in the Court of Appeals 3 October 2017.
by defendant from judgment entered 18 October 2016 by Judge
Linwood O. Foust in Mecklenburg County Nos. 10 CRS 200326-27
Attorney General Joshua H. Stein, by Assistant Attorney
General John P. Barkley, for the State.
Adelle Jones for defendant-appellant.
the essential elements of hit and run resulting in death
necessarily include the essential elements of hit and run
resulting in injury, the trial court did not err by
submitting to the jury and entering judgment upon conviction
for felonious hit and run resulting in injury.
January 2010, defendant Jonathan Keith Malloy called his
girlfriend, Sandra Hoover, to let her know that his friends
were "hanging out" at their shared home on
Lakecrest Drive. When Hoover arrived home around 4:00 p.m.,
she found defendant and his friends "sitting on the
couch and having a good time . . . drinking and
smoking." Defendant went to Hoover and asked her to take
his friends home around 6:00 p.m., but Hoover refused, even
though she could smell the alcohol on defendant's breath
and his eyes were red and glassy, "like he had been
drinking." Defendant then took the keys to Hoover's
gray 1990 Volvo and got in the driver's seat. Hoover also
got in the car with defendant and his friends.
was driving and turned onto North Tryon Street. Hoover, who
was sitting in the back seat, heard "like a bump, like a
thump, " and Hoover said "John, you hit
somebody." Defendant replied, "no, I didn't,
" and Hoover responded, "yes, you did."
did not stop immediately but continued driving until he
reached a gas station a few minutes later. There, they
discovered the windshield had been cracked and the right
headlight was out. Defendant drove to another gas station,
where Hoover told defendant's friends to get out of the
car. She and defendant drove back to their home, got into a
different car with Hoover driving, and went to "see what
were unable to return to the precise location where they
heard the bump, because there were police officers and police
cars blocking the street. As a result, Hoover stopped at a
gas station and defendant went inside to find out what had
happened. When he returned, he told Hoover that
"somebody had got hit, someone was dead out there."
Police had found a deceased person on Tryon
and defendant went home around 8:00 p.m., and Hoover told
defendant that if she saw "it" on the 11:00 news,
she would call the police. Defendant told her not to call
" 'cause he could fix the car." Defendant then
took a nap before being picked up to go to work at 10:30 that
evening. After seeing coverage of "it" on the news
at 11:00, Hoover called police.
the early morning hours of 2 January 2010, Officer Jonathan
Wally with the Charlotte-Mecklenburg Police Department
responded to Hoover's 911 call. He met Hoover, and Hoover
told him she had seen her car on television, which had been
identified as being involved in a hit and run on Tryon
Street. Hoover told the officer that defendant had been
driving down North Tryon Street when she "felt, heard a
bump." She then took him outside to show him the Volvo.
Officer Wally seized the Volvo, and it was taken to a crime
scene vehicle bay. Hoover and defendant both gave statements
to police that day.
April 2010, defendant was indicted for felonious hit and run
resulting in death and for driving while license revoked
("DWLR"). Defendant pled guilty to the charge of
DWLR on 10 October 2016 and stipulated that he had been
driving at the time of the offense. The case was tried on the
remaining charges at the 10 October 2016 Session of Superior
Court for Mecklenburg County, the Honorable Linwood O. Foust,
trial, the State requested that the jury be instructed on the
offense of felonious hit and run resulting in injury.
Defendant objected to this instruction, but the trial court
overruled defendant's objection. Defendant also objected
to including the lesser-included offense on the ...