{ "id": 8411017, "name": "STATE OF NORTH CAROLINA v. CELESTE MARCHE HINES", "name_abbreviation": "State v. Hines", "decision_date": "2004-09-07", "docket_number": "No. COA03-1334", "first_page": "202", "last_page": "209", "citations": [ { "type": "official", "cite": "166 N.C. App. 202" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "259 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "357", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553358 ], "year": 1979, "pin_cites": [ { "page": "543", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0541-01" ] }, { "cite": "39 L. Ed. 2d 484", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "cite": "415 U.S. 927", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6238753, 6240042, 6239723, 6239088, 6240338, 6240626, 6241173, 6241493, 6239452, 6241821, 6242142, 6240895 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/415/0927-01", "/us/415/0927-05", "/us/415/0927-04", "/us/415/0927-02", "/us/415/0927-06", "/us/415/0927-07", "/us/415/0927-09", "/us/415/0927-10", "/us/415/0927-03", "/us/415/0927-11", "/us/415/0927-12", "/us/415/0927-08" ] }, { "cite": "199 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "454-55" } ], "opinion_index": 0 }, { "cite": "284 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559979 ], "year": 1973, "pin_cites": [ { "page": "93-94" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0087-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-32.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "109" } ], "opinion_index": 0 }, { "cite": "582 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "684", "parenthetical": "alternation in original" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954207 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/159/0103-01" ] }, { "cite": "577 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "687-88" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 80", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185088 ], "year": 2003, "pin_cites": [ { "page": "86-87" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0080-01" ] }, { "cite": "284 U.S. 299", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5719289 ], "weight": 2, "year": 1932, "pin_cites": [ { "page": "304", "parenthetical": "\"the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not\"" }, { "page": "309", "parenthetical": "\"the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not\"" } ], "opinion_index": 0, "case_paths": [ "/us/284/0299-01" ] }, { "cite": "552 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "631" } ], "opinion_index": 0 }, { "cite": "354 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138508 ], "year": 2001, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0076-01" ] }, { "cite": "350 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "357", "parenthetical": "vacating the judgment entered upon the defendant's conviction when the trial court's instructions permitted the jury to convict the defendant on a different theory of rape than was alleged in the indictment" } ], "opinion_index": 0 }, { "cite": "318 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737531 ], "year": 1986, "pin_cites": [ { "page": "631", "parenthetical": "vacating the judgment entered upon the defendant's conviction when the trial court's instructions permitted the jury to convict the defendant on a different theory of rape than was alleged in the indictment" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0624-01" ] }, { "cite": "250 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "105" }, { "page": "105-06" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 319", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551893 ], "year": 1979, "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0319-01" ] }, { "cite": "270 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "413" } ], "opinion_index": 0 }, { "cite": "301 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564503 ], "year": 1980, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0164-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-32.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "(a)" }, { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "594 S.E.2d 64", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "69" } ], "opinion_index": 0 }, { "cite": "139 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "664", "parenthetical": "finding that the appearance of the wound on the victim's scalp permitted the inference that a dangerous weapon was used" } ], "opinion_index": 0 }, { "cite": "263 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569961 ], "year": 1965, "pin_cites": [ { "page": "358", "parenthetical": "finding that the appearance of the wound on the victim's scalp permitted the inference that a dangerous weapon was used" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0353-01" ] }, { "cite": "154 L. Ed. 2d 403", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "537 U.S. 1005", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9287360, 9287586, 9287495, 9287468, 9287538, 9287379, 9287444, 9287671, 9287702, 9287735, 9287641, 9287610, 9287420, 9287514 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/537/1005-01", "/us/537/1005-09", "/us/537/1005-06", "/us/537/1005-05", "/us/537/1005-08", "/us/537/1005-02", "/us/537/1005-04", "/us/537/1005-12", "/us/537/1005-13", "/us/537/1005-14", "/us/537/1005-11", "/us/537/1005-10", "/us/537/1005-03", "/us/537/1005-07" ] }, { "cite": "560 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "782" } ], "opinion_index": 0 }, { "cite": "355 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220055 ], "year": 2002, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0294-01" ] }, { "cite": "571 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "620-21" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 176", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249282 ], "year": 2002, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0176-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "651-52" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "65-66" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] } ], "analysis": { "cardinality": 814, "char_count": 17739, "ocr_confidence": 0.742, "pagerank": { "raw": 1.7510735111802378e-07, "percentile": 0.7085042409808449 }, "sha256": "498d836de530caf705555118bc07afe74ce828393934a78f3912aff6e05a5e6b", "simhash": "1:af2cb022337846f5", "word_count": 2891 }, "last_updated": "2023-07-14T18:02:59.875915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CELESTE MARCHE HINES" ], "opinions": [ { "text": "THORNBURG, Judge.\nCeleste Marche Hines (\u201cdefendant\u201d) appeals her convictions of one count of robbery with a dangerous weapon (01 CRS 55914), one count of aggravated assault on a handicapped person (01 CRS 22179), two counts of obtaining property by false pretenses (02 CRS 12603), one count of financial card theft and one count of financial card fraud (02 CRS 12604). For the reasons stated herein, we vacate the judgment of the trial court on the aggravated assault on a handicapped person charge. We find no prejudicial error in defendant\u2019s remaining convictions.\nThe issues presented on appeal are whether the trial court erred (1) by denying defendant\u2019s motion to dismiss the charge of robbery with a dangerous weapon; (2) by denying defendant\u2019s motion to dismiss the charge of aggravated assault on a handicapped person; (3) in its instructions to the jury on the charge of aggravated assault on a handicapped person; and (4) by not arresting judgment on the charge of aggravated assault on a handicapped person.\nAt trial, the victim, Delores Sampedro (\u201cSampedro\u201d), who is hearing impaired, and defendant offered two versions of the events of 14 June 2001. According to Sampedro\u2019s testimony, on 14 June 2001 she was stopped at a stop sign on her way home from grocery shopping when her car was rear-ended. When she exited her vehicle to see if it was damaged, the driver of the other car, later identified as defendant\u2019s cousin Ronda Singletary (\u201cSingletary\u201d), apologized for the accident and suggested that they move their cars to an adjacent road to avoid blocking traffic. Both parties did so. After moving her car, Sampedro again exited her vehicle. Singletary and defendant, who had been riding as a passenger, also exited their vehicle. Singletary and Sampedro discussed exchanging insurance information and defendant and Singletary returned to their vehicle. Singletary began writing on the back of an envelope. Sampedro then approached defendant\u2019s vehicle to obtain the insurance information, and Singletary asked Sampedro to write down her information. Before giving anything to Sampedro, Singletary suggested that Sampedro make sure her car would start. Sampedro returned to her vehicle, turned the key in the ignition and the engine promptly started. Sampedro then realized that she still had not obtained Singletary\u2019s information, so she checked her side mirror to make sure there were no approaching cars and started to open her car door. Sampedro remembers nothing else until she woke up in the emergency room.\nDr. Christopher Lepak treated Sampedro at Forsyth Memorial Hospital\u2019s emergency room on 14 June 2001 and testified for the State. Dr. Lepak testified that, in his opinion, Sampedro \u201chad received a blunt force trauma to her head\u201d and that this head injury was inconsistent with a fall. He opined that while her broken clavicle and other scrapes may have been the result of a fall, \u201cI can for sure say that the head [injury] was not from a fall.\u201d At the close of the State\u2019s evidence the trial court denied defendant\u2019s motion to dismiss all the charges against her.\nDefendant took the stand and testified that after the accident occurred and the women discussed exchanging insurance information, Sampedro was standing at the passenger side of the car with her pocketbook on her arm. After receiving a signal from Singletary, defendant grabbed Sampedro\u2019s pocketbook and Singletary drove off. Defendant denied striking Sampedro on the head, and testified that she did not see Singletary strike Sampedro with anything either. At the close of defendant\u2019s case, defendant renewed her motion to dismiss all the charges against her, which the trial court denied. The jury returned a guilty verdict on all charges. Defendant was sentenced to a minimum of 96 months and a maximum of 125 months in the custody of the North Carolina Department of Correction for robbery with a dangerous weapon. The sentences for the remaining charges were suspended. Defendant appeals.\nII \u2014 I\nDefendant first contends that the trial court erred by denying her motion to dismiss the' charge of robbery with a dangerous weapon for insufficient evidence. We disagree.\n\u201cWhen a defendant moves for dismissal, the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant\u2019s being the perpetrator of the offense. If so, the motion to dismiss is properly denied.\u201d State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). If a jury could reasonably infer defendant\u2019s guilt when the evidence is viewed in the light most favorable to the State, then the motion must be denied. State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620-21 (2002).\nThe elements of robbery with a dangerous weapon are: \u201c(1) an unlawful taking or an attempt to take personal property from the person or in the presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of the person is endangered or threatened.\u201d State v. Mann, 355 N.C. 294, 303, 560 S.E.2d 776, 782 (2002), cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002). Defendant argues that the State failed to present substantial evidence that a weapon was used in the robbery of Sampedro. However, at trial Dr. Lepak testified that in his opinion Sampedro\u2019s head injury resulted from a blunt force trauma and was inconsistent with a fall. He stated that the abnormal shape and severe swelling present in Sampedro\u2019s head injury \u201csuggested] massive trauma to the head from a blunt force object\u201d possibly \u201ca baton, crowbar, [or] something of that size and length.\u201d This testimony would permit a reasonable jury to infer the existence of a dangerous weapon. See State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 664 (1965) (finding that the appearance of the wound on the victim\u2019s scalp permitted the inference that a dangerous weapon was used). Moreover, in State v. Singletary, - N.C. App. -, 594 S.E.2d 64, 69 (2004), this Court held that the trial court in Singletary\u2019s trial did not err by denying the motion to dismiss this charge based on the same evidence of Sampedro\u2019s injury. Accordingly, we conclude that the motion to dismiss this charge in the instant case was properly denied.\nII\nDefendant next contends that the trial court erred in denying her motion to dismiss the aggravated assault on a handicapped person charge because the State failed to show that the victim was handicapped as defined by N.C. Gen. Stat. \u00a7 14-32.1, the statute which creates this offense. Again, we disagree.\nIn relevant part, N.C. Gen. Stat. \u00a7 14-32.1 provides:\n(a) For purposes of this section, a \u201chandicapped person\u201d is a person who has:\n(1) A physical or mental disability, such as decreased use of arms or legs, blindness, deafness, mental retardation or mental illness; or\n(2) Infirmity which would substantially impair that person\u2019s ability to defend himself.\nN.C. Gen. Stat. \u00a7 14-32.1(a) (2003). Defendant argues that the State failed to show that Sampedro\u2019s hearing problem would have \u201csubstantially impaired\u201d Sampedro\u2019s ability to defend herself.\nViewing the evidence in the light most favorable to the State, as we must, we conclude that sufficient evidence of the victim\u2019s handicap was presented to allow a reasonable jury to find that Sampedro was handicapped for the purposes of the statute at issue. On direct examination, Sampedro testified that she would not be able to hear someone come up behind her unless \u201cthat person was making a lot of noise.\u201d Further, when asked by the District Attorney if being out on the street where the accident occurred would affect her ability to hear, she stated that it would be \u201c[m]ore difficult because there would be environmental noises which would interfere with [her] detecting any person coming up.\u201d Sampedro also testified that she underwent surgery to improve her hearing through the insertion of an implant, but at the time of the incident she had not been \u201cfitted up with the exterior equipment, so it did not help in being able to . . . hear or understand.\u201d Accordingly, we conclude that the State presented substantial evidence that Sampedro is a handicapped person within the meaning of N.C. Gen. Stat. \u00a7 14-32.1. This assignment of error is overruled.\nin\nDefendant next argues that the trial court\u2019s instruction to the jury on the aggravated assault on a handicapped person charge was a material and fatal variance from the indictment. We agree and vacate the judgment for this count.\n\u201cIt is a well-established rule in this jurisdiction that it is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment.\u201d State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980). Further, when a variance exists between the bill of indictment and the jury charge, the Court must inquire whether the variance was prejudicial error, and therefore fatal. State v. Rhyne, 39 N.C. App. 319, 324, 250 S.E.2d 102, 105 (1979). Such an inquiry requires an examination of the purposes of an indictment. Id. The four recognized purposes of an indictment are (1) to identify the crime with which defendant is charged, (2) to protect defendant against being charged twice for the same offense, (3) to provide defendant with a basis on which to prepare a defense, and (4) to guide the court in sentencing. Id. at 324, 250 S.E.2d at 105-06.\nIn the instant case, the State\u2019s indictment for aggravated assault on a handicapped person includes the following language:\n[T]he defendant named above unlawfully, willfully and felo-niously did alone or acting in concert, assault and strike a handicapped person, Delores Victori Sampedro, by having in possession and use of a dangerous weapon to wit: an unknown blunt force object causing trauma to the head of the victim.\nThe trial court instructed the jury as follows:\nFor you to find the defendant guilty of this offense, the State must prove four things beyond a reasonable doubt: First, that the defendant acting by herself or acting together with another person assaulted Delores Sampedro by intentionally striking Ms. Sampedro in the head, or intentionally assaulted Ms. Sampedro by pulling off in the car when part of Ms. Sampedro\u2019s body was in the car or near enough to be hit by the car as it pulled away.\n(Emphasis added). Thus, the instruction given permitted the jury to convict defendant on a criminal negligence theory of assault, a theory not alleged in the indictment.\nWe find that the variance between the indictment and the jury instruction substantially affected defendant\u2019s ability to prepare a defense. The trial court\u2019s instruction allowed the jury to convict defendant on a theory of assault for which defendant had not been indicted. On the stand, defendant admitted grabbing Sampedro\u2019s purse, but denied intentionally striking her with a blunt force object presumably based upon the theory of the crime alleged by the State in the indictment. Allowing the jury to convict defendant on the unin-dicted assault by criminal negligence theory constituted prejudicial and reversible error. For this reason, the judgment entered upon defendant\u2019s conviction for aggravated assault on a handicapped person must be vacated. See State v. Williams, 318 N.C. 624, 631, 350 S.E.2d 353, 357 (1986) (vacating the judgment entered upon the defendant\u2019s conviction when the trial court\u2019s instructions permitted the jury to convict the defendant on a different theory of rape than was alleged in the indictment).\nIV\nDefendant\u2019s remaining argument is that the trial court erred in entering judgment on the charge of aggravated assault on a handicapped person where the relevant statute provides that a defendant is not guilty of this offense if her conduct is covered by another provision of law providing greater punishment. Defendant asserts that in light of this statutory language, punishing defendant\u2019s conduct under both the aggravated assault on a handicapped person and robbery with a dangerous weapon statutes violated the clear intent of our legislature. As this issue could recur on remand, we address it herein. See State v. Lloyd, 354 N.C. 76, 128, 552 S.E.2d 596, 631 (2001).\nIn her appellate brief, defendant concedes that the robbery with a dangerous weapon offense and the aggravated assault on a handicapped person offense each contain an element the other does not, and, thus, are separate offenses for the purposes of a double jeopardy analysis. See Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 309 (1932) (\u201cthe test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not\u201d). However, in North Carolina, the intent of the legislature controls whether an individual may be punished for the same conduct under more than one criminal statute. See State v. Bailey, 157 N.C. App. 80, 86-87, 577 S.E.2d 683, 687-88 (2003). Thus, defendant asserts that the language of the assault on a handicapped person statute shows that our legislature did not intend for an individual to be punished under this statute as well as under another statute allowing for greater punishment. The specific language in the assault on a handicapped person statute allows for punishment \u201c[u]nless [defendant\u2019s] conduct is covered under some other provision of law providing greater punishment _\u201d N.C. Gen. Stat. \u00a7 14-32.1(e) (2003).\nAs support for her argument, defendant cites this Court\u2019s recent holding in State v. Ezell, 159 N.C. App. 103, 582 S.E.2d 679 (2003). In Ezell the Court stated:\nN.C. Gen. Stat. \u00a7 14-32.4 contains specific language indicating that the legislature intended that \u00a7 14-32.4 apply only in the absence of other applicable provisions. Section 14-32.4 indicates that it applies \u201c[ujnless the conduct is covered under some other provision of law providing greater punishment.\u201d\nId. at 109, 582 S.E.2d at 684 (alternation in original). However, in Ezell, the defendant was convicted and sentenced pursuant to N.C. Gen. Stat. \u00a7\u00a7 14-32 and 14-32.4, two assault provisions, whereas the defendant in the instant case was charged with violations of one assault statute and one robbery statute. Accordingly, we distinguish Ezell. Moreover, we note that North Carolina courts have consistently allowed convictions for both robbery with a dangerous weapon and felonious assault. See, e.g., State v. Alexander, 284 N.C. 87, 93-94, 199 S.E.2d 450, 454-55 (1973), cert. denied, 415 U.S. 927, 39 L. Ed. 2d 484 (1974). Thus, we conclude that the statutory language cited by defendant bars punishment under both this provision and another provision of an assault statute. Since we are not called upon to make such an application in the case at bar, defendant\u2019s argument is unavailing. This assignment of error is overruled.\nNo error as to defendant\u2019s convictions in case numbers 01 CRS 55914, 02 CRS 12603 and 02 CRS 12604.\nVacate the judgment for aggravated assault on a handicapped person, case number 01 CRS 22179.\nJudges HUDSON and GEER concur.\n. The intent required for an assault offense \u201cmay be implied from culpable or criminal negligence, if the injury or apprehension thereof is the direct result of intentional acts done under circumstances showing a reckless disregard for the safety of others and a willingness to inflict injury.\u201d State v. Coffey, 43 N.C. App. 541, 543, 259 S.E.2d 356, 357 (1979) (internal citation omitted).", "type": "majority", "author": "THORNBURG, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Joseph E. Herrin, for the State.", "Kathryn L. VandenBerg for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CELESTE MARCHE HINES\nNo. COA03-1334\n(Filed 7 September 2004)\n1. Robbery\u2014 use of a weapon \u2014 sufficiency of evidence\nA motion to dismiss an armed robbery charge for insufficient evidence was correctly denied where defendant argued that the State had not presented substantial evidence that a weapon was used, but a doctor testified that the victim\u2019s head injury was caused by blunt force from an object such as a crowbar or baton and was not consistent with a fall.\n2. Assault\u2014 on a handicapped person \u2014 hearing impairment\nThe denial of a motion to dismiss a charge of aggravated assault on a handicapped person was correct where defendant argued that the State did not show that the victim\u2019s hearing problem substantially impaired her ability to defend herself, but the victim testified that she had difficulty hearing a person approaching from behind. N.C.G.S. \u00a7 14-32.1(a).\n3. Indictment and Information\u2014 indictment and instruction \u2014 fatal variance\nThere was a fatal variance between an indictment for aggravated assault on a handicapped person and the instruction where the instruction permitted the jury to convict on a criminal negligence theory which was not alleged in the indictment. This substantially affected defendant\u2019s ability to prepare a defense.\n4. Assault\u2014 on a handicapped person \u2014 sentencing\nThe trial court did not err by entering judgment on a charge of aggravated assault on a handicapped person where a judgment was also entered on a charge of armed robbery of that person. N.C.G.S. \u00a7 14-32.1(e) (which bars punishment for assaulting a handicapped person when conduct is covered by another statute providing greater punishment) does not apply here.\nAppeal by defendant from judgments entered 23 April 2003 by Judge Melzer A. Morgan, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 10 June 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Joseph E. Herrin, for the State.\nKathryn L. VandenBerg for defendant-appellant." }, "file_name": "0202-01", "first_page_order": 232, "last_page_order": 239 }