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McGee v. State7/29/1991
The opinion of the court was delivered by: LANE, Vice Presiding Judge.
Clarence Donnell McGee, appellant, was tried by jury for the crime of Leaving the Scene of an Accident Involving Personal Injury , After Former Conviction of Two or More Felonies (47 O.S. 1981 ยง 10-102 [47-10-102]) in Oklahoma County District Court, Case No. CRF-87-7052. The jury returned a verdict of guilty and set punishment at twenty (20) years imprisonment. The trial court sentenced accordingly. The appellant raises two propositions of error, improper jury instruction and insufficiency of the evidence. We affirm.
On the evening of November 10, 1987, Charles Shaw and Patty Ash went to Appellant's residence in Oklahoma City to repossess his car. He agreed verbally to the repossession, but when Ash could not get the car started, Appellant started it and sped away. Ash, who had been standing between the open driver's door and the car with one foot in the back seat area, hung on as the appellant drove away. Her hand was caught in the door handle. Appellant drove approximately six miles at a high rate of speed with Ash partially in and partially out of the car. He told her to let go and she wouldn't get hurt. Ash told him she would let go if he would slow down. Finally he pushed her out of the car. The car rolled over her ankle, causing severe damage. As Ash rolled on the pavement, Appellant swerved back toward her and ran completely over her. Appellant then drove away without stopping.
In his first proposition of error, Appellant argues that the trial court improperly instructed the jury regarding the crime. No objection was raised as to this instruction at trial. The failure to object and submit written instructions to the trial court waives any error except that which results in a miscarriage of justice. See Ashinsky v. State, 780 P.2d 201 (Okl.Cr. 1989), Price v. State, 782 P.2d 143 (Okl.Cr. 1989). Our review is then limited to evaluation of whether fundamental error occurred.
Section 10-102 in relevant part defines the crime as follows:
The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of Section 10-104 . . .
Any person willfully, maliciously, or feloniously failing to stop, or to comply with said requirements under such circumstances, shall be guilty of a felony . . .
Section 10-104 specifies the following required actions:
The driver . . . involved in an accident resulting in injury to or death of any person . . . shall give his correct name, address and registration number of the vehicle he is driving, and shall upon request and if available exhibit his operator's or chauffeur's license and his security verification form . . . to the person struck, and shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person.
In its instruction to the jury, the trial court properly set out the requirements of both Section 10-102 and Section 10-104. Appellant's argument that the instruction sets forth three crimes and does not require a unanimous jury verdict on any of them is not supported by the plain language of the instruction
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