State v. Fearing

269 S.E.2d 245 (1980) 48 N.C. App. 329

STATE of North Carolina
v.
Charles Silsby FEARING.

No. 791SC1197.

Court of Appeals of North Carolina.

August 19, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Elizabeth C. Bunting, Raleigh, for the State.

Charles Aycock, III, Manteo, and Stewart & Hayes by David K. Stewart, Dunn, and Brenton D. Adams, Raleigh, for defendant-appellant.

MORRIS, Chief Judge.

By assignments of error Nos. 15 and 38, defendant contends that the court improperly denied his motion to dismiss the charge of leaving the scene of an accident.

In determining the sufficiency of the evidence to go to the jury, all of the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference deducible therefrom. State v. Lee, 294 N.C. 299, 240 S.E.2d 449 (1978). When so viewed, that evidence must be sufficient to permit a rational trier of fact to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

G.S. 20-166(a), upon which defendant was charged and convicted, provides:

The driver of any vehicle involved in an accident or collision resulting in injury or death to any person shall immediately stop such vehicle at the scene of such accident or collision, and any person violating this provision shall upon conviction be punished as provided in G.S. 20-182 [providing for punishment of from one to five years in prison and for fine of not less than $500.00, or both, with automatic revocation of defendant's operator's license].

The general purpose of this statute is to facilitate investigation of automobile accidents and to assure immediate aid to anyone injured by such collision. State v. Smith, 264 N.C. 575, 142 S.E.2d 149 (1965). A driver violates this section if he does not stop immediately at the scene of the accident. State v. Norris, 26 N.C.App. 259, 215 S.E.2d 875, appeal dismissed, 288 N.C. 249, 217 S.E.2d 673 (1975), cert. denied, 423 U.S. 1073, 96 S.Ct. 856, 47 L.Ed.2d 83 (1976). Furthermore, the absence of fault on the part of the driver is not a defense to the charge of failing to stop at the scene of an accident. State v. Smith, supra.

To support a verdict of guilty under G.S. 20-166(a), the State must prove that defendant was driving the automobile involved in the accident at the time it occurred; that the vehicle defendant was driving came into contact with another person resulting in injury or death; and that defendant, knowing he had struck the victim, failed to stop immediately at the scene. State v. Overman, 257 N.C. 464, 125 S.E.2d 920 (1962). Knowledge of the driver that his vehicle has been involved in an accident resulting in injury to a person is an essential element of this offense. State v. Glover, 270 N.C. 319, 154 S.E.2d 305 (1967); State v. Ray, 229 N.C. 40, 47 S.E.2d 494 (1948).

In the present case, defendant argues that there was no evidence which showed that he had knowledge that he had been involved in an accident resulting in injury or death to some person. We disagree. Without further detailing the evidence submitted at trial, we find that the evidence showed that defendant was aware of the tremendous damage to his vehicle resulting from something coming into contact with his automobile on the highway; that the damage to the automobile indicated that whatever defendant hit came into contact with his automobile at three points, and that when the windshield "exploded" the inside dashboard of the automobile was smashed. These facts, in addition to the circumstances surrounding defendant's statements and actions after the accident, support a reasonable inference that defendant knew he had been involved in an accident resulting in injury to a person, notwithstanding the fact that there may also be reasonable inferences to the contrary. See State v. Glover, supra; State v. Smith, 40 N.C.App. 72, 252 S.E.2d 535 (1979).

Defendant's contention that certain exculpatory statements made by him to officers, that he had no knowledge that he had hit another person, compel the granting of his motion to dismiss, is without merit. Although a defendant's exculpatory statements which exonerate a defendant, if offered by the State and not contradicted by other evidence, ordinarily compel nonsuit, State v. Ray, supra, the defendant's statement does not prevent the State from showing that the facts and circumstances were different. State v. Freeman, 31 N.C.App. 93, 228 S.E.2d 516, cert. denied, 291 N.C. 449, 230 S.E.2d 766 (1976); State v. Glover, supra. Here, the State offered plenary evidence to contradict defendant's statement that he had no knowledge, and to permit, although not compel, a jury to find that he did have such knowledge. Defendant's motion to dismiss the charge under G.S. 20-166(a) was, therefore, properly denied. By so holding, we also overrule defendant's thirty-ninth assignment of error that the court erred by failing to charge the jury on the effect of exculpatory statements made by the defendant which were offered by the State.

Defendant next argues that the trial court should have dismissed the charge of death by vehicle under G.S. 20-141.4 because, according to defendant, there was no evidence which showed that defendant violated the statute cited in the indictment, or any other law, which would constitute the proximate cause of Cloise Creef's death. The indictment of death by vehicle returned against defendant charged that he violated G.S. 20-174(e) in that he operated his automobile "without exercising due care to avoid colliding with a pedestrian upon the roadway, without giving warning by sounding horn when necessary, and without exercising proper precaution upon observing a confused and incapacitated person upon such roadway . . . ." This section is an adoption of the rule at common law that "every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway." Lewis v. Watson, 229 N.C. 20, 26, 47 S.E.2d 484, 488 (1948).

Under G.S. 20-174(e), a motorist has the duty, which is applicable to all motorists generally, to operate his vehicle at a reasonable rate of speed, keep a lookout for persons on or near the highway, decrease his speed when special hazards exist with respect to pedestrians, and give warning of his approach by sounding his horn if the circumstances warrant. Morris v. Minix, 4 N.C.App. 634, 167 S.E.2d 494 (1969). In determining whether defendant breached his duty of care and in doing so violated G.S. 20-174(e), we must review the evidence presented under the standard for review of motions to dismiss previously discussed.

The evidence indicates that defendant was driving west on Highway 64-264 at about 8:00 p. m. at a rate of speed of 30-40 miles per hour. From the area where Creef's body was found and for at least 175 feet eastward, there were no trees or other obstructions along the northern side of the highway. A grassy shoulder about 10 feet wide bordered the road at that point. The ditch in which Creef was found ran along the northern edge of the shoulder. An open field occupied the immediate area beyond the ditch.

It was stipulated that Creef came into contact with defendant's vehicle. The point of impact, as determined from the damage to defendant's automobile, appeared to be the right front portion of the vehicle. Since there was no evidence tending to show that defendant's vehicle ever left the paved portion of the road, the inference is that the collision occurred on the paved portion of the westbound lane within several feet from the shoulder of the road. At the time the collision occurred, defendant had reached down under his seat, gotten a towel, and was handing the towel to a passenger in the back seat of the automobile. At this point, defendant testified, the "windshield exploded".

Defendant strongly urges that there is no evidence that, at the time the incident occurred, he was violating a motor vehicle law either by speeding, by failing to sound his horn upon observing Creef in or about the highway, or by failing to do everything within his means to prevent the collision upon seeing Creef in the highway. Despite this argument, we conclude that when the evidence is reviewed in the light most favorable to the State, and the State is given the benefit of every reasonable inference to be drawn therefrom, the evidence is sufficient to permit a jury to find defendant guilty of failing to exercise due care in the operation of his vehicle. It is reasonable to infer from the evidence that defendant should have been aware of Creef's presence in or around the highway, and should have been able to take emergency measures to prevent hitting a person on the paved portion of the highway. Since the evidence is sufficient to permit conviction for a violation of G.S. 20-174(e), it follows that submission of the charge of death by vehicle based on a violation of that section was proper. In so holding, we add that the evidence permits a finding by the jury that defendant's collision with Creef was the proximate cause of Creef's death.

Defendant further assigns error to the trial court's failure to charge the jury on the defense of justification and excuse, arguing that the presence of a sick and "hysterical" woman in the automobile is sufficient evidence to warrant such an instruction.

"The trial judge must charge the jury on all substantial and essential features of a case which arise upon the evidence, even when, as here, there is no special request for the instruction." State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977). In his instructions to the jury on the charge of failing to stop at the scene of an accident, the court included the instruction that defendant's failure to stop must be "willful, that is, intentional and without justification or excuse." See N.C.P.I.—Criminal 271.50. We find no evidence which would support the instruction for which defendant contends. Evidence that there was a sick passenger in defendant's vehicle does not warrant a separate instruction on legal justification and excuse. This assignment of error is overruled.

We have carefully examined defendant's remaining assignments of error and find them without merit. Defendant received, in our opinion, a fair trial free from prejudicial error.

No error.

CLARK and ERWIN, JJ., concur.