No. COA 03-1334 TWENTY-FIRST DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA)

)

v.)From Forsyth County

)

CELESTE MARCHE HINES)Nos.01 CRS 55914

)01 CRS 22179

)02 CRS 12603-04

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DEFENDANT-APPELLANT’S BRIEF

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INDEX

TABLE OF CASES AND AUTHORITIES ...... ii

QUESTIONS PRESENTED ...... 1

STATEMENT OF THE CASE ...... 2

STATEMENT OF THE FACTS ...... 3

ARGUMENT:

I.THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGE OF ROBBERY WITH A DANGEROUS WEAPON, AS THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SHOW

USE OF A WEAPON...... 10

II.THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGE OF AGGRAVATED ASSAULT ON A HANDICAPPED PERSON, AS THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF

LAW TO SHOW THE VICTIM WAS HANDICAPPED AS DEFINED UNDER

THE STATUTE...... 15

III.THE TRIAL COURT ERRED IN INSTRUCTING THE JURY UPON THE CHARGE OF AGGRAVATED ASSAULT ON A HANDICAPPED PERSON THAT

IT COULD CONSIDER WHETHER DEFENDANT INTENTIONALLY ASSAULTED OR WAS CRIMINALLY NEGLIGENT IN INJURING THE VICTIM BY DRIVING AWAY IN THE CAR, WHERE THE INDICTMENT ALLEGES ONLY THE INTENTIONAL CONDUCT OF USING A BLUNT FORCE OBJECT UPON THE VICTIM’S HEAD...... 21

IV.THE TRIAL COURT ERRED IN ENTERING JUDGMENT ON THE CHARGE OF AGGRAVATED ASSAULT ON A HANDICAPPED PERSON, WHERE THE STATUTE PROVIDES A DEFENDANT IS NOT GUILTY OF THIS OFFENSE IF HER CONDUCT IS COVERED BY ANOTHER PROVISION OF LAW PROVIDING GREATER PUNISHMENT...... 25

CONCLUSION ...... 29

CERTIFICATE OF SERVICE ...... 30

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TABLE OF CASES AND AUTHORITIES

CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000)...... 22

Blockburger v. United States, 284 U.S. 299 (1932)...... 26

Correll v. Division of Social Services, 332 N.C. 141, 418 S.E.2d 232 (1992) 16, 17

Jackson v. Virginia, 443 U.S. 307 (1979)...... 10, 15

North Carolina v. Pearce, 395 U.S. 711 (1969)...... 25

State v. Arnold, 285 N.C. 751, 208 S.E.2d 646 (1974)...... 23

State v. Bailey, 157 N.C. App. 80, 577 S.E.2d 683 (2003)...... 26

State v. Barlowe, 337 N.C. 371, 446 S.E.2d 352 (1994)...... 24

State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562 (1989).....23

State v. Ezell, ___ N.C. App. ___, 582 S.E.2d 679 (2003)...... 28

State v. Faulkner, 5 N.C. App. 113, 168 S.E.2d 9 (1969)...... 11

State v. Fernandez, 346 N.C. 1, 484 S.E.2d 350 (1997)...... 26

State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986)...... 24

State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986)...... 27

State v. Glidden, 317 N.C. 557, 346 S.E.2d 470 (1986)...... 17

State v. Greene, 67 N.C. App. 703, 314 S.E.2d 262 (1984) . . .11, 13, 14

State v. Handy, 331 N.C. 515, 419 S.E.2d 545 (1992)...... 19

State v. Hardy, 298 N.C. 191, 257 S.E.2d 426 (1979)...... 22

State v. Jarman, 140 N.C. App. 198, 535 S.E.2d 875 (2000).....17

State v. Jones, 23 N.C. App. 686, 209 S.E.2d 508 (1974)...... 23

State v. Jordan, 227 N.C. 579, 42 S.E.2d 674 (1947)...... 17

State v. Mann, 355 N.C. 294, 560 S.E.2d 776 (2002)...... 11

State v. Reid, 151 N.C. App. 379, 565 S.E.2d 747 (2002)11, 14, 16

State v. Rhyne, 39 N.C. App. 319, 250 S.E.2d 102 (1979). . 22, 23

State v. Robinson, 355 N.C. 320, 561 S.E.2d 245 (2002) . . 11,16

State v. Rowland, 263 N.C. 353, 139 S.E.2d 661 (1965)...... 14

State v. Tew, 326 N.C. 732, 392 S.E.2d 603 (1990)...... 17

State v. Williams, 318 N.C. 624, 350 S.E.2d 353 (1986)...... 22

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STATUTES

N.C. Gen. Stat. § 14-32...... 28

N.C. Gen. Stat. § 14-32.1...... 16, 20, 25, 28

N.C. Gen. Stat. § 14-32.4...... 28

N.C. Gen. Stat. § 15A-1340.16(d)(11)...... 19

N.C. Gen. Stat. § 15A-1340.4(a)(1)(j)...... 19

No. COA 03-1334 TWENTY-FIRST DISTRICT

NORTH CAROLINA COURT OF APPEALS

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

STATE OF NORTH CAROLINA)

)

v.)From Forsyth County

)

CELESTE MARCHE HINES)Nos.01 CRS 55914

)01 CRS 22179

)02 CRS 12603-04

QUESTIONS PRESENTED

I.DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGE OF ROBBERY WITH A DANGEROUS WEAPON, AS THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SHOW

USE OF A WEAPON?

II.DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGE OF AGGRAVATED ASSAULT ON A HANDICAPPED PERSON, AS THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF

LAW TO SHOW THE VICTIM WAS HANDICAPPED AS DEFINED UNDER

THE STATUTE?

III.DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY UPON THE CHARGE OF AGGRAVATED ASSAULT ON A HANDICAPPED PERSON THAT

IV.DID THE TRIAL COURT ERR IN ENTERING JUDGMENT ON THE CHARGE OF AGGRAVATED ASSAULT ON A HANDICAPPED PERSON, WHERE THE STATUTE PROVIDES A DEFENDANT IS NOT GUILTY OF THIS OFFENSE IF HER CONDUCT IS COVERED BY ANOTHER PROVISION OF LAW PROVIDING GREATER PUNISHMENT?

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STATEMENT OF THE CASE

On July 16, 2001, Defendant was indicted on charges of robbery with a dangerous weapon and aggravated assault on a handicapped person. On May 13, 2002, Defendant was indicted on charges of two counts of obtaining property by false pretenses and financial transaction card theft and fraud.

The proceedings below were held in the General Court of Justice, Superior Court Division, Forsyth County, North Carolina, before the Honorable Melzer A. Morgan, Jr., at the April 21, 2003 Criminal Session, on the above charges joined for trial.

On April 23, 2003, a jury found Defendant guilty of all charges. Judge Morgan then sentenced Defendant to 96-125 months for armed robbery, a suspended sentence of 21-26 months for aggravated assault on a handicapped person, and a suspended sentence of 10-12 months for the remaining charges, all to run consecutively.

Defendant filed a written notice of appeal on April 29, 2003.

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STATEMENT OF THE FACTS

STATE’S EVIDENCE

Brian L. Jacobson testified he is an officer with the Winston-Salem Police Department and was dispatched to Burke Mill Road and London Lane on June 14, 2001. He arrived at 8:26pm and saw Ms. Sampedro being attended by EMS and fire personnel. He briefly spoke to Ms. Sampedro, who was very confused. (Tpp 31-36)

Delores Sampedro testified she has sensory nerve hearing loss in both ears. This is a progressive condition which began in childhood. After college she began using a hearing aid. She received a Cochlear implant in May 2001, about a month before this incident, which has further improved her hearing. (Tpp 39-41, 70)

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On June 14, 2001 at approximately 7:00pm, Ms. Sampedro was driving home from grocery shopping. She was stopped at the intersection of London Lane and Burke Mill Road when a car rear-ended her. She got out of the car to examine the damage. The driver of the other car suggested they pull around the corner onto Burke Mill Road, which they did. Then the driver and passenger of the other car, both women, got out to look at the car. The driver said she would write down her insurance information and both women returned to the car. The damage was only a small dent. Ms. Sampedro walked to the passenger side of the other car. She wrote her name on a piece of envelope and handed it in the window. She then went back to her car to be sure it would start, and it did. Ms. Sampedro opened her car door to get out again, and checked the mirror to be sure there were no cars coming. After that, she does not remember anything until waking up in the emergency room. (Tpp 41-46)

She was treated with a sling for a cracked clavicle. The doctors said she had a concussion, and she had a CT scan. She stayed overnight at the hospital, then moved to rehabilitation because she had trouble walking, and stayed there another week.

Walking remained difficult and painful for about a month. (Tpp 46-49)

Ms. Sampedro’s purse was missing when she woke up. When her purse was returned, her wallet, checkbook, driver’s license and credit card were missing. (Tpp 49-53)

Ms. Sampedro had no trouble talking to and communicating with the two women in the other car. (Tpp 60-61)

Ms. Sampedro was 65 years old at the time of this incident, and weighed approximately 90 pounds. She had a hip problem with arthritis and often used a walking stick at that time. (Tpp 70-71)

Dr. Chris LePak testified he is an emergency room physician. In June 2001, he was a resident at Forsyth Memorial Hospital in Winston-Salem, and had been licensed approximately three years. (Tpp 72-78)

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On June 14, 2001, Dr. LePak saw Ms. Sampedro in the Forsyth Memorial emergency room. She was conscious but confused. They took x-rays and found she had a broken collarbone on the right side. Dr. LePak also found an area of swelling on the right side of her scalp, measuring about 10 centimeters by 5 centimeters, and raised about one to two inches. He diagnosed her with a concussion due to her confused state. (Tpp 80-83)

Ms. Sampedro was not able to communicate much and did not give any real medical history or details. She said she worked as a librarian, had been to the grocery store, and she felt like she had been hit in the head with a bat. Dr. LePak felt she had received a blunt force trauma to her head, caused possibly by a baton, a crowbar, or something of similar size and length. The rest of her injuries, including the broken collarbone and multiple abrasions on her right arm and leg, were consistent with a fall. (Tpp 82-86)

Ms. Sampedro had a CT scan of the head which showed no broken bones in the skull and no hemorrhaging inside her brain. There was external hemorrhaging outside of her skull, known as a hematoma, which was the large swollen area on the right side of her head where blood had collected. There was an abrasion on the outside of her scalp but no cut that required stitches. Dr. LePak felt this injury could not have been caused by a fall. (Tpp 94-101)

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Dr. LePak was told by the ambulance drivers that Ms. Sampedro was found lying in the road next to her car, disoriented. (Tp 107)

Dennell Julius testified he is employed at Wal-Mart as a security guard. On June 14, 2001, he was approached by a Winston-Salem police detective regarding a credit card, and he checked back through store receipts. He found two receipts from his Wal-Mart store matching the credit card number police provided. The first receipt was made at the jewelry counter at 8:38pm on June 14, 2001; the second was made at a register at the front of the store at 8:54pm on June 14, 2001. (Tp 122-128)

Mr. Julius also maintains the security camera videotapes at Wal-Mart. In June 2001, he provided two videotapes to Winston-Salem police, which he believed showed people matching the descriptions police gave him. (Tpp 129-135)

The first videotape shows the two women entering and exiting the Wal-Mart store. The tape shows that the two women separated shortly after entering the store, and that they walked out of the store together at 8:56pm. The tapes do not record either of the women making purchases at either of the registers where the receipts were made. (Tpp 157-165)

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Russ Barbee testified he is a detective with the Winston-Salem Police Department. Based upon information from other officers, he went to Defendant’s house on June 21, 2001. Defendant at first did not identify herself, but then gave her correct name and voluntarily went to the police department for an interview. Earlier that day, Detective Barbee located Rhonda Singletary, the second woman involved in this case. She was at a pawn shop with another woman. (Tpp 166-171)

D.L. Rose testified he is a detective with the Winston-Salem Police Department and worked on this case in June 2001. He interviewed Defendant after viewing the Wal-Mart videotapes. (Tpp 172-174)

During his investigation, Detective Rose retrieved and distributed still photographs from a videotape taken at the Super K-Mart showing co-defendant Rhonda Singletary and another woman in Rhonda Singletary’s car. That car was recognized by an officer the next day at a pawn shop, and Ms. Singletary was located there. The Super K-Mart offense also involved Ms. Sampedro’s credit card. It occurred a couple of days after the Wal-Mart incident.

Property was seized from Ms. Singletary’s residence. None was seized from Defendant’s residence. (Tpp 174-186)

Delores Sampedro testified further that the hearing aid she wore in June 2001 was different that the one she had on in the courtroom. It did not allow her to hear noise behind her unless it was quite loud. Being on the street also makes it more difficult to hear, due to environmental noise. (Tpp 189-191)

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In June 2001, Ms. Sampedro had recently undergone the Cochlear implant surgery, but had not yet been fitted with new equipment so that her hearing was not yet improved. She was able to speak to and understand the women in the car accident. (Tpp 191-194)

DEFENDANT’S EVIDENCE

Celeste Hines testified she is from Bladenboro, North Carolina and moved to Winston-Salem in June 1999. In June 2001, Ms. Hines was employed at the Little Red School House as a lead teacher in day care, and attended Forsyth Tech. Rhonda Singletary is her cousin. On June 14, 2001, Ms. Singletary dropped off her children at the daycare in the morning and picked them up that afternoon. Ms. Hines left with Ms. Singletary to go shopping. (Tpp 209-211)

Ms. Singletary was driving her car up London Lane and hit Ms. Sampedro’s car from behind. Ms. Singletary motioned for Ms. Sampedro to pull off the road. The two of them had a conversation about the accident. Ms. Hines got out of the car briefly to look at the damage, then got back in the car. After a short while, Ms. Singletary came back to the car, and Ms. Sampedro then came to the passenger window. Ms. Singletary wrote down some information to give to Ms. Sampedro. (Tpp 211-214)

Ms. Sampedro was standing on a grassy embankment above the curb. She was bent forward leaning in at the passenger door where Ms. Hines was sitting. Her purse was on her right forearm. Ms. Singletary signaled for Ms. Hines to grab the purse, and Ms. Hines did so. Ms. Singletary then pulled off with the car. Ms. Hines did not see Ms. Sampedro fall. (Tpp 216-219)

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Ms. Singletary had told Ms. Hines she would give a signal to grab the purse. They did not discuss this before the accident. She did not notice anything physically wrong with Ms. Sampedro, but did notice her speech was slurred. Ms. Hines did not strike Ms. Sampedro on the head with anything, nor did Ms. Singletary. Neither of them had a weapon. (Tpp 220-221)

As Ms. Singletary drove away from the scene of the accident, she told Ms. Hines that Ms. Sampedro was laying in the street. Ms. Singletary said that Ms. Sampedro was all right. Ms. Hines did not look for herself. She did not learn that Ms. Sampedro was injured until told so by the police. (Tpp 219, 242, 252)

After pulling away, Ms. Singletary drove to the Wal-Mart. En route, Ms. Hines looked through Ms. Sampedro’s purse and retrieved the paper Ms. Singletary had given her with insurance information, because that information was not valid. Ms. Hines did not take the purse in the Wal-Mart store. She did not handle the purse or its contents after that.

The two women entered the Wal-Mart together, split up for a time, and left together. Ms. Hines observed Ms. Singletary use Ms. Sampedro’s credit card to make one purchase at the register near the front of the store. She did not see Ms. Singletary make any purchases at the jewelry counter. Ms. Singletary kept the items she purchased. After they left the Wal-Mart, Ms. Singletary dropped Ms. Hines off at home. (Tpp 221-224, 236-37)

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Ms. Hines next heard about the incident when police came to her door. At first she was scared and did not give her name, but eventually told them who she was. She agreed to go to the police station for an interview. She told them the same information just testified to, and also gave a written statement. (Tpp 225-229)

Ms. Hines has prior convictions for misdemeanor larceny in 1999, and common law robbery and misdemeanor larceny in April 2002. (Tp 237)

ARGUMENT

I.THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGE OF ROBBERY WITH A DANGEROUS WEAPON, AS THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SHOW USE OF A WEAPON.

Assignment of Error 1 (Rp 65)

The evidence for the offense of armed robbery in this case was insufficient to show the element that Defendant used a dangerous weapon. The trial court erred in failing to dismiss the charge of robbery with a dangerous weapon, and that conviction must be vacated. The Due Process Clause of the United States Constitution requires the State to prove each essential element of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979). A conviction must be reversed unless any rational trier of fact could have found all of the essential elements beyond a reasonable doubt. Id. at 319.

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In ruling upon a motion to dismiss, the trial court must determine if the State has presented substantial evidence of each essential element of the offense. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255 (2002). "'Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion.'" Id. at 336, 561 S.E.2d at 255 (citation omitted). In considering the motion, the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence, and resolving any contradictions in favor of the State. Id. at 336, 561 S.E.2d at 256.

State v. Reid, 151 N.C. App. 379, 382, 565 S.E.2d 747, 750 (2002).

The elements of robbery with a dangerous weapon are: (1) the unlawful attempt to take or taking of personal property from a person or presence, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of the person is threatened or endangered. State v. Mann, 355 N.C. 294, 303, 560 S.E.2d 776, 782 (2002) (citations omitted). Actual possession and use or threatened use of firearms or other dangerous weapons are necessary to constitute the offense of robbery with firearms or other dangerous weapons. State v. Greene, 67 N.C. App. 703, 314 S.E.2d 262 (1984) (citing State v. Faulkner, 5 N.C. App. 113, 168 S.E.2d 9 (1969)).

In this case, there was insufficient evidence that a weapon was used. The victim did not remember how she was injured, nor did she remember seeing any weapon. No witness saw a weapon. No weapon was found at the scene or in the possession of Defendant or her codefendant.

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Defendant testified that there was no weapon used and that no one hit the victim in the head. Instead, Defendant testified that, as the victim was standing on the curb and leaning in the passenger window of the car, she snatched the purse from the victim’s arm and her co-defendant drove the car away. She further testified that her co-defendant said the victim was lying in the street after they pulled away. A reasonable inference from these facts is that the victim’s head injury occurred when she fell as the car pulled away, and hit her head on the curb or some other object on the ground.

The only evidence supporting the State’s claim that a weapon was used came from the emergency room physician who testified that he felt the wound on the victim’s head was consistent with being struck by a blunt object and was not consistent with a fall. The physician had three years of emergency room experience at the time he treated the victim.