NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court

Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: April 30, 2024

S24A0036. SCHMITT v. THE STATE.

PETERSON, Presiding Justice.

Bryan Keith Schmitt challenges his malice murder conviction

for the death of Hamid Jahangard, who died after being hit by

Schmitt’s car. 1 On appeal, Schmitt argues that the trial court

committed reversible error by denying his request to instruct the

jury on the defense of accident as to all counts. We conclude that the

trial court erred because at least slight evidence supported that

1The collision in question occurred on July 30, 2019. A Fulton County

grand jury indicted Schmitt on August 23, 2019, and reindicted him on October
8, 2021, charging him with malice murder (Count 1), two counts of felony
murder (Counts 2-3), and two counts of aggravated assault (Counts 4-5). At
trial in September 2022, the jury found Schmitt guilty of all five counts. The
trial court sentenced Schmitt to serve life in prison with the possibility of
parole for malice murder and merged the aggravated assault counts with the
malice murder count, and the felony murder counts were vacated by operation
of law. Schmitt timely moved for a new trial. On May 16, 2023, the trial court
entered an order denying that motion. Schmitt filed a timely notice of appeal,
and the case was docketed to the December 2023 term of this Court and orally
argued on January 9, 2024.
charge. Because the State has not carried its burden to show that it

is highly probable that this error did not contribute to the verdict,

we reverse Schmitt’s conviction. And because the trial court also

erred in declining the accident instruction as to the related counts

of felony murder and aggravated assault, the verdicts on those

counts cannot stand. But the evidence was legally sufficient to

sustain Schmitt’s conviction, and so the State may retry him.2

The evidence at trial, including video recordings played for the

jury, showed the following. 3 On July 30, 2019, Schmitt was driving

his regular commute home from work through a residential area

when he saw Jahangard standing by the road. Jahangard made a

2 Schmitt also asserts that the trial court abused its discretion by
denying his motion to exclude State expert testimony that the evidence was
inconsistent with an accidental motor vehicle collision, erred by denying his
request to charge either of the lesser offenses of “unlawful act” and “unlawful
manner” involuntary manslaughter, and erred by overruling his motion under
Napue v. Illinois, 360 U.S. 264 (79 SCt 1173) (1959). Because we reverse and
these alleged errors are unlikely to occur again if the State retries him, we do
not address them. See Heard v. State, 309 Ga. 76, 83 (2) n.10 (884 SE2d 791)
(2020).
3 Because this case calls us to consider whether the trial court’s error was

harmless, we recount the evidence reasonably and in detail and weigh the
evidence as we would expect reasonable jurors to have done, as opposed to
viewing it solely in the light most favorable to the jury’s verdicts. See Moore v.
State, 315 Ga. 263, 264 n.2 (1) (882 SE2d 227) (2022).
2
bouncing or throwing motion with his arm. Schmitt heard a “very

loud noise” and felt something slam into the front of his car, “hit [his]

brakes,” continued driving, turned around, and returned to where

he saw Jahangard standing near trashcans in a driveway. Schmitt

stopped his car in the right lane, with a lane separating him from

Jahangard on the left, and rolled his window down. They argued

across traffic as cars passed Schmitt’s stopped car.

The nature of the argument is unclear. At trial, Schmitt

testified that he was leery about pulling into the driveway

immediately, as he “didn’t know who this was or what the situation

might have been.” He testified that he asked whether Jahangard

“thr[e]w a golf ball or what happened[,]” and Jahangard yelled in

response — in a dismissive and loud voice — for him to “get the f**k

out of here.” In contrast, Jahangard’s brother, Manoucher

Jahangard, testified that he and Jahangard were talking on the

phone 4 when someone talking in a “very loud and fast and angry”

4 Manoucher testified that his phone showed that he or Jahangard

initiated the call at 5:37 p.m. The State played for the jury a time-stamped
video of the collision that appears to show Jahangard on the phone at this time.
3
manner 5 interrupted their conversation. Manoucher heard

Jahangard sound “very surprised” and repeat three times, “I didn’t

throw anything to you, sir[,]” but the yelling continued. After

Jahangard repeated for the third time, “I didn’t throw anything to

you, sir[,]” Manoucher heard “a bunch of noise” and Jahangard say

“[g]et away from my face,” but then the phone disconnected. 6

During this argument, Schmitt decided to turn left into the

driveway and accelerated his car to between fifteen and sixteen

miles per hour. During that turn, Schmitt’s brake light came on at

least once, 7 and he began to veer his car away from Jahangard to the

right. Schmitt’s car struck Jahangard.8

5 On cross-examination, Schmitt’s counsel attempted to elicit

Manoucher’s agreement that the words “angry” and “aggressive” did not
appear in the transcript of his initial interview, and he ultimately responded,
“[m]aybe not.”
6 Manoucher testified that, at the time, Jahangard was waiting in the

driveway to direct painters to his rental property. Manoucher was “very

worried because of the conversation,” so he left immediately to check on
Jahangard.
7 Despite using the same video surveillance footage, the State’s expert

and Schmitt’s expert disputed the exact moment that Schmitt hit his brakes.
This video surveillance footage was played several times for the jury. Schmitt
also testified that he hit the brakes before colliding with Jahangard.
8 Hours later, after Jahangard’s family realized that Jahangard’s cell

4
 Jahangard immediately fell to the driveway, hit his head, and

began bleeding. Schmitt put his car in park and, without turning it

off, exited to render aid. Schmitt kneeled next to Jahangard and

stabilized his head while awaiting paramedics. Jahangard died days

later, and the autopsy revealed the cause of death as “blunt force

injuries of the head due to a motor vehicle collision, car versus

pedestrian.”

At trial, Schmitt testified in his own defense, denied using the

car as a weapon, and denied intentionally striking Jahangard.

Schmitt testified that he turned into the driveway “to try to sort out

what happened and to see if there was any damage to [his] car.” He

knew that he was too far up the road to turn left, and he thought he

could make a U-turn to turn right into the driveway without

impacting Jahangard, but he misjudged the turning radius of his

car.9 As he turned, Schmitt checked oncoming traffic, his rearview

phone was missing, Jahangard’s phone was tracked to Schmitt’s home address.
An officer found the phone, after having someone call it, stuck under the
windshield wiper of Schmitt’s car with a “completely shattered” front screen.
9 During cross-examination, the State elicited that at the time of the

5
mirror, and his side mirror, losing his focus on Jahangard. When he

realized the trashcans were directly in front of him, he instinctively

cut his wheel to the right and hit the brakes to miss them. Schmitt

testified that, upon hitting Jahangard, his military medical training

took over and he immediately began to render aid.10 Throughout his

testimony, he referred to the collision as an accident, and he insisted

that he did not intend to harm, hurt, scare, intimidate, or kill

Jahangard. He testified that he “was trying to avoid an accident”

and “was trying to de-escalate the situation.”

Both parties’ experts acknowledged that the steering wheel

was turned to the right before the collision, which kept the center of

the car from striking Jahangard, 11 Schmitt’s expert specifically

testified that the front left corner of Schmitt’s car struck Jahangard,

and the State’s expert conceded that only a few inches — “the very

collision Schmitt had been driving for about thirty years and had driven the
car that hit Jahangard for six years.
10 Schmitt testified that medical training was a “critical part of military

training” and was included as “part of the regular training” that he received
during his years serving in the military.
11 The State’s expert also testified that if the wheel had been turned more

to the right, Schmitt may have altogether avoided contact with Jahangard.
6
left edge” — of the car struck Jahangard. The experts also opined

that once Schmitt began his turn, a collision was inevitable. The

State’s expert opined that a black stain on Jahangard’s pants, which

were in evidence, was caused by a tire transfer, meaning that the

car’s front tire rolled over Jahangard’s left foot and ankle, and that

the car’s rear tire rolled over his knee. Schmitt’s expert opined that

the car did not run over Jahangard’s leg, as the GBI investigative

report did not reveal automotive paint, plastic, or grease on

Jahangard’s clothes and based on the expert’s review of a video of

the collision.

Several witnesses also testified at trial. Donald Utroska, Jr.,

testified that he was driving when “all of a sudden” he saw “garbage

cans and a car” move “swiftly” into the driveway. The car moved into

the driveway “awfully fast” and sent “very tall garbage cans in the

air a good three to four feet.” Utroska pulled over when he saw

Jahangard on the driveway with pooling blood, and Schmitt asked

him to call 911. He also testified that Schmitt explained that

Jahangard threw a golf ball at his car, Schmitt and Jahangard

7
argued, and when Schmitt pulled over to discuss it, Jahangard

jumped in front of his car. After paramedics arrived, Utroska offered

his contact information to Schmitt and found it “a little strange” that

Schmitt declined. Utroska described Schmitt’s demeanor as “very

emotionless, very plain[,]” and “nonchalant.”

Jessica Woodsen testified that she lived across the street from

where the collision occurred and her security camera recorded the

collision. Though she did not see the collision, she saw out of her

window two men standing and one man lying on the driveway across

the street. She described the man in the driveway as “laid out,”

unmoving, with his eyes open, with blood coming from his head, and

with his left leg hyperextended at the knee. When she arrived, the

car was still running and Schmitt was attempting to render aid to

Jahangard. She reprimanded Schmitt for attempting to move

Jahangard’s leg, which was under the back bumper and behind the

driver’s side back wheel. Woodsen testified that, when asked what

happened, Schmitt told her that Jahangard was walking, yelled

something, and threw something at his car. When Schmitt turned in

8
the driveway to see what happened, Jahangard pushed a trashcan

onto his car, and the trashcan bounced off of Schmitt’s car and

knocked Jahangard over. Woodsen described Schmitt’s demeanor as

“a little defensive” and as not giving the impression that he was

concerned about Jahangard.

Mokraine Lhocine testified that he was driving a company van

that contained a dashcam that recorded the collision. Lhocine saw a

stopped car in the middle of the road with cars passing it, then the

car made a “quick” turn and hit trashcans. As Lhocine continued

down the road, he saw that the door of the car was open, the driver

was holding somebody on the ground, and “there was a lot of blood

around him.”

Captain Jeremiah Green of the Sandy Springs Fire

Department testified that, when he arrived, Schmitt was kneeling

beside Jahangard and focused on holding Jahangard’s neck in a way

that protected the spine from further injury. Schmitt told Captain

Green that he did not know what happened or remember if

Jahangard was hit. Schmitt “mentioned something about a golf ball,

9
and he mentioned that the patient was yelling at him.”

James Durden, a paramedic, testified that when he arrived

Jahangard was unconscious but breathing spontaneously, lying on

his back with a significant amount of blood coming from the back of

his head and ears, with possible hyperextension to his left leg.

Schmitt did not remember whether Jahangard “went up and over or

underneath” the car, and Durden was “a little struck that there

wasn’t more emotion or concern[.]”

Police arrived around 40 minutes after the collision, and it had

started raining. 12 By that point, firefighters had moved the trash

cans, Schmitt had been permitted to move his vehicle, the rain

washed “[n]inety-nine percent of the blood away[,]” and a moving

van had driven through the driveway. Police officers nevertheless

photographed the scene, a golf ball found in a neighbor’s yard, and

Schmitt’s car. Police permitted Schmitt to drive the car home. The

12Schmitt’s counsel elicited law enforcement testimony that, despite this

delay, Schmitt remained voluntarily on the scene for an additional 30 to 40
minutes after police arrived while he was interviewed by police twice and wrote
a statement, before being dismissed by police.
10
lead detective testified that when police ultimately seized Schmitt’s

vehicle pursuant to a warrant several days later, there was no fiber,

hair, clothes, or anything of evidentiary value found.

Two video recordings of the collision were played for the jury:

Woodsen’s security video and the company van’s dashcam video.

The State also played body camera footage from the police officer

who responded to the scene. As captured in that recording, Schmitt

described that Jahangard pushed a trash can in front of his car as

he began to make a U-turn, Schmitt swerved to miss it, and the

trash can hit the corner of his car and bumped Jahangard, who lost

his footing and fell. The State also presented Schmitt’s written

statement, which consisted of a similar narrative.

1. Schmitt argues that the trial court erred in denying his

request to instruct the jury on accident as a defense to malice

murder and that this error was not harmless. We agree.

Schmitt timely requested a jury instruction on the defense of

accident and contended that the evidence supported that charge.

Although the trial court indicated initially that it was proper to

11
instruct the jury on the defense of accident, it changed its position

several times and ultimately rejected this instruction as to all

counts.13

Hours after the charge conference, in his closing argument,

Schmitt presented a slide labeled “KEY LEGAL PRINCIPLES” that

stated, “ACCIDENT: IF THIS WAS AN ACCIDENT, AND THERE

WAS NO CRIMINAL INTENT, THIS WAS NOT A CRIME.” The

State objected “based on the slide and that this is a legal principle.”

The State continued, “This is not a principle applicable to this case

and not a charge of the Court.” The court sent the jury out to discuss

with the parties. The trial court directed Schmitt that, although the

court rejected the accident charge, Schmitt could “argue that it was

unintentional” — in other words, Schmitt could argue that he lacked

the necessary intent. The trial court eventually brought back the

13The trial court opined, “[t]his is all going to turn on whether or not
accident refers to . . . whether or not the movement of the car is intentional or
not, notwithstanding the result of what happened and a suggestion that the
evidence — some parts of the evidence are that the result was unintended, but
the turn and the movement of the vehicle clearly was intended, and so I think
it comes down to that.” The trial court distinguished between the “use of
accident as we use it as human beings” and the legal definition of accident.
12
jury, sustained the State’s objection, and instructed the jury:

to disregard the statement offered by the defense counsel;

in particular, that “accident” is a key legal principle that
is a part of this case because it is not. It was therefore
improper for defense counsel to display a slide designated
Key Legal Principles with the word “accident” below it.

Schmitt continued his closing argument and insisted that

“[t]his was an accident” and that, “[i]f this was an accident, if there

was no criminal intent, then it’s not a crime.” The trial court

instructed the jury on the presumption of innocence, the burden of

proof, the definition of intent, the definition of malice, and that

malice could be express, implied, or both. During deliberations, the

jury requested a copy of Black’s Law Dictionary “for [a] definition of

abandoned and malignant heart[,]” to view the PowerPoint

presentations used by the parties in closing argument, and a

transcript of closing arguments. The trial court denied each of these

requests and instructed the jury to rely on the law as charged.

(a) The trial court erred in failing to instruct the jury on

accident as a defense to malice murder.

“[The] accident defense applies where the evidence negates the

13
defendant’s criminal intent, whatever that intent element is for the

crime at issue.” State v. Ogilvie, 292 Ga. 6, 9 (2) (b) (734 SE2d 50)

(2012). In the context of malice murder, that means that an accident

defense is available when there is evidence that the defendant

caused another’s death but acted without an express or implied

intent to commit an unlawful homicide. See id. at 10 (2) (c); OCGA §

16-5-1; Taylor v. State, 303 Ga. 624, 626 (1) (814 SE2d 353) (2018)

(defining intent requirement for malice murder).

“[T]o authorize a requested jury instruction, there need only be

slight evidence supporting the theory of the charge[.]” Wainwright

v. State, 305 Ga. 63, 70 (5) (a) (823 SE2d 749) (2019) (citation and

punctuation omitted). The State contends that slight evidence did

not support the accident instruction because, in the context of the

affirmative defense of accident, this Court has held that a

defendant’s conclusory claims that the defendant “didn’t mean to do

it” or that a particular act “was an accident” “are insufficient without

more to authorize a charge on accident.” Mann v. State, 307 Ga. 696,

699 (2) (a) (838 SE2d 305) (2020) (citation and punctuation omitted)

14
(holding that any error in failing to give requested accident

instruction was harmless, although defendant indicated he intended

to throw the seven-year old victim on a bed rather than on the

ground, because evidence — including that the victim’s “devastating

injuries, including bruising to his genitals, bruising to his body,

retinal hemorrhaging in both eyes, bleeding and swelling in the

brain, and ultimately brain death” resulted from the defendant’s

“intentional acts of beating, squeezing, and throwing” the victim —

overwhelmingly supported the jury’s finding that the defendant

acted with malice)); see also Mills v. State, 287 Ga. 828, 832 (4) (700

SE2d 544) (2010) (holding the misuse of a firearm described by the

defendant showed a degree of culpability which constituted criminal

negligence such that the trial court did not err in refusing the

accident instruction); McDade v. State, 270 Ga. 654, 657 (5) (513

SE2d 733) (1999) (holding that the trial court properly rejected

request for accident instruction when defendant’s statements and

versions of events either could not have resulted in victim’s fatal

gunshot wound or did not show the absence of a criminal scheme,

15
undertaking, intention, or criminal negligence), disapproved of on

other grounds by Clark v. State, 315 Ga. 423, 435 (3) (b) n.16 (883

SE2d 317) (2023).

But those decisions do not apply here. In each of those cases,

evidence of intentionality was strong and there was no theory of

accident that would not have necessarily constituted criminal

negligence. See Browner v. State, 296 Ga. 138, 144 (4) (765 SE2d

348) (2014) (defining criminal negligence as a “reckless and wanton

negligence of such a character as to show an utter disregard for the

safety of others who might reasonably be expected to be injured

thereby”) (citation and punctuation omitted).

In comparison, the evidence supporting Schmitt’s theory of

accident did not require a finding of criminal negligence. Instead,

the undisputed evidence showed that Schmitt turned his car left,

accelerated his car to between 15 and 16 miles per hour, veered his

car to the right and away from Jahangard, at some point tapped his

brakes, and that the left edge of Schmitt’s car struck Jahangard.

Nothing about this necessarily shows any criminal negligence

16
because Schmitt’s theory of accident does not rest on conduct which

is itself a criminal act and because a rational juror could find from

the evidence that this was an accident. And so in this context,

Schmitt’s testimony that the collision was an accident presented at

least slight evidence necessary to warrant an instruction on the

defense of accident.

The State argues that Schmitt acted with an utter disregard

for Jahangard’s safety (and thus criminal negligence) when he

accelerated into the driveway with knowledge of Jahangard’s

location. But this is a disputed issue, and there was other evidence

that a juror could find showed a lack of such criminal negligence.

Schmitt testified that he turned into the driveway “to try to sort out

what happened and to see if there was any damage to [his] car.”

Schmitt denied using the car as a weapon, denied intending to

intimidate Jahangard, and denied intentionally striking Jahangard.

Rather, Schmitt testified that he misjudged the turning radius of his

car, he lost his focus on Jahangard as he checked for traffic as he

turned, he turned his car to the right — away from Jahangard —

17
before the collision, and he slammed on brakes. Moreover, Schmitt

and his expert testified that his brake lights came on, went off, and

came back on before the collision; witnesses testified that Schmitt

rendered immediate aid; video footage corroborated that he

rendered immediate aid; both experts testified that Schmitt turned

his car to the right, away from Jahangard, before the collision; both

experts described that the front left corner of Schmitt’s car (rather

than the center of the car) hit Jahangard; and Schmitt’s expert

testified that a GBI investigative report revealed that there was no

automotive paint, plastic, or grease on Jahangard’s clothes.

Therefore, at least slight evidence supported that “there was

no criminal scheme or undertaking, intention, or criminal

negligence,” and the trial court erred in declining the accident

instruction. OCGA § 16-2-2.

(b) The trial court’s error was not harmless.

The State has failed to carry its burden to show that this error

was harmless. Evidence of Schmitt’s criminal intent was conflicting

and far from overwhelming, and the harm from the trial court’s

18
failure to instruct the jury on the defense of accident was

compounded by the trial court’s express instruction that the jury

must “disregard” that accident was a key legal principle.

As an initial matter, it is well settled that “[t]he test for

determining nonconstitutional harmless error is whether it is highly

probable that the error did not contribute to the verdict.” Jivens v.

State, 317 Ga. 859, 863 (2) (896 SE2d 516) (2023) (citation and

punctuation omitted). For this analysis, “we review the record de

novo and weigh the evidence as we would expect reasonable jurors

would have done instead of viewing it in the light most favorable to

the jury’s verdict.” Id.

The parties do not dispute that Schmitt caused Jahangard’s

death when he turned his car into the driveway and his car collided

with Jahangard. Rather, the central question presented to the jury

was whether Schmitt acted with criminal intent. 14 And evidence as

In his opening statement, Schmitt condensed the crux of his argument:

14

The one real dispute in this case, the one question that really
matters, the key question that you, the jury, will have to answer
when deciding the fate of Mr. Schmitt is this. What was Mr.

19
to this point was far from overwhelming.

The State contends that evidence of Schmitt’s conduct and

demeanor before, during, and after the collision presented evidence

of his criminal intent — that he intended to kill Jahangard. See

Guzman-Perez v. State, 310 Ga. 573, 576-577 (1) (853 SE2d 76)

(2020) (“[C]riminal intent is a question for the factfinder, and can be

inferred from the defendant’s conduct before, during, and after the

commission of the crimes[.]”). Among other things, the State points

to the argument before the collision, which was corroborated with

time-stamped video footage showing Jahangard on the phone at this

time and the fact that Jahangard’s phone was found hours later,

“completely shattered,” under the car’s windshield wiper. The State

elicited that Schmitt intended to return to where he saw Jahangard

standing, to turn left despite knowing Jahangard’s proximity to his

Schmitt intending to do when he pulled in that driveway and made

that turn?
Similarly, in closing argument, the State explained to the jury that “[t]he
question is whether or not the defendant’s intentional actions, as demonstrated
by the evidence that’s been introduced here and by his own admissions, were
criminal. Were they criminal? That is the dispute at issue. That’s it.”
20
car, and to accelerate his car. The State pointed to expert testimony

that, once the turn began, the collision was inevitable. The State’s

expert further opined that the stain on Jahangard’s pants must have

come from tire transfer, the car’s front tire rolled over his knee and

ankle, the car’s rear tire rolled over his knee, and that evidence of

the injuries was inconsistent with an accidental collision. Witnesses

described how “awfully fast,” “all of a sudden,” and “quick” the car

turned and sent “very tall garbage cans in the air a good three to

four feet.” These witnesses were “a little struck that there wasn’t

more emotion or concern” and described Schmitt’s demeanor as

“very emotionless, very plain[,]” and “nonchalant[,]” “a little

defensive[,]” and seemingly not concerned about Jahangard. These

witnesses also testified as to differing accounts Schmitt provided

about what happened: (1) Jahangard pushed a trashcan on

Schmitt’s car, which bounced off and knocked Jahangard over; (2)

Schmitt could not remember what happened, or (3) Jahangard

jumped in front of his car. The State contended the fact that in each

account Schmitt mentioned the argument, mentioned the golf ball,

21
and downplayed Jahangard’s injuries further evidenced Schmitt’s

criminal intent.

On the other hand, Schmitt asserts that evidence from before,

during, and after the collision shows an absence of criminal intent.

Among other things, Schmitt points to his testimony that he

intended to de-escalate the situation and talk it over, he misjudged

the turning radius of his car, he lost his focus on Jahangard while

making the turn, he instinctively cut his wheel to the right and hit

the brakes, and he exited the car and, without turning it off,

rendered immediate aid. Schmitt corroborated his testimony about

rendering aid with witness testimony and video footage. Schmitt

also denied using the car as a weapon or to strike Jahangard.

Moreover, Schmitt presented expert testimony opining that

Schmitt’s brake lights came on twice and that Schmitt veered away

from Jahangard, thus indicating his efforts to slow down and avoid

hitting Jahangard, Schmitt moved between fifteen and sixteen miles

per hour during the turn, and that the car did not run over

Jahangard’s leg. Further, expert testimony highlighted that the

22
GBI’s investigative report did not reveal the presence of automotive

paint, plastic, or grease on Jahangard’s clothes.

Although there was certainly evidence supporting the State’s

theory that Schmitt acted with malice, that evidence was disputed

and not overwhelming. This is especially so when undisputed

evidence showed that Schmitt turned his car away from Jahangard

such that only the edge of his car struck Jahangard, Schmitt

immediately rendered aid, and Schmitt did not leave or try to leave

until police officers dismissed him. See Rush v. State, 294 Ga. 388,

390 (2) (a) (754 SE2d 63) (2014) (evidence of a defendant’s attempt

to flee or evade arrest can be circumstantial evidence of guilt).

The State contends that any error was harmless because the

trial court did not foreclose Schmitt’s accident defense and because,

in finding Schmitt guilty of malice murder, the jury necessarily

rejected this defense. We disagree.

One way that the failure to give an accident instruction can be

harmless is if the jury finds the defendant guilty of malice murder

after “the trial court properly instructed the jury on the elements of

23
murder and the requisite malicious intent[,]” because the jury’s

conclusion that the defendant acted with malice necessarily means

that the jury would have discredited the accident defense. McClain

v. State, 303 Ga. 6, 9-10 (2) (810 SE2d 77) (2018); see also Sears v.

State, 290 Ga. 1, 4 (3) (717 SE2d 453) (2011); Hannah v. State, 278

Ga. 195, 197 (2) (599 SE2d 177) (2004). But that conclusion does not

follow here where, in addition to failing to instruct the jury on the

defense of accident, the trial court instructed the jury to disregard

that accident was a key legal principle — even though Schmitt

testified that the collision was an accident, and during Schmitt’s

closing argument in response to a demonstrative slide defining

accident as the lack of criminal intent. 15

Qualified jurors are presumed to follow jury instructions. See

Robinson v. State, 308 Ga. 543, 552 (2) (b) (ii) (842 SE2d 54) (2020).

15 Although the trial court directed that Schmitt could “argue that it was
unintentional” such that he lacked the requisite criminal intent, this
clarification was outside the presence of the jury. Schmitt explained to the jury
that “the principle [was] correct” that “[i]f this was an accident, if there was no
criminal intent, then it’s not a crime.” But by then, the trial court had already
instructed the jury to “disregard” that accident was a key legal principle in this
case.
24
Because the trial court instructed the jury to disregard accident as

a key legal principle, we assume that the jury followed this

instruction and so disregarded accident as a key legal principle in

reaching the verdicts.

Moreover, the trial court’s failure to instruct the jury on the

defense of accident taken together with the trial court’s direction

that the jury “disregard” accident as a “key legal principle” meant

that the jury was not authorized to find that the collision was an

accident. Although Schmitt presented evidence supporting his

accident theory and advanced this theory in his opening statements,

throughout trial, and in his closing argument, the trial court refused

the instruction and so “deprived the jury of the necessary tools to

evaluate the charges against [Schmitt] and to reach a verdict[.]”

Henry v. State, 307 Ga. 140, 146 (2) (c) (834 SE2d 861) (2019) (“[J]ury

instructions are the lamp to guide the jury’s feet in journeying

through the testimony in search of a legal verdict.” (punctuation and

citation omitted)).

Under these circumstances, we cannot say that it is highly

25
probable that the trial court’s error in declining the accident

instruction did not contribute to the verdict for malice murder. We

therefore reverse Schmitt’s conviction as to this count.

(c) Schmitt also contends that the trial court erred in declining

the accident instruction as to the remaining counts, and that this

error was not harmless. We agree and accordingly reverse those

counts as well.

Because we reverse the malice murder conviction, the felony

murder counts predicated on aggravated assault are no longer

vacated as a matter of law. See Clough v. State, 298 Ga. 594, 597-

598 (2) (783 SE2d 637) (2016) (considering impact of trial court’s

failure to instruct the jury on voluntary manslaughter as to vacated

felony murder counts, after concluding the malice murder conviction

was due to be reversed). Thus, we address whether the trial court

erred in omitting the accident instruction as to those counts.

The indictment charged Schmitt with a total of five counts.

Count 1 charged him with malice murder. Count 2 charged him with

felony murder predicated on aggravated assault as alleged in Count

26
4, which alleged that he committed an assault on Jahangard’s

person with a motor vehicle by striking him with such vehicle.16

Count 3 charged him with felony murder predicated on aggravated

assault as alleged in Count 5, which alleged that he committed an

assault on Jahangard’s person with a motor vehicle and by driving

towards Jahangard, thereby placing him in reasonable

apprehension of immediately receiving a violent injury. 17

In contrast to malice murder, “[p]roof of felony murder does not

require proving malice or the intent to kill, but only that the

defendant had the requisite criminal intent to commit the

underlying felony.” Tessmer v. State, 273 Ga. 220, 222 (2) (539 SE2d

816) (2000) (citations and punctuation omitted); see also OCGA § 16-

5-1 (c) (“A person commits the offense of murder when, in the

16 Count 4 charged that Schmitt “did unlawfully commit an assault upon

the person of Hamid Jahangard with a motor vehicle, an object which when
used offensively against another is likely to result in serious bodily injury, by
striking him with said motor vehicle[.]”
17 Count 5 charged that Schmitt “did unlawfully commit an assault upon

the person of Hamid Jahangard with a motor vehicle, an object which when
used offensively against another is likely to result in serious bodily injury, by
driving at toward and in the direction of the said Hamid Jahangard, said act
placing him in reasonable apprehension of immediately receiving a violent
injury[.]”
27
commission of a felony, he or she causes the death of another human

being irrespective of malice.” (emphasis added)). It follows, then, that

although felony murder has no specific mens rea that accident can

defeat, accident can effectively act as a defense to felony murder

when it is a defense to the predicate offense. See Tessmer, 273 Ga.

at 222-223 (2) (identifying no error in charging the jury that accident

was not a defense to felony murder, given that the jury also was

charged that accident was a defense to the underlying felony of

aggravated assault and that it could not convict for felony murder

unless defendant was found guilty of the underlying felony of

aggravated assault; noting that “mens rea is a necessary element of

aggravated assault”); see also Scott v. State, 306 Ga. 417, 422-423

(3) (831 SE2d 813) (2019) (holding trial court did not plainly err in

instructing the jury that “the defense of accident did not apply to

felony murder based on aggravated assault if the jury found that the

aggravated assault was intentional” (emphasis added)). And here,

the indictment predicated the two felony murder counts on the

offense of aggravated assault.

28
 Aggravated assault has two elements: (1) the commission of a

simple assault under OCGA § 16-5-20 and (2) the presence of a

statutory aggravator. See OCGA § 16-5-21 (a). “[T]he simple assault

encompassed within aggravated assault may be committed in two

ways: when a person ‘[a]ttempts to commit a violent injury to the

person of another,’ OCGA § 16-5-20 (a) (1), or when a person

‘[c]ommits an act which places another in reasonable apprehension

of immediately receiving a violent injury. [OCGA § 16-5-20] (a) (2).’”

Kipp v. State, 294 Ga. 55, 59 (2) (a) (751 SE2d 83) (2013).

The substance of Count 4 alleged that Schmitt committed a

simple assault under OCGA § 16-5-20 (a) (1), and the substance of

Count 5 alleged that Schmitt committed a simple assault under

OCGA § 16-5-20 (a) (2). In both counts, the statutory aggravator

alleged is that Schmitt committed assault “with a motor vehicle, an

object which when used offensively against another is likely to result

in serious bodily injury[.]” See OCGA § 16-5-21 (a) (2). Against this

backdrop, and considering that “[the] accident defense applies where

the evidence negates the defendant’s criminal intent, whatever that

29
intent element is for the crime at issue,” Ogilvie, 292 Ga. at 9 (2) (b),

we address separately the aggravated assault allegations in Counts

4 and 5.

(i) Aggravated Assault as Alleged in Count 4

The crime of simple assault as set forth in OCGA § 16-5-20 (a)

(1) requires “the presence of criminal intent[.]” Kipp, 294 Ga. at 59

(2) (a). There must be an “intent to cause harm[,]” which refers “to

the requisite mens rea of intent” and also “to a defendant’s

deliberate purpose to accomplish an injurious result.” State v.

Springer, 297 Ga. 376, 381 (1) (774 SE2d 106) (2015).

Here, as set forth above, more than slight evidence negated

that Schmitt acted with the intent to cause harm or with the

deliberate purpose of harming Jahangard. Because more than slight

evidence negated that Schmitt acted with the requisite criminal

intent, the trial court erred in declining the accident instruction as

to Counts 2 and 4.

(ii) Aggravated Assault as Alleged in Count 5

The crime of simple assault as set forth in OCGA § 16-5-20 (a)

30
(2) requires the State to prove that the defendant acted with

criminal intent to commit the act which caused the victim to be

reasonably apprehensive of receiving a violent injury. See Patterson

v. State, 299 Ga. 491, 493 (789 SE2d 175) (2016) (holding that the

State need not prove the defendant driver acted with a specific

intent to place the victim in such apprehension when “evidence of

[the defendant’s] intent to drive the vehicle as he did [was]

undisputed”); see also Stobbart v. State, 272 Ga. 608, 611 (3) (533

SE2d 379) (2000) (“There is an intent of the accused that must be

shown, but it is only the criminal intent to commit the acts which

caused the victim to be reasonably apprehensive of receiving a

violent injury[.]” (emphasis added; citation and punctuation

omitted)).

The State contends, and Schmitt concedes, that Patterson

precluded the accident instruction as to Counts 3 and 5, because

Schmitt intended to do the act which placed Jahangard in

31
reasonable apprehension of immediate violent injury. 18 Both parties

appear to interpret Patterson to mean that because Schmitt

intended to turn his car, an accident instruction was improper as to

these counts because the State did not have to prove that Schmitt

acted with the specific intent to place Jahangard in reasonable

apprehension of immediate violent injury. But that construction

omits altogether the requirement that a defendant act with criminal

intent in committing the act which places another in such

apprehension.

In Patterson, during an argument in which the victim asked

Patterson to leave, “Patterson went to his vehicle, put it into gear,

revved the engine, and rapidly drove directly toward the end of the

home, near [the victim], who became pinned against the side of the

18In his brief and at oral argument, Schmitt conceded that Patterson was
binding as to Counts 3 and 5, such that the trial court did not err in declining
the accident instruction as to those counts. Instead of arguing that Patterson
does not preclude the accident defense as to these counts, Schmitt asked that
we overrule Patterson. But we are not required to accept a party’s concession
on a matter of law. And because Patterson as we explain it today did not
preclude the accident defense as to these counts, we do not reach the question
of reconsidering it.
32
home by the vehicle[.]” 299 Ga. at 491. Patterson’s criminal intent

in performing these acts was clear: “evidence of Patterson’s intent to

drive the vehicle as he did [was] undisputed.” Id. at 493 (emphasis

added). Thus, the requirement that Patterson act with criminal

intent as he did the act which placed the victim in such

apprehension was satisfied.

In contrast, at least some evidence supports Schmitt’s claim

that, although he intended to turn his car, he did not intend to turn

it in the way that he did, so he did not have criminal intent. Because

at least slight evidence created such a question as to whether

Schmitt acted with the requisite intent, the trial court erred in

declining the accident instruction as to Counts 3 and 5.

Finally, for the same reasons as above, the trial court’s error in

declining the accident instruction as to Counts 2, 3, 4, and 5 was not

harmless, and so we reverse those counts.

Judgment reversed. All the Justices concur.

33