Herrington v. State, A22A0283

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtMcFadden, Presiding Judge.
Citation364 Ga.App. 186,874 S.E.2d 389
Parties HERRINGTON v. The STATE.
Docket NumberA22A0283
Decision Date08 June 2022

364 Ga.App. 186
874 S.E.2d 389

HERRINGTON
v.
The STATE.

A22A0283

Court of Appeals of Georgia.

June 8, 2022


874 S.E.2d 390

Robert Lawrence Persse, Statesboro, for Appellant.

Charles Keith Higgins, District Attorney, Benjamin E. Gephardt, Assistant District Attorney, for Appellee.

McFadden, Presiding Judge.

364 Ga.App. 186

After a jury trial, Jeffrey Dewayne Herrington was convicted of hit and run and tampering with evidence. On appeal, he argues that the trial court erred in failing to give one of his requested jury

364 Ga.App. 187

charges. But the charge pertained to a statute that does not apply to the circumstances of this case. Herrington also argues that the trial court improperly commented on a disputed fact, but he has not shown that he was harmed by the allegedly improper comment. So we affirm.

1. Facts and procedural history.

Viewed in the light most favorable to the verdict, see Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the trial evidence showed that in the early morning hours of September 16, 2017, a motorist found a dead body, dressed in dark clothing, on the right shoulder of a busy section of highway that had no artificial lighting. Law enforcement officers determined that the victim had been hit by a passing vehicle the previous night and had died as a result of her injuries. No one had previously reported the body. The point of impact could not be determined, and there were no skid marks near the body, so the speed of the vehicle that struck the victim could not be established.

Subsequently, an acquaintance of Herrington notified law enforcement that she had seen a news report about the incident and suspected Herrington might be involved. On the afternoon of September 16, 2017, she had noticed damage to the right side of Herrington's vehicle: a broken front headlight and a

874 S.E.2d 391

dented front fender. She had not seen that damage the day before, and when she asked Herrington about it, Herrington told her he had hit a deer.

Law enforcement officers went to Herrington's residence, where they questioned him and looked at his damaged vehicle, which was parked in his garage. They found external parts from the front of the vehicle on the garage floor. Herrington told the officers that he believed he had hit a deer. He went with them to the police station and, after being given Miranda warnings, see Miranda v. Arizona , 384 U. S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), he gave a statement.

At trial, Herrington testified that on the night of September 15, 2017, he hit something with his vehicle while changing lanes, causing his passenger-side mirror to pop out of place and his right headlight to stop working. He was not sure what he had hit. Herrington pulled to the side of the road and looked in his rearview mirror, but did not see anything. He then turned around and drove back by the scene of the impact but again did not see anything. He did not get out of his vehicle.

Instead, Herrington left the scene and drove to his cousin's house. There, a visibly shaken Herrington told his cousin that he had hit "something" with his vehicle. He, his cousin, and a friend then returned to the area to try to determine what he had hit. Although they drove by the scene of the impact using high beams,

364 Ga.App. 188

they saw nothing. Herrington's friend theorized that he had hit a deer, and Herrington "ran with that [theory]."

The jury found Herrington guilty of hit and run and tampering with evidence. The jury found Herrington not guilty of three other charged offenses: homicide by vehicle in the second degree, failure to exercise due care toward a pedestrian, and driving with a suspended license. The trial court denied Herrington's motion for new trial.

2. Jury charge.

Herrington argues that the trial court erred by refusing to give a jury charge he requested. "To authorize a requested jury instruction, there need only be slight evidence to support the theory of the charge, and the necessary evidence may be presented by the [s]tate, the defendant, or both. Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law." Orr v. State , 312 Ga. 317, 320 (2), 862 S.E.2d 513 (2021) (citations and punctuation omitted). As detailed below, the evidence in this case did not authorize the giving of the charge at issue.

Herrington requested a charge on OCGA § 40-6-274. That statute creates a broad exemption from criminal liability under the hit-and-run statute, OCGA § 40-6-270, and from similar legal duties to stop and report an accident and from liabilities for failure to do so. The exemption obtains if no one is injured, no one other than the driver is involved, and no property other than the driver's is involved. OCGA § 40-6-274 provides:

Any other provision of this article or any other law to the contrary notwithstanding, the driver of any vehicle involved in a traffic accident in which there is no personal injury or in which no second party and no property of a second party is involved shall not have the duty to stop or immediately report such accident, and no such driver shall be prosecuted for his failure to stop or immediately to report such accident. This Code section shall not abrogate or affect a driver's duty to file any written report which may be required by the local law enforcement agency.

The dispositive question on appeal is whether the evidence in this case invoked the statute's exemption from duty and protection against prosecution. This case does not "involve[ ] a traffic accident in which there is no personal injury or in which no second party and no property of a second party is involved[.]" OCGA § 40-6-274. Herrington argues that OCGA § 40-6-274 applies because there is evidence that he did not know he had hit a person. We decline to read a knowledge requirement into OCGA § 40-6-274.

364 Ga.App. 189

"In interpreting statutes, we...

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1 practice notes
  • Smith v. Parks Hotels & Resorts, Inc., A22A0388, A22A0389
    • United States
    • United States Court of Appeals (Georgia)
    • June 8, 2022
    ...discretion in denying his motion to set aside the workers’ compensation award because (a) he could not have induced an error prior to [874 S.E.2d 389 becoming involved in the matter; (b) Hilton cannot seek equitable relief to protect a void settlement agreement it drafted and submitted for ......
1 cases
  • Smith v. Parks Hotels & Resorts, Inc., A22A0388, A22A0389
    • United States
    • United States Court of Appeals (Georgia)
    • June 8, 2022
    ...discretion in denying his motion to set aside the workers’ compensation award because (a) he could not have induced an error prior to [874 S.E.2d 389 becoming involved in the matter; (b) Hilton cannot seek equitable relief to protect a void settlement agreement it drafted and submitted for ......

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