An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA13-493
                        NORTH CAROLINA COURT OF APPEALS

                             Filed:    21 January 2014


STATE OF NORTH CAROLINA


      v.                                      Wake County
                                              No. 11 CRS 214643
MARCUS XAIVER BRIDGES



      Appeal by the State from order entered 21 August 2012 by

Judge Carl R. Fox in Wake County Superior Court.                    Heard in the

Court of Appeals 23 October 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Kathryne E. Hathcock, for the State.

      Geeta Kapur and The Law Offices of James D. Williams, Jr.,
      by James D. Williams, Jr., for defendant-appellee.


      CALABRIA, Judge.


      The State of North Carolina appeals from the trial court’s

order setting aside a jury verdict finding Marcus Xaiver Bridges

(“defendant”) guilty of felony hit and run resulting in serious

injury     or   death   (“felony    hit   and    run”)   and    dismissing     that

charge.     We affirm.
                                      -2-
       On 25 June 2011, defendant was driving his mother’s Pontiac

Vibe    (“the    Vibe”)   eastbound    on   Interstate   40    (“I-40”)   in

Raleigh, North Carolina at approximately 65 miles per hour.               He

approached Exit 301, at which point I-40 divides into two right

lanes continuing as I-40 East and two left lanes exiting onto I-

440 West.       Defendant, who was unfamiliar with the area, was in

one of the left lanes.

       Initially, defendant believed he was supposed to continue

on I-40 and veered sharply into one of the right lanes in order

to do so.       When he veered, the Vibe entered the lane already

occupied by a Chevrolet Malibu (“the Malibu”).                The Vibe came

within close proximity of the Malibu, but the vehicles never

physically touched.        Defendant then determined that he actually

wanted to exit to I-440, and he quickly changed lanes to the

left.    Meanwhile, the driver of the Malibu lost control of her

vehicle in an attempt to avoid defendant.            She swerved to the

right and struck a tree.        Seventeen-year-old Morgan McKenzie, a

passenger in the Malibu, died as a result of the crash.

       Law enforcement officers investigating the crash were able

to link the Vibe with defendant.            Lieutenant Kyle Wescoe (“Lt.

Wescoe”) of the Raleigh Police Department (“RPD”) then went to

defendant’s home.         Defendant identified himself to Lt. Wescoe
                                         -3-
and admitted that he had recently driven to the Triangle Town

Center mall in Raleigh.             Lt. Wescoe informed defendant that he

was   investigating     an    automobile        accident.    Defendant         complied

with Lt. Wescoe’s request to come to the RPD for an interview

regarding the accident.

      At the station, defendant was interviewed by RPD Officer

Jamie   Rigsbee   (“Officer         Rigsbee”).          Defendant       told    Officer

Rigsbee that he was attempting to travel to Crabtree Valley Mall

via I-40 when he approached the I-40/I-440 split at Exit 301 and

became confused as to which road to take.                    Defendant admitted

that he went from an I-440 lane to an I-40 lane and then back.

Defendant   denied    seeing        another     vehicle     in    the    I-40        lane.

Officer Rigsbee informed defendant that a fatal car crash had

occurred as a result of his driving, and defendant became very

upset and started crying.

      Defendant   was        indicted     for     felony    hit     and        run    and

misdemeanor death by motor vehicle.                Beginning 13 August 2012,

defendant was tried by a jury in Wake County Superior Court.                           At

the close of the State’s evidence and at the close of all the

evidence,   defendant        made    a   motion    to    dismiss    both       charges.

These motions were denied by the trial court.
                                        -4-
      On   20    August   2012,   the    jury    returned     verdicts   finding

defendant guilty of both charges.              After the verdicts, defendant

renewed his motion to dismiss, and on 21 August 2012, the trial

court entered an order setting aside the jury’s verdict and

dismissing the felony hit and run charge.               The misdemeanor death

by vehicle conviction remained undisturbed.                The State appeals.

       The State’s sole argument on appeal is                   that the trial

court erred by granting defendant’s motion to dismiss the charge

of felony hit and run.       We disagree.

      “‘Upon defendant’s motion for dismissal, the question for

the Court is whether there is substantial evidence (1) of each

essential element of the offense charged, or of a lesser offense

included therein, and (2) of defendant’s being the perpetrator

of such offense. If so, the motion is properly denied.’” State

v.    Fritsch,     351    N.C.    373,        378,   526    S.E.2d   451,      455

(2000)(quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914,

918 (1993)).      “Substantial evidence is 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).       “This Court reviews the trial court’s denial of a

motion to dismiss de novo.” State v. Smith, 186 N.C. App. 57,

62, 650 S.E.2d 29, 33 (2007).
                                  -5-
    Pursuant to N.C. Gen. Stat. § 20-166(a),

           The driver of any vehicle         who   knows     or
           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).         In the instant case, the

trial court held that the State failed to provide substantial

evidence   of   defendant’s   knowledge   that   (1)   his   vehicle   was

involved in a crash and (2) the crash resulted in serious bodily

injury or death:

           Here there’s no evidence that there was any
           collision between the vehicles. There’s no
           evidence that the defendant knew anybody --
           that an accident occurred, and there’s
           absolutely no evidence that the defendant
           knew that death or physical injury had
           occurred[.]   .  .   .    Consistently, the
           defendant in this case has denied being --
           any knowledge of being involved in an
           accident.   There’s    nothing    from  the
                                  -6-
           circumstances which would lead the Court to
           believe there is any evidence that he knew
           or reasonably should have known that this
           was -- that he was involved in an accident,
           in the evidence or actual, and that’s
           specifically why this statute exists, so
           that the Court doesn't allow a jury verdict
           to stand where there's no evidence to
           support it. There’s just no evidence to
           support that either of these -- either of
           these elements of this offense, and the
           Court allows the motion to set aside the
           jury’s verdict as to the felony hit and run
           charge, . . . that motion is granted and set
           aside . . . .

      The State concedes that there was no evidence presented at

trial that defendant     had   actual knowledge of the        crash, but

contends that the evidence presented at trial was sufficient for

a jury to conclude that defendant reasonably should have known

that he caused an accident and that the accident resulted in

serious injury or death.       In support of its contention that it

met its evidentiary burden as to these elements at trial, the

State cites two unpublished cases from this Court.           In State v.

Barbour, this Court held that the State presented sufficient

evidence that the defendant should have known that the victim

was injured when he struck her vehicle, which was traveling at

55 miles per hour, and sent it spinning on the highway.               ___

N.C. App. ___, 735 S.E.2d 452, 2012 N.C. App. LEXIS 1320, 2012

WL   5859668   (2012)(unpublished).     In   State   v.   Williams,   this
                                            -7-
Court    held     that    the    evidence      presented      did    not    support      an

instruction on the lesser included offense of misdemeanor hit

and run because the defendant reasonably should have known that

the victim was injured in the accident.                      ___ N.C. App. ___, 716

S.E.2d      90,   2011      N.C.     App.     LEXIS     1940,       2011    WL    3891983

(2011)(unpublished)(Finding                 that      the      following         evidence

demonstrated      that     the     defendant       reasonably      should   have       known

that the victim was injured: (1) defendant’s vehicle, which was

traveling at 55 miles per hour, rear ended the victim’s vehicle,

which was traveling at 45 miles per hour; (2) both vehicles went

off   the    road    and    into     a   ditch,      with    the    victim’s     vehicle

striking a tree; (3) both vehicles suffered extensive damage;

(4) the victim saw the defendant leave the scene with a third

person;     and     (5)    the     defendant       himself    was    injured      in    the

accident.).

      However, Barbour and Williams are both distinguishable from

this case because they both involved actual physical contact

between the defendant’s vehicle and the victim’s vehicle.                              While

contact is not required by our statutes in order for an accident

to have occurred, see N.C. Gen. Stat. § 20-4.01(4b) (2013)(A

“crash” is defined as “[a]ny event that results in injury or

property damage attributable directly to the motion of a motor
                                               -8-
vehicle or its load. The terms collision, accident, and crash

and their cognates are synonymous.”), the contact provides a

substantial basis to conclude that a defendant reasonably should

have   known      about    an    accident.           Since     there       was      no   contact

between     the    Vibe    and    the     Malibu       in     the    instant        case,   the

evidence presented by the State at trial must have provided some

alternative basis through which defendant would reasonably have

been made aware of the accident.                       Additionally, this evidence

would have to demonstrate that defendant was particularly aware

of the severity of the accident such that he reasonably should

have known that it resulted in a severe injury or death.                                     See

N.C. Gen. Stat. § 20-166(a).

       In its brief, the State relies upon eyewitness testimony to

try    to   establish      that        there    was    substantial            evidence      that

defendant reasonably should have known about the crash of the

Malibu      and   its     severity.            The    State    cites          testimony     from

multiple     individuals        who     witnessed      the     crash       while     traveling

several hundred feet behind it and from an individual in front

of    the   crash    who     witnessed         the    accident        in      his    side-view

mirrors.          However,       these     witnesses          were       at    substantially

different      locations        from    defendant       such        that      the   crash    was

directly      within      their        respective       lines       of     sight.          Their
                                          -9-
testimony      does     not     provide        any     information          about     what

defendant’s vantage point from I-440 would have been at the time

of the crash.         The evidence at trial was that I-440, on which

defendant     was    traveling,        immediately      curved     away     from     I-40,

where the crash ultimately occurred, after Exit 301.                                 Thus,

witnesses who had either not reached Exit 301 at the time of the

crash or who were still traveling on I-40 after that exit could

not     provide     substantial        evidence      that     defendant      reasonably

should have seen the crash from his location at the time that it

occurred.

       Finally,       the     State     contends       that      defendant          should

reasonably have heard the crash based upon the testimony of RPD

Officer    John     Michael    Walls,     III     (“Officer      Walls”).       Officer

Walls testified that he “heard what [he] thought was a faint

sound    of   a   vehicle      crash”    while       stopped    in   traffic        on   an

overpass      approximately      one-eighth       of    a   mile     from    Exit    301.

However, just as the eyewitness crash testimony did not provide

evidence of what defendant reasonably could have seen from his

location, the fact that Officer Walls could faintly hear a crash

from    his   precise       location    does    not    shed    any    light    on    what

defendant reasonably could have heard from his location at the

time of the crash.             Thus, Officer Walls’s testimony does not
                                 -10-
provide substantial evidence that defendant reasonably should

have known that he was involved in a crash.

    Ultimately, the State did not present substantial evidence

that defendant reasonably should have known that he was involved

in an accident which resulted in a serious injury or death.

There was no evidence that defendant could have reasonably felt,

seen, heard, or otherwise been made aware of either the crash or

its severity based upon his location when the crash occurred.

Accordingly,   the   trial   court   properly   set   aside   the   jury’s

verdict and dismissed the felony hit and run charge.           The trial

court’s order is affirmed.



    Affirmed.

    Judges HUNTER, Robert C. and HUNTER, Jr., Robert N. concur.

    Report per Rule 30(e).
