NO. COA14-1
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. Buncombe County
No. 11 CRS 51219
OMARI JIBRI WILLIAMS
Upon writ of certiorari from judgment entered 15 December
2011 by Judge Richard L. Doughton in Buncombe County Superior
Court. Heard in the Court of Appeals 22 April 2014.
Roy Cooper, Attorney General, by Kevin G. Mahoney,
Assistant Attorney General, for the State.
Craig M. Cooley for defendant-appellant.
STEELMAN, Judge.
Where defendant failed to make a motion to dismiss at the
close of all of the evidence, he waived the right to appeal that
issue. Where there was substantial evidence presented that
defendant should reasonably have known that the crash resulted
in serious bodily injury to a person, it was for the jury to
determine the weight and credibility of the evidence. Defendant
failed to show prejudice arising from the failure of his counsel
to make a motion to dismiss at the close of all of the evidence.
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I. Factual and Procedural Background
On the evening of 28 January 2011, Omari Jibri Williams
(defendant) had been drinking with friends at several bars in
Asheville. Defendant drove home at 2 a.m., on Emma Road, an
unlighted and curving road. He was driving a van belonging to a
friend. Defendant struck something, and stopped the vehicle,
but was unable to ascertain what the vehicle had struck. There
was a hole in the windshield, the right front headlight was
broken, the antenna bent, the right front signal light was
broken, and the front of the vehicle was dented.
The vehicle had struck Richard Leroy McCoy (McCoy), who was
walking on the edge of the road, hurling him forty feet to a
point twelve feet off of the side of the road. McCoy was found
at 8:30 a.m. on 29 January 2011 by a passerby. The
investigation by the Highway Patrol found debris from the van.
From a part number found on a piece of debris, investigators
were able to identify the type of vehicle involved. A
surveillance video from a nearby convenience store showed a
white van with damage to the right front of the vehicle.
Defendant heard about the accident on the news on 30
January 2011. He contacted the Asheville Police Department, and
turned himself in to the Highway Patrol. Defendant waived his
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Miranda rights, and gave statements that he knew he hit
something, but did not know what it was at the time.
On 2 May 2011, defendant was indicted for felonious hit and
run, and driving while license revoked. Defendant pled guilty
to driving while license revoked, but not guilty to felonious
hit and run. At trial, defendant stipulated that he had struck
McCoy, but that it was an accident, and he lacked knowledge of
who or what he had struck. Defense counsel did not move to
dismiss the hit and run charge at the close of the State’s
evidence, nor at the close of all of the evidence.
The jury found defendant guilty of felonious hit and run.
Defendant was sentenced to an active term of incarceration of
19-23 months, and ordered to pay $20,348.46 in restitution.
On 1 May 2013 this Court granted defendant’s petition for
writ of certiorari.
II. Motion to Dismiss
In his first argument, defendant contends that the State
did not present sufficient evidence of the crime of felonious
hit and run. We dismiss this argument.
A. Standard of Review
“In order to preserve a question for appellate review, a
party must have presented the trial court with a timely request,
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objection or motion, stating the specific grounds for the ruling
sought if the specific grounds are not apparent.” State v.
Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see also
N.C.R. App. P. 10(a)(1).
B. Analysis
Defendant contends that the State did not present
sufficient evidence of felonious hit and run. However,
defendant did not move to dismiss that charge either at the
close of the State’s evidence or at the close of all of the
evidence. The question of the sufficiency of the State’s
evidence is therefore not preserved for appellate review. This
argument is dismissed.
III. Ineffective Assistance of Counsel
In his second argument, defendant contends that he was
denied effective assistance of counsel. We disagree.
A. Standard of Review
“When a defendant attacks his conviction on the basis that
counsel was ineffective, he must show that his counsel's conduct
fell below an objective standard of reasonableness.” State v.
Braswell, 312 N.C. 553, 561–62, 324 S.E.2d 241, 248 (1985). In
order to meet this burden,
First, the defendant must show that
counsel's performance was deficient. This
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requires showing that counsel made errors so
serious that counsel was not functioning as
the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant
must show that the deficient performance
prejudiced the defense. This requires
showing that counsel's errors were so
serious as to deprive the defendant of a
fair trial, a trial whose result is
reliable.
State v. Campbell, 359 N.C. 644, 690, 617 S.E.2d 1, 29
(2005) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80
L.Ed.2d 674, 693 (1984)). “Prejudice is established by showing
that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Both prongs
of this test must be met to prevail on an ineffective assistance
of counsel claim.” Id. at 690, 617 S.E.2d at 29-30 (quotations
and citations omitted).
B. Analysis
Defendant contends that trial counsel’s failure to make a
motion to dismiss at the close of all of the evidence
constituted ineffective assistance of counsel.
Defendant was indicted for a violation of N.C. Gen. Stat. §
20-166(a), which provides:
(a) The driver of any vehicle who knows or
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reasonably should know:
(1) That the vehicle which he or she is
operating is involved in a crash; and
(2) That the crash has resulted in serious
bodily injury, as defined in G.S. 14-32.4,
or death to any person;
shall 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.
N.C. Gen. Stat. § 20-166(a) (2013).
We address defendant’s argument, under the second prong of
the Strickland test, as to whether defendant has shown that
there was a reasonable probability that, but for counsel’s
failure to make a motion to dismiss, the result of the
proceeding would have been different. We hold that defendant
has failed to meet this burden.
Defendant’s argument on appeal is that he repeatedly stated
that he did not know what the van struck. He further argues
that his assertion was “objectively reasonable[.]” This
restricts defendant’s argument as to the element of the charge
pertaining to whether he knew or should reasonably have known
that the vehicle was involved in a collision resulting in
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serious bodily injury to a person. Assuming arguendo that the
issue of the sufficiency of the evidence had been preserved, our
standard of review would be whether the State presented
substantial evidence of defendant’s knowledge of the fact that
the crash resulted in serious bodily injury to a person. See
State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000).
Such evidence can be either direct or circumstantial. See State
v. Miles, ___ N.C. App. ___, ___, 730 S.E.2d 816, 822, disc.
review denied, 366 N.C. 414, 734 S.E.2d 858 (2012) and aff'd,
366 N.C. 503, 750 S.E.2d 833 (2013). To withstand a motion to
dismiss, the evidence, whether direct or circumstantial, must be
“substantial;” that is, it must be “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d
164, 169 (1980). In addition, in considering the evidence upon
a defendant’s motion to dismiss, the trial court is required to
view the evidence in the light most favorable to the State. See
State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994),
cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995). Where
the defendant presents evidence, as was done in the instant
case, “it is not to be considered by the trial court upon
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defendant's motion to dismiss unless favorable to the State.”
State v. Beam, 201 N.C. App. 643, 650, 688 S.E.2d 40, 45 (2010).
Applying these legal principles to all of the evidence
presented, we conclude that there was sufficient evidence for
this case to have been submitted to the jury. Whether
defendant’s assertion that he did not know that the van struck a
person was “objectively reasonable” is not the correct standard
of review. The State can establish the knowledge element of the
offense of felonious hit and run by showing either that
defendant actually knew, or that he reasonably should have
known, that the vehicle which he was operating struck a person.
We hold that the analysis contained in the unpublished
opinion of State v. Wemyss, ___ N.C. App. ___, 722 S.E.2d 14
(unpublished), disc. review denied, 366 N.C. 220, 726 S.E.2d 857
(2012), is persuasive on this point:
Aside from his misplaced reliance upon
Fearing, Defendant's challenge to the
sufficiency of the evidence to support his
conviction rests upon the contention that
(1) Defendant's own testimony concerning the
events surrounding the accident, including
his claim to have been unaware that he had
hit or harmed Mr. Holder, coupled with the
absence of certain specified items of
physical evidence should have precluded a
finding of guilt given the weakness of the
circumstantial evidence presented by the
State and (2) that Mr. Scott's challenge to
the adequacy of the investigation into the
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collision conducted by the investigating
officers completely undermined the State's
case. However, as we have previously noted,
the weight and credibility to be afforded to
the testimony of particular witnesses is a
matter for determination by the jury rather
than a reviewing court. State v. Moses, 350
N.C. 741, 767, 517 S.E.2d 853, 869 (1999),
cert. denied, 528 U.S. 1124, 120 S.Ct. 951,
145 L.Ed.2d 826 (2000). For all of these
reasons, we do not believe that Defendant's
challenge to the sufficiency of the evidence
to support his conviction has merit.
Id.
In the instant case, defendant knew that the van that he
was operating struck something on Emma Road in the early morning
hours of 29 January 2011. This impact caused substantial damage
to the right front of the vehicle. Defendant had been drinking
that night, was driving without a valid license, and had a prior
driving while impaired conviction. Defendant failed to report
the collision to law enforcement, and did not turn himself into
law enforcement until he saw a report on the television news.
McCoy was twelve feet off of the side of the road, where he was
found later that morning.
We hold that the question of whether defendant should
reasonably have known that he struck a person was properly
submitted to the jury. It was for the jury to determine the
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weight and credibility of the evidence submitted by both the
State and defendant.
Given this holding, defendant cannot show prejudice arising
out of his counsel’s failure to move for the dismissal of the
charge at the conclusion of all of the evidence.
This argument is without merit.
DISMISSED IN PART, NO ERROR IN PART.
Judges HUNTER, Robert C., and BRYANT concur.