in the Court of Appeals 5 April 2017.
by defendant from judgment entered 29 January 2015 by Judge
Phyllis M. Gorham in New Hanover County Superior Court. No.
13 CRS 55758; 13 CRS 7020.
Attorney General Joshua H. Stein, by Assistant Attorney
General Anne Goco Kirby, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Michele A. Goldman, for defendant-appellant.
Scaturro, Jr. ("Defendant") appeals from his
convictions for felony hit and run and attaining habitual
felon status. He was indicted for failing to remain at the
scene of the crash in which he was involved. On appeal, he
contends that the trial court erred by denying his motion to
dismiss the felony hit and run charge on the grounds that the
record did not contain sufficient evidence to show that he
willfully and unlawfully failed to remain at the scene and,
in the alternative, that his trial counsel provided him with
constitutionally deficient representation by failing to
preserve that error for appellate review. If the Court finds
no error on that basis, Defendant instead argues he was
denied his right to a unanimous jury verdict because the
trial court's instructions permitted the jury to convict
Defendant on the basis of either failure to remain or failure
to return. Finally, in the alternative to his first two
assignments of error, Defendant maintains that the trial
court committed plain error by failing to instruct on an
essential element of the offense - that a "willful"
failure to remain or return is one "without
justification or excuse." After careful consideration of
Defendant's challenges to the trial court's judgments
in light of the record and applicable law, we conclude that
the trial court's judgments should be overturned.
July 2013, Christopher Jamie Eric Fisher ("Fisher")
left home on his bicycle to go to his friend's house. As
he rode up Gordon Road and approached the Farrington Farms
Road intersection, he noticed a truck waiting to turn onto
Gordon Road from Farrington Farm Road. Rather than continuing
straight on his route up Gordon Road and thereby crossing in
front of the truck, Jamie turned right onto Farrington Farm
Road, planning to make a U-turn around a median to get back
onto Gordon Road, so as to allow the truck a clear path. As
he made the U-turn, Defendant struck Fisher with his car. As
a result, Fisher was thrown from his bicycle and the left
side of his head, shoulder, and elbow hit the pavement as he
skidded across the road. The fall nearly severed Fisher's
left ear from his head, and he was left profusely bleeding.
Defendant got out of his car and told Fisher, "You
pulled out in front of me." Then, Defendant retrieved a
rag from his car and gave it to Fisher to hold against his
called 911, but as the emergency operator began speaking to
him, Defendant told Fisher that he would take him to the
hospital. Fisher decided to go with Defendant, and he
reported that Defendant drove "like a maniac to get
[him] to the hospital." Although at trial Fisher
testified that Defendant refused to provide his name during
the drive to the hospital, Fisher, in an earlier, statement
said that Defendant did provide his name. Upon exiting his
vehicle at Cape Fear Hospital, Fisher made note of
Defendant's license plate number before Defendant drove
checking into the emergency room, Fisher was transferred to
New Hanover Hospital where he underwent surgery to remove his
torn ear. He has had to return to the hospital several times
for additional surgeries as well.
4:45 p.m., Trooper Michael A. Kirk ("Trooper Kirk")
of the North Carolina Highway Patrol was dispatched to the
accident scene and arrived just as the fire department was
clearing it. At the time, Fisher's bicycle was still
lying in the yard just off the roadway. Defendant did not
return to the accident scene during the 30 to 45 minutes
Trooper Kirk remained to wait for a wrecker and mark
pertinent evidence. Moreover, Trooper Kirk did not receive
any calls informing him that Defendant attempted to contact
him, the highway patrol, or any other police agency during
his investigation of the scene.
completing his initial on-scene investigation, Trooper Kirk
went to the Cape Fear Hospital upon receiving information
from the New Hanover County Sheriff's Department that a
possible collision victim was being treated there. While at
the hospital, Trooper Kirk spoke with Fisher and his mother.
Fisher reported being hit by a car with Defendant's
license plate number. Trooper Kirk contacted another trooper
and asked him to respond to the address to which the vehicle
bearing that license plate number was registered. After
spending approximately 10 minutes at the hospital, Trooper
Kirk returned to the accident scene for another 30 to 45
minutes in order to complete his investigation. Once again,
Defendant did not return to the scene during that period, and
the trooper sent to his address was unable to locate him
July 2013 Trooper Kirk located Defendant and confronted him
about the accident. Defendant readily admitted to being
involved, and Trooper Kirk arrested him. After being read his
Miranda rights, Defendant initially stated he was
willing to speak with law enforcement; however, upon placing
two phone calls, he refused to discuss the accident further.
September 2013, Defendant was indicted for one count of
felony hit and run resulting in serious bodily injury in
violation of N.C. G.S. § 20-166(a). Specifically, the
indictment charged that Defendant "unlawfully,
willfully, and feloniously did fail to remain at the
scene" in which he was involved until law enforcement
completed its investigation and authorized him to leave. He
was also indicted for having attained habitual felon status.
Beginning on 28 January 2015, a jury trial was held in New
Hanover County Superior Court before the Honorable Phyllis
Gorham. Defendant moved to dismiss the charge of felony
failure hit and run at the close of the State's evidence
and at the close of all of the evidence, arguing that the
State had not met its burden beyond a reasonable doubt and
that "there is no jury question as a matter of
law." The trial court denied Defendant's motions.
trial court instructed the jury that in order to find
Defendant guilty of the offense, the State must prove six
things beyond a reasonable doubt:
First, that the defendant was driving a vehicle.
Second, that the vehicle was involved in a crash.
Third, that a person suffered serious bodily injury in this
crash. Serious bodily injury is bodily injury that creates or
causes serious permanent disfigurement or permanent or
protracted loss or impairment ...