Opinion
NO. COA11-84
09-06-2011
STATE OF NORTH CAROLINA v. JAMES EDWARD WILLIAMS
Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State. Reece & Reece, by Michael J. Reece, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Washington County No. 09 CRS 50267
Appeal by defendant from judgment entered 30 August 2010 by Judge Marvin K. Blount in Washington County Superior Court. Heard in the Court of Appeals 16 August 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.
Reece & Reece, by Michael J. Reece, for defendant-appellant.
McCULLOUGH, Judge.
James Edward Williams, Jr. ("defendant") appeals from a judgment entered upon his conviction by a jury for felony hit-and-run causing personal injury. On appeal, defendant's sole contention is that the trial court committed plain error in failing to instruct the jury on the lesser included offense of misdemeanor hit-and-run. We find no error.
I. Background
The State's evidence at trial tended to show the following: In the early morning hours of 3 May 2009, Epiffany Davis ("Davis") was driving home from a friend's house in Macedonia, North Carolina. She was driving her father's 1995 Jeep Cherokee. Upon leaving her friend's house, Davis pulled out onto N.C. Highway 32 and noticed a vehicle rapidly approaching her from the rear, but she assumed the vehicle would pass her. Instead, the vehicle crashed into the back of her Jeep, causing her Jeep to run into a ditch and hit a tree. The air bag deployed and Davis could smell gas fumes. She got out of the Jeep, but her leg was injured and she fell to the ground. Her friend came from the house, only a few feet away, and moved Davis to the side of the road to wait for an ambulance.
The vehicle that hit Davis's Jeep stopped on the other side of the road. A third vehicle appeared and a person from that vehicle approached the driver of the vehicle that hit Davis. Both individuals then went back to the third vehicle and drove away. Approximately five minutes after the accident occurred, an ambulance arrived and took Davis to the hospital. She received X-rays, MRIs, and medication for pain in her neck, back, and leg. She later had a follow-up appointment with her doctor and was still experiencing neck and back pain at the time of the trial. Davis testified that she recognized defendant as the person who left the vehicle that hit her.
On cross-examination, Davis estimated that when she pulled onto the highway, the other vehicle was approximately a quarter mile back. She stated that she was traveling at about 45 miles per hour when her Jeep was struck from behind, and that she had not decelerated before the impact. Davis acknowledged that she told the responding officer that she "never saw the driver of the vehicle that hit [her]." She explained that she had not known who defendant was, but she saw him after he got out of his vehicle.
Trooper Christopher Moore ("Trooper Moore") of the State Highway Patrol responded to the scene of the collision. He found Davis's Jeep Cherokee in a ditch where it had hit a tree, and he found a Ford Escape in a ditch across the road. The rear of the Jeep was pushed in and crushed. Trooper Moore used the Highway Patrol's system of rating vehicle damage to categorize the damage to the rear of the Jeep as a five on a scale of one to seven. The front of the Jeep was also pushed in, and the radiator and grille were "busted." Trooper Moore determined the damage rating for the front of the Jeep was a three on the scale of one to seven.
Trooper Moore also examined the damage to the Ford Escape. The front end of the Escape was pushed in, and the headlights, grille, and radiator were "busted." Trooper Moore rated the damage as a four. He did not observe any skid marks before the point of impact, and he determined that the vehicles traveled around 90 to 95 feet from the point of impact to their final resting places. Trooper Moore then called two wreckers to tow the vehicles from the scene. From the registration plate, Trooper Moore discovered that the Escape belonged to Trina Basnight ("Basnight"), who resided in Martin County, North Carolina. Trooper Moore went to Basnight's home at 6:30 a.m., but no one answered the door. Trooper Moore returned to the residence the following afternoon with a Martin County deputy. While they were standing in the yard, a Mercedes pulled into the driveway, then backed out and left. Trooper Moore and the deputy immediately pursued the Mercedes and stopped the vehicle, which was driven by Basnight. While talking to Basnight, Trooper Moore observed a man walking down the highway away from the officers. The deputy went to speak with the man, but the man ran into the woods. However, the man, later identified as defendant, was apprehended.
Defendant provided a written statement to Trooper Moore. In his statement, defendant related that he was driving 50 miles per hour on the highway when he came up behind a van that hit its brakes "very suddenly with no brake lights or turn signals." He hit his brakes and swerved to the left to avoid the collision, but his car hit the van and was thrown to the left side of the road. He got out of his car and ran to the other car to see if anyone was hurt, but "no one was there." He left the scene because he "was very scared and nervous." Trooper Moore noted that defendant had a cut on his forehead, to which defendant responded that his head had hit the windshield in the accident.
Defendant testified in his own defense. He stated that in the early morning hours of 3 May 2009, he was driving on N.C. Highway 32 at approximately 55 miles per hour on cruise control. He followed Davis's vehicle for approximately a half mile, when it suddenly slowed down as if to turn without any brake lights or signal lights coming on. Defendant stated he hit his brakes but his anti-lock brake system jammed, so he swerved to the left to avoid an accident. He said his front fender hit the other vehicle on the left side and his vehicle bounced off and went into a ditch.
Defendant recalled that he hit his head on the windshield and felt dizzy. He testified that he went over to Davis's car but both doors were open and he did not see anybody. He said his head was bleeding and he did not have a cell phone, so he left to try to get help for himself. He stated his left shoulder was dislocated and his knee was hurt. Defendant stated he did not report the accident that night because he passed out and was unconscious from his injuries. He later went to the hospital for treatment of his injuries, after he was apprehended by authorities.
The jury returned a verdict of guilty of felony hit-and-run causing personal injury. The trial court determined defendant to be a prior record level VI based on twenty prior record level points. The court sentenced defendant in the presumptive range for a Class H felony to a term of imprisonment of 16 to 20 months. Defendant appeals.
II. Plain error
In the present case, defendant did not object to the jury instructions as given by the trial court, nor did he request an instruction on the lesser included offense; thus, "he is barred by Rule 10([a])(2) of the North Carolina Rules of Appellate Procedure from assigning as error the trial court's failure to instruct the jury on lesser-included offenses supported by evidence at trial." State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993); N.C.R. App. P. 10(a)(2) (2011) ("A party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires to consider its verdict[.]"). Nonetheless, "[i]n criminal cases, an issue that was not preserved by objection noted at trial . . . may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R. App. P. 10(a)(4). Here, defendant argues the trial court committed plain error in failing to instruct the jury on the lesser included offense of misdemeanor hit-and-run. Accordingly, our analysis of this issue is limited to a review for plain error.
"Plain error" does not connote simply "obvious or apparent error." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). "'[T]o reach the level of "plain error" . . . , the error in the trial court's jury instructions must be "so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached."'" State v. Finney, 358 N.C. 79, 89, 591 S.E.2d 863, 869 (2004) (alterations in original) (quoting Collins, 334 N.C. at 62, 431 S.E.2d at 193 (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988))). The defendant bears the burden of convincing this Court that " absent the error, the jury probably would have reached a different verdict." State v. Cromartie, 177 N.C. App. 73, 76, 627 S.E.2d 677, 679 (2006). We "must examine the entire record and determine if the . . . error had a probable impact on the jury's finding of guilt." State v. Pullen, 163 N.C. App. 696, 701, 594 S.E.2d 248, 252 (2004) (alteration in original) (internal quotation marks omitted).
Defendant was charged with felony hit-and-run involving personal injury pursuant to section 20-166(a1) of the North Carolina General Statutes:
(a1) The driver of any vehicle who knows or reasonably should know:N.C. Gen. Stat. § 20-166(al) (2009). A violation of this section is punishable as a Class H felony. Id.
(1) That the vehicle which he or she is operating is involved in a crash; andshall immediately stop his or her vehicle at the scene of the crash. The driver shall remain with the vehicle at the scene of the crash until a law enforcement officer completes the investigation of the crash or authorizes the driver to leave and the vehicle to be removed, unless remaining at the scene places the driver or others at significant risk of injury.
(2) That the crash has resulted in injury;
Defendant argues the trial court also should have instructed the jury on the lesser included offense of misdemeanor hit-and-run pursuant to section 20-166(c) of the North Carolina General Statutes:
(c) The driver of any vehicle, when the driver knows or reasonably should know that the vehicle which the driver is operating is involved in a crash which results:N.C. Gen. Stat. § 20-166(c). The only difference in what the State must prove for the offense of misdemeanor hit-and-run and felony hit-and-run involving personal injury is the element that defendant knew or reasonably should have known that the crash resulted in injury.
(1) Only in damage to property; orshall immediately stop the vehicle at the scene of the crash. If the crash is a reportable crash, the driver shall remain with the vehicle at the scene of the crash until a law enforcement officer completes the investigation of the crash or authorizes the driver to leave and the vehicle to be removed, unless remaining at the scene
(2) In injury or death to any person, but only if the operator of the vehicle did not know and did not have reason to know of the death or injury;
places the driver or others at significant risk of injury.
Defendant contends the evidence does not conclusively show that he knew or reasonably should have known that Davis was injured. He asserts that no evidence was presented that he saw Davis after the accident. He points out that he presented evidence that he ran to the other car and did not see anyone there. Further, he contends evidence of the air bag having deployed and the car doors being left open indicates that any person in the car was able to get out and leave. Defendant argues that without the element of knowledge or implied knowledge, he could not be found guilty of felony hit-and-run, and the court erred by failing to instruct on misdemeanor hit-and-run. We are not persuaded.
Generally, "'[a] trial court is required to give instructions on a lesser-included offense . . . when there is evidence to support a verdict finding the defendant guilty of the lesser offense.'" State v. Brunson, 187 N.C. App. 472, 478, 653 S.E.2d 552, 555 (2007) (quoting State v. Singletary, 344 N.C. 95, 103, 472 S.E.2d 895, 900 (1996)). However, "[w]here the evidence is sufficient to support the offense submitted to the jury, it is not plain error for the trial court to refuse to submit a lesser charge." State v. Wright, ____ N.C. App. ____, ____, 708 S.E.2d 112, 124, disc. review denied,____ N.C. ____, 710 S.E.2d 9 (2011). "'The sole factor determining the judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.'" State v. Richmond, 347 N.C. 412, 431, 495 S.E.2d 677, 687 (1998) (quoting State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981)).
Here, the State presented clear and positive evidence of each element of the offense of felony hit-and-run involving personal injury. Evidence was presented that defendant's vehicle was traveling at 55 miles per hour and Davis's Jeep was traveling at 45 miles per hour when defendant's vehicle hit the rear end of Davis's Jeep. Both vehicles traveled approximately 90 to 95 feet after the collision, forcing the Jeep off the road into a ditch where it struck a tree. Defendant's vehicle likewise went off the road on the other side into a ditch. The damage to Davis's Jeep was extensive, with a crushed rear end, and a crushed front end with a broken radiator and grille. Defendant's vehicle also sustained significant damage - the front end of the vehicle was compressed with a broken radiator, grille, and headlights.
In addition, Davis testified that she saw defendant get out of his vehicle and leave the scene with a third person. If Davis saw defendant to the extent she was able to recognize him in court and describe his actions, it is likely that he could have seen her. Nevertheless, evidence was presented that defendant did not check to see if anyone remained at the scene before he left. Evidence was also presented that an ambulance arrived at the scene within five minutes of the crash, and defendant had already left when the ambulance arrived. Furthermore, defendant himself was injured in the accident, having hit his head on the windshield causing dizziness and bleeding and having injured his left shoulder and knee. Such evidence further shows that defendant reasonably should have known that the driver of the other vehicle would also have been injured.
We conclude that sufficient evidence was presented to support the State's contention that defendant knew or reasonably should have known that Davis was injured in the accident and that the record contains no evidence to the contrary. Although defendant testified that he looked but saw no one in the other vehicle, we are not convinced that "the jury probably would have reached a different verdict" had it been instructed as to the lesser-included offense, given the substantial evidence to the contrary introduced by the State and the statutory requirement of reasonableness. See State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Thus, the trial court's failure to instruct the jury on the lesser included offense does not amount to plain error.
No error.
Judges McGEE and ERVIN concur.
Report per Rule 30(e).