                                NO. COA14-1

                    NORTH CAROLINA COURT OF APPEALS

                           Filed: 15 July 2014


STATE OF NORTH CAROLINA

    v.                                  Buncombe County
                                        No. 11 CRS 51219
OMARI JIBRI WILLIAMS



    Upon writ of certiorari from judgment entered 15 December

2011 by Judge Richard L. Doughton in Buncombe County Superior

Court.   Heard in the Court of Appeals 22 April 2014.


    Roy Cooper, Attorney General, by Kevin                 G.    Mahoney,
    Assistant Attorney General, for the State.

    Craig M. Cooley for defendant-appellant.


    STEELMAN, Judge.


    Where defendant failed to make a motion to dismiss at the

close of all of the evidence, he waived the right to appeal that

issue.    Where   there   was   substantial   evidence   presented   that

defendant should reasonably have known that the crash resulted

in serious bodily injury to a person, it was for the jury to

determine the weight and credibility of the evidence.           Defendant

failed to show prejudice arising from the failure of his counsel

to make a motion to dismiss at the close of all of the evidence.
                                               -2-
                         I. Factual and Procedural Background

       On the evening of 28 January 2011, Omari Jibri Williams

(defendant) had been drinking with friends at several bars in

Asheville.          Defendant drove home at 2 a.m., on Emma Road, an

unlighted and curving road.                   He was driving a van belonging to a

friend.        Defendant struck something, and stopped the vehicle,

but was unable to ascertain what the vehicle had struck.                              There

was a hole in the windshield, the right front headlight was

broken,       the    antenna       bent,   the      right    front     signal    light   was

broken, and the front of the vehicle was dented.

       The vehicle had struck Richard Leroy McCoy (McCoy), who was

walking on the edge of the road, hurling him forty feet to a

point twelve feet off of the side of the road.                           McCoy was found

at     8:30    a.m.        on     29   January       2011    by   a    passerby.         The

investigation by the Highway Patrol found debris from the van.

From a part number found on a piece of debris, investigators

were    able        to    identify      the     type    of    vehicle     involved.         A

surveillance         video      from   a   nearby      convenience       store    showed    a

white van with damage to the right front of the vehicle.

       Defendant          heard    about      the    accident     on   the   news   on     30

January 2011.            He contacted the Asheville Police Department, and

turned himself in to the Highway Patrol.                          Defendant waived his
                                   -3-
Miranda   rights,   and    gave   statements   that   he   knew   he   hit

something, but did not know what it was at the time.

    On 2 May 2011, defendant was indicted for felonious hit and

run, and driving while license revoked.           Defendant pled guilty

to driving while license revoked, but not guilty to felonious

hit and run.   At trial, defendant stipulated that he had struck

McCoy, but that it was an accident, and he lacked knowledge of

who or what he had struck.          Defense counsel did not move to

dismiss the hit and run charge at the close of the State’s

evidence, nor at the close of all of the evidence.

    The jury found defendant guilty of felonious hit and run.

Defendant was sentenced to an active term of incarceration of

19-23 months, and ordered to pay $20,348.46 in restitution.

    On 1 May 2013 this Court granted defendant’s petition for

writ of certiorari.

                          II. Motion to Dismiss

    In his first argument, defendant contends that the State

did not present sufficient evidence of the crime of felonious

hit and run.   We dismiss this argument.

                          A. Standard of Review

    “In order to preserve a question for appellate review, a

party must have presented the trial court with a timely request,
                                        -4-
objection or motion, stating the specific grounds for the ruling

sought   if    the    specific    grounds       are    not     apparent.”         State    v.

Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see also

N.C.R. App. P. 10(a)(1).

                                  B. Analysis

    Defendant         contends     that     the        State        did    not     present

sufficient      evidence    of    felonious           hit     and    run.         However,

defendant did not move to dismiss that charge either at the

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

evidence.       The    question    of     the    sufficiency          of    the    State’s

evidence is therefore not preserved for appellate review.                               This

argument is dismissed.

                 III. Ineffective Assistance of Counsel

    In   his     second    argument,      defendant          contends      that    he     was

denied effective assistance of counsel.                     We disagree.

                           A. Standard of Review

    “When a defendant attacks his conviction on the basis that

counsel was ineffective, he must show that his counsel's conduct

fell below an objective standard of reasonableness.” State v.

Braswell, 312 N.C. 553, 561–62, 324 S.E.2d 241, 248 (1985).                               In

order to meet this burden,

              First,   the  defendant  must  show                         that
              counsel's performance was deficient.                        This
                                     -5-
            requires showing that counsel made errors so
            serious that counsel was not functioning as
            the “counsel” guaranteed the defendant by
            the Sixth Amendment. Second, the defendant
            must show that the deficient performance
            prejudiced    the    defense.   This    requires
            showing   that    counsel's   errors   were   so
            serious as to deprive the defendant of a
            fair   trial,   a    trial   whose   result   is
            reliable.

       State v. Campbell, 359 N.C. 644, 690, 617 S.E.2d 1, 29

(2005) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80

L.Ed.2d 674, 693 (1984)).        “Prejudice is established by showing

that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been     different.   A   reasonable   probability       is   a   probability

sufficient to undermine confidence in the outcome.                Both prongs

of this test must be met to prevail on an ineffective assistance

of counsel claim.”        Id. at 690, 617 S.E.2d at 29-30 (quotations

and citations omitted).

                                B. Analysis

       Defendant contends that trial counsel’s failure to make a

motion     to   dismiss   at   the   close    of   all   of   the    evidence

constituted ineffective assistance of counsel.

       Defendant was indicted for a violation of N.C. Gen. Stat. §

20-166(a), which provides:

            (a)   The driver of any vehicle who knows or
                                              -6-
              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).

       We address defendant’s argument, under the second prong of

the Strickland            test, as to        whether defendant has shown that

there   was        a    reasonable        probability        that,    but    for     counsel’s

failure       to       make   a   motion     to     dismiss,         the    result    of   the

proceeding would have been different.                          We hold that defendant

has failed to meet this burden.

       Defendant’s argument on appeal is that he repeatedly stated

that he did not know what the van struck.                              He further argues

that    his        assertion        was    “objectively         reasonable[.]”             This

restricts defendant’s argument as to the element of the charge

pertaining to whether he knew or should reasonably have known

that    the    vehicle        was    involved       in   a    collision       resulting     in
                                         -7-
serious bodily injury to a person.                  Assuming arguendo that the

issue of the sufficiency of the evidence had been preserved, our

standard      of    review      would   be     whether   the     State    presented

substantial evidence of defendant’s knowledge of the fact that

the crash resulted in serious bodily injury to a person.                           See

State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000).

Such evidence can be either direct or circumstantial.                     See State

v. Miles, ___ N.C. App. ___, ___, 730 S.E.2d 816, 822, disc.

review denied, 366 N.C. 414, 734 S.E.2d 858 (2012) and aff'd,

366 N.C. 503, 750 S.E.2d 833 (2013).                 To withstand a motion to

dismiss, the evidence, whether direct or circumstantial, must be

“substantial;” that is, it must be “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).           In addition, in considering the evidence upon

a defendant’s motion to dismiss, the trial court is required to

view the evidence in the light most favorable to the State.                        See

State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994),

cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).                           Where

the defendant presents evidence, as was done in the instant

case,   “it    is    not   to   be   considered     by   the    trial    court    upon
                                               -8-
defendant's motion to dismiss unless favorable to the State.”

State v. Beam, 201 N.C. App. 643, 650, 688 S.E.2d 40, 45 (2010).

       Applying       these    legal      principles        to   all   of    the   evidence

presented, we conclude that there was sufficient evidence for

this    case     to    have     been      submitted         to   the   jury.       Whether

defendant’s assertion that he did not know that the van struck a

person was “objectively reasonable” is not the correct standard

of review.       The State can establish the knowledge element of the

offense     of     felonious        hit    and       run    by   showing     either   that

defendant      actually       knew,       or   that    he    reasonably      should   have

known, that the vehicle which he was operating struck a person.

       We   hold      that    the   analysis         contained    in   the     unpublished

opinion of State v. Wemyss, ___ N.C. App. ___, 722 S.E.2d 14

(unpublished), disc. review denied, 366 N.C. 220, 726 S.E.2d 857

(2012), is persuasive on this point:

             Aside from his misplaced reliance upon
             Fearing,   Defendant's  challenge    to  the
             sufficiency of the evidence to support his
             conviction rests upon the contention that
             (1) Defendant's own testimony concerning the
             events surrounding the accident, including
             his claim to have been unaware that he had
             hit or harmed Mr. Holder, coupled with the
             absence   of  certain  specified   items  of
             physical evidence should have precluded a
             finding of guilt given the weakness of the
             circumstantial evidence presented by the
             State and (2) that Mr. Scott's challenge to
             the adequacy of the investigation into the
                                      -9-
            collision conducted by the investigating
            officers completely undermined the State's
            case. However, as we have previously noted,
            the weight and credibility to be afforded to
            the testimony of particular witnesses is a
            matter for determination by the jury rather
            than a reviewing court. State v. Moses, 350
            N.C. 741, 767, 517 S.E.2d 853, 869 (1999),
            cert. denied, 528 U.S. 1124, 120 S.Ct. 951,
            145 L.Ed.2d 826 (2000). For all of these
            reasons, we do not believe that Defendant's
            challenge to the sufficiency of the evidence
            to support his conviction has merit.

Id.

      In the instant case, defendant knew that the van that he

was operating struck something on Emma Road in the early morning

hours of 29 January 2011.         This impact caused substantial damage

to the right front of the vehicle.               Defendant had been drinking

that night, was driving without a valid license, and had a prior

driving while impaired conviction.               Defendant failed to report

the collision to law enforcement, and did not turn himself into

law enforcement until he saw a report on the television news.

McCoy was twelve feet off of the side of the road, where he was

found later that morning.

      We   hold   that   the    question    of    whether   defendant    should

reasonably   have   known      that   he   struck    a   person   was   properly

submitted to the jury.          It was for the jury to determine the
                              -10-
weight and credibility of the evidence submitted by both the

State and defendant.

    Given this holding, defendant cannot show prejudice arising

out of his counsel’s failure to move for the dismissal of the

charge at the conclusion of all of the evidence.

    This argument is without merit.

    DISMISSED IN PART, NO ERROR IN PART.

    Judges HUNTER, Robert C., and BRYANT concur.
