death.” Accord, Hartzler v. State , 332 Ga.App. 674, 774 S.E.2d 738 (June 30, 2015) (“a defendant's conduct is a proximate cause of a victim's death if it was a ‘substantial factor’ in causing it and that it was either a direct result or a reasonably probable result of the defendant's conduct.”). 2. Charge on circumstantial evidence was not required; contrary to defendant’s argument, medical examiner’s opinion of cause of death was direct, not circumstantial evidence, as was eyewitness testimony “that the accident occurred because Kirk struck the deceased’s car.” Jones v. State, 281 Ga. 758, 642 S.E.2d 816 (March 26, 2007). Evidence supported jury’s conclusion that beating by defendant caused victim’s death. “Jones contends that the trial court should have granted his motion for a directed verdict of acquittal on the murder charges against him because the evidence supported a reasonable hypothesis that David died as a result of a heart condition and cocaine use as opposed to the beating that he suffered at the hands of Jones and Hester. However, questions as to the reasonableness of hypotheses are generally to be decided by the jury. Robbins v. State, 269 Ga. 500(1) (499 S.E.2d 323) (1998). Moreover, ample evidence from eyewitnesses and the medical examiner indicates that, even if Jones's beating of David ‘did not directly cause the victim’s death, the beating either materially contributed to the death or materially accelerated it.’ Lawson v. State, 274 Ga. 866, 867(1) (561 S.E.2d 72) (2002).” Phillips v. State, 280 Ga. 728, 632 S.E.2d 131 (July 6, 2006). Emergency room physician who admitted victim to hospital was competent to testify to cause of death even though he was not the doctor who pronounced victim dead. “[T]he testimony of the final attending physician, or that of the person who conducted the autopsy, is not a legal necessity for a conviction, See Curtis v. State, 224 Ga. 870(1) (165 S.E.2d 150) (1968) (even without an autopsy, testimony of a physician as to the life-threatening nature of visible wounds was sufficient evidence to establish the cause of death and to support a guilty verdict.).” Davis v. State, 245 Ga.App. 402, 538 S.E.2d 67 (July 28, 2000). Vehicular homicide convictions affirmed; no jury charge on intervening cause was “warranted under the facts of this case. The doctrine of intervening cause involves acts of a third party or victim which arguably cause the death of the victim. See, e.g., Howard v. McFarland, 237 Ga.App. 483, 488(3)(b), 515 S.E.2d 629 (1999) (physical precedent only); Harrison v. Jenkins, 235 Ga.App. 665, 666(1), 510 S.E.2d 345 (1998). In the present case, there was no independent intervening cause or actor. Contrary to Davis' contention, the presence of painting supplies in the van does not constitute an intervening cause. The presence of the painting supplies did not cause the deaths. While the supplies accelerated the spread of the fire, they did not cause the fire.
Made with FlippingBook Ebook Creator