                     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,




                                 - 4 -
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.




                                  - 5 -
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



                                 - 6 -
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



                                - 7 -
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.




                                - 8 -
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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