May a Separate Count of Hit and Run Be Charged for Each Person Injured?

A man who drove his sport utility vehicle into a group of cyclists in Cabarrus County in May 2010, injuring six of them, and drove away without stopping was convicted last year of five counts of felony hit and run inflicting injury and one count of misdemeanor hit and run. The Independent Tribune reported that the attorney for defendant Daniel Wilson argued that the prosecution of Wilson on six criminal charges for a single act of leaving the scene constituted double jeopardy. The State disagreed, and the judge submitted all six counts to the jury, which returned verdicts of guilty. The judge reportedly was more receptive to Wilson’s attorney’s arguments regarding multiple punishments for a single crime at the sentencing phase of the proceedings. She sentenced Wilson to probation for one of the felony convictions, requiring, among other conditions, that he serve 40 days in jail as a condition of probation, and arrested judgment on the five other convictions.

Wilson’s argument raises an issue that folks occasionally ask us about: May a driver involved in a single collision resulting in injury to more than one person who leaves the scene be prosecuted for and convicted of a separate crime of hit and run for each person injured?

Framework for analysis. While this precise issue has not been addressed by North Carolina’s appellate courts, our courts have considered a fair number of related issues that provide a framework for the analysis.  The central question is what constitutes the unit of prosecution for the crime of hit and run under G.S. 20-166. Is the unit defined by the act of crashing and leaving the scene or is it instead defined by the number of persons injured? If the former, then a defendant may be convicted of only one count of violating G.S. 20-166 based upon a single crash; if the latter, then the defendant may be convicted of a separate count for each person injured. My view is that the former view is the better one, though, again, our appellate courts have not interpreted the unit of prosecution under G.S. 20-166.

Unit of prosecution. The legislature has discretion to define the allowable unit of prosecution, subject to constitutional limitations.  See State v. Smith, 323 N.C. 439 (1988). When, however, the General Assembly has failed to define the precise unit with clarity, the court must determine the allowable unit and must resolve any ambiguity in favor of lenity. See id.; State v. White, 127 N.C. App. 565 (1997).  Put another way, “‘the presumption is against multiple punishments in the absence of a contrary legislative intent .’” State v. Garris, 191 N.C. App. 276, 284 (2008) (quoting State v. Boykin, 78 N.C. App. 572 (1985) and holding that simultaneous possession of two firearms suffices to support only a single conviction for possession of a firearm by a convicted felon rather than multiple convictions). Thus, our courts have determined that: (1) the offense of kidnapping is a single continuing offense, lasting from the time of the initial unlawful confinement, restraint or removal until the victim regains his or her free will, see White, 127 N.C. App. at 571; (2) a defendant may not be convicted on separate counts for each firearm simultaneously stolen or possessed, see State v. Surrett, 719 S.E.2d 120, 127 (N.C. App. 2011); State v. Boykin, 78 N.C. App. 572, 575-76; and (3) a single sale of multiple pornographic magazines cannot yield multiple convictions for disseminating obscenity, see State v. Smith, 323 N.C. at 444.  In contrast, the court of appeals has determined that the possession of multiple images of child pornography can support multiple convictions.  State v. Howell, 169 N.C. App. 58, 62-63 (1988).  Significantly, the Howell court noted that the statute under which the defendant was convicted, G.S. 14-190.17A(a), criminalized possession of material containing a visual representation.  The court noted that while courts in other states had concluded that the term “any” was ambiguous and did not support multiple charges, it found no jurisdictions construing use of the singular “a” as ambiguous. Id. at 62.

G.S. 20-166(a)(2) refers to serious bodily injury or death to “any” person. G.S. 20-166(a1)(2) refers to a crash that results in “injury.” It certainly is arguable that neither provision clearly defines the precise unit of prosecution.

Other courts. Courts in other jurisdictions have construed the proper unit of prosecution under applicable hit and run statutes as the number of accident scenes fled, not the number of accident victims. See Com. v. Constantino, 822 N.E.2d 1185, 1188 (Mass. 2005) (characterizing proscribed act as “scene related, not victim related” and concluding that defendant could not properly be convicted of and sentenced for two violations based on two deaths resulting from a single accident after which there was a single failure to stop); Dake v. State, 675 So.2d 1365, 1366-67 (Ala. Crim. App. 1995) (holding double jeopardy prohibits multiple convictions for violations of statute requiring driver of vehicle involved in accident where someone is injured or killed to stop, provide identifying information, and render reasonable assistance to any person injured in accident).

No clear rule. Notwithstanding my view, the court of appeals in State v. Cash, __ N.C. App. ___, S.E.2d ___ (May 20, 2014) (unpublished), recently affirmed a defendant’s conviction for two counts of hit and run causing injury based on the defendant leaving the scene of a single crash.  The defendant did not argue on appeal that multiple convictions based on a single act of leaving were improper, however, so the court did not analyze the issue.

Anecdotal reports indicate that charging practices when the defendant leaves the scene of an accident in which more than one person is injured vary by district. See, e.g., State v. Mumford, 364 N.C. 394 (2010) (defendant charged with and convicted of single count of misdemeanor hit and run for leaving the scene after the vehicle he was driving struck and injured five pedestrians); Ron Gallagher, Wake deputy: Suspect in I-40 fatal hit-and-run asked if he had hit someone, News & Observer (February 27, 2014) (reporting that man charged with killing two men by hitting him with his car and driving away was charged with a single count of hit and run along with other charges).