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State v. Malloy

Court of Appeals of North Carolina

December 19, 2017

STATE OF NORTH CAROLINA
v.
JONATHAN KEITH MALLOY

          Heard in the Court of Appeals 3 October 2017.

         Appeal by defendant from judgment entered 18 October 2016 by Judge Linwood O. Foust in Mecklenburg County Nos. 10 CRS 200326-27 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General John P. Barkley, for the State.

          Meghan Adelle Jones for defendant-appellant.

          BRYANT, Judge.

         Where 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.

         On 1 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.

         Defendant 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."

         Defendant 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 happened."

         They 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 Street.[1]

         Hoover 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.

         During 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.

         On 12 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, Judge presiding.

         At 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 ...


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