Author’s Note: This post has been modified from its original based on the reissuance of the opinion on April 16, 2025.
Earlier last month, the Court of Appeals decided State v. Watlington, COA23-1106, ___ N.C. App. ___ (2025). Among other issues, in its decision the Court addressed an open question: what is the unit of prosecution for a hit and run? May the defendant be charged once for leaving the scene of a crash that causes injury, or instead may a separate charge be issued for each person injured? (Shea Denning wrote about that issue and the framework for analysis in 2014, noting then that the question had not been directly addressed by our appellate courts). We now have an answer: the unit of prosecution is the number of crashes from which the defendant fled, not the number of people injured. Read on for further details.
Background. Units of prosecution can be explained as the number of counts or charges that come from a single course of conduct. For example, the unit of prosecution for possession of a firearm by a convicted felon is the continuous act of possession, not each firearm possessed. So, a person who during one time and at one location, possessed multiple firearms while being a convicted felon may only be convicted of one count of possession of firearm by a convicted felon. State v. Wiggins, 210 N.C. App. 128 (2011). In contrast, the unit of prosecution for possession of child pornography is each image possessed. See State v. Howell, 169 N.C. App. 58 (2005) (defendant was properly convicted of forty-three counts of sexual exploitation of a minor for possession of photos on a single hard drive). For more on units of prosecution, see this bulletin written by my colleague Brittany Bromell.
Who decides. In 1955, the U.S. Supreme Court ruled that the unit of prosecution for a criminal course of conduct is within the discretion of the legislature. Bell v. United States, 349 U.S. 81 (1955). Citing Bell, the N.C. Supreme Court held “[W]hen the legislature does not clearly express legislative intent, the court must determine the allowable unit of prosecution. In doing so, any ambiguity should be resolved in favor of lenity.” State v. Smith, 323 N.C. 439, 441 (1988). Sometimes, as in the case with G.S. 20-166, the legislature does not explicitly define the unit of prosecution for each criminal offense, and the courts must engage in statutory construction to reach an answer. In examining the statutory language, resolving ambiguity in favor of lenity means “the presumption is against multiple punishments in the absence of a contrary legislative intent.” State v. Garris, 191 N.C. App. 276 (2008).
State v. Watlington. Meranda Watlington was indicted for one count of first-degree murder, five counts of attempted first-degree murder, four counts of assault with a deadly weapon with intent to kill inflicting serious injury, six counts of felonious hit and run resulting in serious bodily injury or death, one count of driving while license revoked, and on count of failure to reduce speed. The evidence at trial showed that on the morning of October 12, 2019, Watlington was in the passenger seat of a Ford Explorer driven by her co-defendant, Fana Felton, with two other individuals in the back seat. Felton drove to a gas station in Greensboro, where Shanna Goode was parked at one of the gas pumps. Felton hit the side of Goode’s car as she passed the gas pumps. An argument ensued outside the cars (beside Goode’s car and behind the Explorer). The argument escalated, attracting others from the gas station, and soon there were about ten people in the immediate area. The argument turned physical and multiple fights broke out, reportedly lasting for more than twenty-five minutes.
With the fighting ongoing, Watlington got into the driver’s seat of the Explorer and reversed into the crowd behind her. After taking approximately ten seconds to run over the individuals behind the Explorer, Watlington stopped a few feet away and shifted the vehicle into drive. She then drove forward toward the same group, running into and over the crowd again. As emergency vehicles began to arrive at the scene, Felton got into the passenger seat, and Watlington drove out of the parking lot. One person was pronounced dead at the scene, four people were hospitalized with serious injuries, and one person sustained minor injuries. At trial, Watlington was convicted of one count of first-degree murder under the felony murder rule, four counts of assault with a deadly weapon inflicting serious injury, one count of assault with a deadly weapon, four counts of felonious hit and run resulting in serious bodily injury, and one count of misdemeanor hit and run (Felton was convicted of accessory after the fact to all eleven of Watlington’s convictions). Watlington appealed, arguing in part that the trial court erred by permitting her to be convicted of multiple counts of hit and run based on the number the people injured, rather than her conduct of leaving the scene of a crash.
Analysis. The Court began by examining G.S. 20-166 to see if it clearly established a unit of prosecution noting that subsection (a) refers to a crash that results in seriously bodily injury or death to “any person,” and subsection (a1) refers to a crash that results in “injury.” The Court relied on previous examinations of similar language to find that these terms were ambiguous and did not clearly establish a unit of prosecution. See State v. Smith, 323 N.C. 439 (1988) (concluding that a statute making it unlawful to disseminate “any obscene writing, picture, record…” was ambiguous), State v. Conley, 374 N.C. 209 (2020) (concluding that a statute making it unlawful to possess “any gun, rifle, pistol, or other firearm” on educational property was ambiguous). As a result, the Court applied the rule of lenity and held that the unit of prosecution under G.S. 20-166 is the number of crashes from which the defendant fled, and not the number of persons injured.
Application. Watlington was convicted of four counts of felonious hit and run resulting in serious bodily injury or death and one count of misdemeanor hit and run corresponding with each person injured or killed. The Court found that these injuries occurred over the course of two crashes: first, when Watlington reversed into and over the crowd, and second, when Watlington drove forward over the same group. By determining that the unit of prosecution is the number of crashes, the Court found that Watlington could be convicted of only two violations of G.S. 20-166 rather than five: once for the first crash driving forward over the group, and again for the second crash after stopping and backing up over the same group. As a result, the Court arrested judgment on three of Watlington’s hit and run convictions and remanded for resentencing.
Looking forward. What is a crash? G.S. 20-4.01(4c) defines crash as “[a]ny event that results in injury or property damage attributable directly to the motion of a motor vehicle or its load. The terms collision, accident, and crash and their cognates are synonymous.” Just last year, the Court of Appeals interpreted “crash” to include both unintentional and intentional acts based on the definition including “any event.” State v. Buck, 293 N.C. App. 671 (2024). While the opinion in Watlington does not give a detailed explanation as to how it determined there were two crashes, context clues from the recitation of the facts provide some guidance. The Court noted that after Watlington reversed over the crowd, she came “to a complete stop,” during which some of the people injured were able to begin moving and attempting to stand. “[E]ight seconds after” the first crash, Watlington put the Explorer in drive and ran into the group again. In this case, the events were separated by both a measurable time span and a change in direction.
While the Court found these factors sufficient to identify two crashes, it did not address how much—or how little—is required for there to be separate crashes. The analysis courts have applied in the assault context for determining whether there is one continuing assault or multiple assaults may provide guidance—there must be a “distinct interruption.” State v. Dew, 379 N.C. 64 (2021) (“distinct interruption” permitting more than one assault charge includes but is not limited to: a lapse in time, intervening event, interruption in momentum of attack, change in location, or some other clear break delineating the end of one assault and the beginning of another). Under that framework, it may take even less than eight seconds and changing directions for there to be separate crashes. In the context of vehicle crashes, distinct interruptions could include factors like lapses in time, whether the vehicle stops and starts again, changes in direction, or changes in driver input to the pedals or steering wheel.
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