State v. Collins, 221 N.C. App. 604 (Jul. 17, 2012)

There was no fatal defect in an indictment for felony assault on a handicapped person. The indictment alleged, in part, that the defendant unlawfully, willfully, and feloniously assaulted and struck “a handicapped person by throwing Carol Bradley Collins across a room and onto the floor and by striking her with a crutch on the arm. In the course of the assault the defendant used a deadly weapon, a crutch. This act was in violation of North Carolina General Statutes section 14-17.” The court rejected the argument that the indictment was defective for failing to allege the specific nature of the victim’s handicap. The court also rejected the defendant’s argument that the indictment was defective by failing to allege that he knew or reasonably should have known of the victim’s handicap. Citing State v. Thomas, 153 N.C. App. 326 (2002) (assault with a firearm on a law enforcement officer case), the court concluded that although the indictment did not specifically allege this element, its allegation that he “willfully” assaulted a handicapped person indicated that he knew that the victim was handicapped. Finally, the court determined that the indictment was not defective because of failure to cite the statute violated. Although the indictment incorrectly cited G.S. 14-17, the statute on murder, the failure to reference the correct statute was not, by itself, a fatal defect.