James E. Hutson v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia
JAMES E. HUTSON
MEMORANDUM OPINION * BY
v. Record No. 0541-96-1 JUDGE ROSEMARIE ANNUNZIATA
MAY 13, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Jerome B. Friedman, Judge
Andrew G. Wiggin (Office of the Public
Defender, on brief), for appellant.
Kimberley A. Whittle, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Following a jury trial, appellant, James E. Hutson, was
convicted of leaving the scene of an accident involving personal
injury in violation of Code §§ 46.2-894 and 46.2-900. 1 He
contends that the evidence is insufficient to support his
conviction and that the trial court erred in refusing certain of
his proffered jury instructions. For the reasons which follow,
we affirm.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Appellant was also charged with malicious wounding. The
jury was unable to agree on a verdict on malicious wounding, and
the court granted a mistrial with respect to that charge. In
their briefs, the parties represent that appellant subsequently
entered an Alford plea to a reduced charge of misdemeanor
assault.
I.
On the night in question, appellant and his girlfriend,
Jennifer Hughes, began to argue while visiting a friend. The two
left in Hughes' car and continued to argue as appellant drove.
The dispute escalated and, in frustration, appellant stopped the
car, removed the keys, and threw them off an overpass, into a
ditch. Appellant left the car to find the keys. By the time he
returned after finding the keys, Hughes had left. Some friends
picked Hughes up from a gas station, and the group returned to
the home of Laurel Russo. Appellant drove Hughes' car to Russo's
home, presuming Hughes would go there. Hughes, Russo, Gary
Riley, Gwen Hart, and "Bo" Ferko were at the home Russo shared
with Riley. Riley answered appellant's knock but told him Hughes
was not there. Appellant returned to his home and, upon finding
no sign of Hughes, returned again to Russo's home to inquire
about Hughes.
Concerning the events that followed, the Commonwealth's
witnesses, Hughes, Russo, and Hart, testified as follows. When
appellant returned to Russo's home, he was agitated. The group
asked appellant to leave, but he persisted in his request to see
Hughes. When denied, appellant began to leave. At that point,
Hughes asked that appellant leave the keys to her car and walk
home. Others in the group asked appellant to leave the keys, but
appellant ignored them, walking across the yard and into the
street toward Hughes' car. No one in the group threatened or
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assaulted appellant, but as he continued toward the car, Hart
screamed at him to leave the keys. Appellant walked quickly
across the street; Hart followed, alone. When appellant entered
the car and attempted to start it, Hart reached in the open
driver's side window to remove the keys from the ignition.
Appellant started the car, put it in gear and accelerated. The
car moved forward with Hart leaning half-way in the window, her
lower half hanging out. Appellant accelerated as Hart screamed
for him to stop. After driving twenty to thirty feet, appellant
cornered the car. Hart fell out as the car rounded the turn.
In his defense, appellant testified to the events subsequent
to his return to Russo's home as follows. After appellant
knocked on the door, Riley immediately appeared and pushed
appellant to the ground. Appellant picked himself up as Riley
screamed at him to leave. At that point, the rest of the group
left the house, and all began screaming at appellant. Appellant
became frightened as the group began using vulgar, threatening
language. The group continuously shoved appellant across the
yard, off the property. Appellant turned and ran toward the car.
The entire group chased him. After appellant entered the car,
at least three of the individuals chasing him attempted to enter
while continuing to threaten appellant. Intending to flee the
scene, appellant started to drive away. Everyone but Hart let
go. While holding on to the window sill, Hart ran alongside the
car, demanding that appellant stop. After appellant rounded the
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corner, Hart was gone. Appellant did not see her fall.
Appellant was then asked what he would have done if he had seen
Hart fall. Appellant responded,
The point is I didn't know she was hurt; but
if she was, I still don't know if I would
have stopped. It would have been a hard
decision to make at the spur of the moment.
I've got six people chasing me down. Now, if
she's hurt, what's going to happen to me if I
do stop? I don't know if I would have. I
don't know. It's hard to say.
There is no dispute that Hart was injured as a result of the
incident. She temporarily lost consciousness and was treated for
a head wound requiring sutures, for a puncture wound to the knee
through to the bone, and for multiple cuts and abrasions to her
face, hands, feet, and legs. There is also no dispute that
appellant left the scene and made no report of the incident.
II. SUFFICIENCY OF THE EVIDENCE
Code § 46.2-894 provides, in part:
The driver of any vehicle involved in an
accident in which a person is . . . injured
. . . shall immediately stop . . . and
report his name, address, driver's license
number, and vehicle registration number
forthwith . . . . The driver shall also
render reasonable assistance to any person
injured . . . .
"The purpose of [the statute] is to prevent motorists involved in
accidents from evading . . . liability by leaving the scene of an
accident and to require drivers involved in an accident to
provide identification information and render assistance to
injured parties." Smith v. Commonwealth, 8 Va. App. 109, 115,
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379 S.E.2d 374, 377 (1989).
Appellant first challenges the sufficiency of the evidence,
alleging that the trial court erred in refusing to grant his
motion to strike.
Where the sufficiency of the evidence is
challenged on appeal, that evidence must be
construed in the light most favorable to the
Commonwealth, giving it all reasonable
inferences fairly deducible therefrom. In so
doing, we must discard the evidence of the
accused in conflict with that of the
Commonwealth, and regard as true all the
credible evidence favorable to the
Commonwealth and all fair inferences that may
be drawn therefrom.
Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165
(1988) (citations omitted). The jury's verdict will not be set
aside unless it appears that it is plainly wrong or without
evidence to support it. Code § 8.01-680; Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
The specific issue here is whether there is sufficient
evidence to support the jury's finding beyond a reasonable doubt
that appellant maintained the knowledge requisite for a hit and
2
run conviction. To establish the knowledge element of the
offense, "the Commonwealth must prove that the defendant
possessed actual knowledge of the occurrence of the accident, and
such knowledge of injury which would be attributed to a
reasonable person under the circumstances of the case." Kil v.
2
There is no dispute that the incident in question was an
accident within the meaning of the statute. See Smith, 8 Va.
App. at 113-15, 379 S.E.2d at 376-77.
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Commonwealth, 12 Va. App. 802, 811, 407 S.E.2d 674, 679 (1991).
This approach has been characterized as "`requiring subjective
knowledge of the [accident] while holding the driver to a
stricter reasonable [person] standard as to the fact or extent of
the injury.'" Id. at 810, 407 S.E.2d at 679 (quoting
Commonwealth v. Kauffman, 323 Pa. Super. 363, 368, 470 A.2d 634,
637 (1983)); see also Herchenbach v. Commonwealth, 185 Va. 217,
38 S.E.2d 328 (1946).
In the present case, we find the evidence sufficient to
support the jury's verdict. The evidence established that
appellant drove away with Hart's body dangling half-way out the
car's driver side window. As appellant drove, Hart screamed for
him to stop the car. Instead of stopping, appellant continued,
until Hart was thrown free of the car as appellant rounded a
turn. Appellant acknowledged his awareness that Hart's presence
near the car ceased upon his making the turn. The jury was
entitled to discredit appellant's contrary, and wholly
contradicted, account of the incident. Moreover, appellant's
testimony that Hart merely ran alongside the car with her hand on
the window sill is incredible in light of the injuries Hart
sustained. Finally, we are unpersuaded by appellant's
unsupported argument that the nature of Hart's injuries render
her account of the incident incredible as a matter of law. In
sum, the evidence belies appellant's assertion that he was
unaware of the occurrence of an accident. The same evidence is
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sufficient to support a finding beyond a reasonable doubt that a
reasonable person would have believed an injury to Hart would
have "flowed" from the accident. See Herchenbach, 185 Va. at
220, 38 S.E.2d at 329.
III. JURY INSTRUCTIONS
Appellant contends that the jury should have been instructed
on the defenses of self-defense and duress and, as well, that "if
you find that the defendant reasonably feared bodily injury to
himself, then the law does not impose a duty on the defendant to
return to the scene of the injury."
"A reviewing court's responsibility in reviewing jury
instructions is `to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 707, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,
503, 290 S.E.2d 856, 858 (1982)). "A defendant is entitled to
have the jury instructed only on those theories of the case that
are supported by evidence. The evidence to support an
instruction `must be more than a scintilla.'" Frye v.
Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986).
"[F]or purposes of resolving the issue of the trial court's jury
instruction, we are concerned with [appellant's] version of the
events surrounding the crime[] and not a determination of its
truthfulness." Daung Sam v. Commonwealth, 13 Va. App. 312, 322,
411 S.E.2d 832, 837 (1991). However, "[a] jury instruction, even
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though correctly stating the law, should not be given if it is
not applicable to the facts in evidence." Bolyard v.
Commonwealth, 11 Va. App. 274, 277, 397 S.E.2d 894, 896 (1990).
We find no error in the trial court's decision to refuse
appellant's proffered instructions. First, self-defense
addresses the use of force by an accused to defend against a
threatened harm. See Diffendal v. Commonwealth, 8 Va. App. 417,
421, 382 S.E.2d 24, 25-26 (1989). By definition, appellant's act
of omission in not stopping after the accident to identify
himself and render assistance involved no use of force. The
record contains no evidence to support a theory of self-defense,
3
and the trial court properly refused the proffered instruction.
Second,
[t]he common law defense of duress excuses
acts which would otherwise constitute a
crime, where the defendant shows that the
acts were the product of threats inducing a
reasonable fear of immediate death or serious
bodily injury. If the defendant failed to
take advantage of a reasonable opportunity to
escape or of a reasonable opportunity to
avoid doing the acts without being harmed, he
may not rely on duress as a defense.
Pancoast v. Commonwealth, 2 Va. App. 28, 33, 340 S.E.2d 833, 836
(1986). 4 Even assuming that appellant acted under duress in
3
We do not address the applicability of a self-defense
instruction vis-a-vis the malicious wounding charge. That issue
is not properly before this Court. The jury was undecided on the
charge of malicious wounding, and the record contains no final
order with respect to that charge.
4
Contrary to the Commonwealth's assertion, the issue of a
duress instruction was clearly before the trial court.
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failing to return to the scene, the record shows that appellant
had a reasonable opportunity to report the accident following his
getaway and thereby abide, at least in part, with the purpose of
the statute, without being harmed. Because appellant failed in
that opportunity, the defense of duress is inapplicable to the
facts in evidence. Moreover, the defense of duress presupposes a
cognitive decision to commit a criminal act in the face of
threats of unavoidable harm. There is no evidence that appellant
made such a decision in the present case. Appellant's
hypothetical testimony, that it would have been difficult to
decide to return to the scene had he known of the accident, did
not warrant the instruction.
Finally, appellant offers no authority, and we find none, to
support the proposition for which he proffered his remaining
instruction. The instruction appears to be a generic amalgam of
justification and excuse principles for which there is no support
in the law.
The decision of the trial court is accordingly affirmed.
Affirmed.
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