              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-408

                              Filed: 19 December 2017

Mecklenburg County, Nos. 10 CRS 200326–27

STATE OF NORTH CAROLINA

             v.

JONATHAN KEITH MALLOY


      Appeal by defendant from judgment entered 18 October 2016 by Judge

Linwood O. Foust in Mecklenburg County Superior Court. Heard in the Court of

Appeals 3 October 2017.


      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
                                  STATE V. MALLOY

                                  Opinion of the Court



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




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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


       1 A pathologist with the Mecklenburg County medical examiner’s office testified that the
deceased’s blood alcohol concentration at the time of death was almost four times the legal limit.

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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 verdict sheet, but the trial court again overruled

defendant’s objection.

      The jury found defendant guilty of the lesser-included offense of felonious hit

and run resulting in injury. Defendant moved for a directed verdict of not guilty,

renewing his objection to the instruction on felonious hit and run resulting in injury.

Defendant argued that felonious hit and run resulting in injury is not a lesser-

included offense of hit and run resulting in death. The trial court denied the motion,

and thereafter entered judgment and imposed a sentence of eleven to fourteen months

imprisonment for hit and run resulting in injury. The trial court also sentenced

defendant to a consecutive sentence of 120 days on the DWLR charge. Defendant

appeals.

           _________________________________________________________

      On appeal, defendant contends the trial court erred by instructing the jury on

and entering judgment upon conviction for felonious hit and run resulting in injury,

an offense for which defendant was not indicted. Specifically, defendant contends



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that felonious hit and run resulting in injury is not necessarily a lesser-included

offense of hit and run resulting in death. We disagree.

      The elements of felonious hit and run resulting in death are (1) the defendant

was driving a vehicle, (2) that vehicle was involved in a crash, (3) that a person died

as a result of the crash, (4) that the defendant knew, or reasonably should have

known, that the defendant was involved in a crash and that a person had died as a

result of the crash, (5) that the defendant did not stop the vehicle immediately at the

scene of the crash, and (6) that the defendant’s failure to stop was willful; that is,

intentional and without justification or excuse. N.C. Gen. Stat. § 20-166(a) (2015).

      The elements of felonious hit and run resulting in injury are (1) the defendant

was driving a vehicle, (2) the vehicle was involved in a crash, (3) that a person suffered

injury as a result of the crash, (4) that the defendant knew, or reasonably should have

known, that the defendant was involved in a crash and that a person had suffered

injury as a result of the crash, (5) that the defendant did not stop the vehicle

immediately at the scene of the crash, and (6) that the defendant’s failure to stop was

willful; that is, intentional and without justification or excuse. Id. § 20-166(a1).

      The only differences between these two offenses are those italicized above and

that the greater offense is a Class F felony, while the lesser offense is a Class H felony.

Compare id. § 20-166(a), with id. § 20-166(a1). Otherwise, the elements of the two

offenses are exactly the same. See id. § 20-166(a), (a1).



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      Defendant essentially argues that “[d]eath does not necessarily include

injury[,]” and that because our courts have recognized the concept of “instantaneous

death,” see State v. Hudson, 345 N.C. 729, 731, 483 S.E.2d 436, 437 (1997) (involving

a boat collision which “instantly killed” three people); State v. McDonald, 151 N.C.

App. 236, 238, 565 S.E.2d 273, 274 (2002) (involving a motor vehicle collision where

a driver was “instantly killed”), a felonious hit and run could result in death, but not

necessarily in injury.

      While the cases cited by defendant, Hudson and McDonald, found that death

may be and, in those cases was, instantaneous, neither case stands for the proposition

that “injury” is not an element or precursor to death. Indeed, even Black’s Law

Dictionary includes the word “injury” in its definition of “instantaneous death” as

“[d]eath occurring in an instant or within an extremely short time after an injury or

seizure.” Black’s Law Dictionary, “instantaneous death” (10th ed. 2014). Per this

definition, death occurs after “injury,” and “injury” is a component of death.

      In the instant case, the language used by the medical examiner regarding the

cause of death belies the entire premise of defendant’s argument on appeal. The

medical examiner stated the victim’s cause of death was “blunt trauma head injury

due to pedestrian struck by motor vehicle.” (Emphasis added). The victim was

injured as a result of the crash, and his injury resulted in death. Therefore, the




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                                       Opinion of the Court



essential elements of hit and run resulting in death necessarily include the essential

elements of hit and run resulting in injury.2

       Accordingly, the trial court did not err by submitting to the jury and entering

judgment upon conviction for felonious hit and run resulting in injury.

       NO ERROR.

       Judges MURPHY and ARROWOOD concur.




       2  Because we conclude that the elements of felonious hit and run resulting in injury are a
lesser-included offense of felonious hit and run resulting in death, we need not address defendant’s
argument that a fatal variance existed in the indictment, nor whether defendant properly preserved
this issue for review.

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