Appeal by defendant from judgment dated 15 March 2000 by Judge
Jesse B. Caldwell, III in Mecklenburg County Superior Court. Heard
in the Court of Appeals 9 October 2001.
Attorney General Roy Cooper, by Assistant Attorney General
Sueanna P. Sumpter, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Julie Ramseur Lewis, for defendant-appellant.
GREENE, Judge.
Israel Campos Garcia (Defendant) appeals a judgment dated 15
March 2000 entered consistent with a jury verdict finding him
guilty of simple assault.
On 13 February 1998, a Mecklenburg County Magistrate issued a
warrant for Defendant's arrest finding there was probable cause
that on 12 February 1998, Defendant “did unlawfully, and willfully
assault Lori Rupp [(Rupp)] by means of jumping from the bushes and
chasing the victim causing her to deviate from her normal
activities” in violation of N.C. Gen. Stat. § 14-33(a).
Prior to trial, Defendant made a motion to dismiss the warrant
against him arguing there was no indication in the arrest warrant
on what theory of assault the State intended to proceed,specifically the warrant failed to allege “harmful or offensive
touching . . . [or] a reasonable apprehension of immediate bodily
harm.” The State contended the warrant alleged an assault by “show
of violence” and alleged facts supporting elements that Rupp was
“scared of immediate bodily harm or unwilful [sic] contact . . .
[and Defendant's] actions caused her to deviate from her normal
activities.” The trial court denied Defendant's motion.
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The dispositive issue is whether an arrest warrant for simple
assault by show of violence sufficiently alleges the crime when it
omits facts supporting a “reasonable apprehension of immediate
bodily harm” on the part of the victim.
A warrant for an arrest “must contain a statement of the crime
of which the person to be arrested is accused. No warrant for
arrest . . . is invalid because of any technicality of pleading if
the statement is sufficient to identify the crime.” N.C.G.S. §
15A-304(c) (1999). If the arrest warrant, however, is used as a
criminal pleading pursuant to N.C. Gen. Stat. § 15A-921(3), it must
contain “[a] plain and concise factual statement . . . which . . .
asserts facts supporting every element of [the] criminal offense
and the defendant's commission thereof with sufficient precision
clearly to apprise the defendant . . . of the conduct which is the
subject of the accusation.” N.C.G.S. § 15A-924(a)(5) (1999).
Generally, a warrant which substantially follows “the words of the
statute is sufficient [as a criminal pleading] when it charges the
essentials of the offense in a plain, intelligible, and explicit
manner.”
State v. Barneycastle, 61 N.C. App. 694, 697, 301 S.E.2d711, 713 (1983). If the statutory language, however, “f
ails to set
forth the essentials of the offense, then the statutory language
must be supplemented by other allegations which plainly,
intelligibly, and explicitly set forth every essential element of
the offense as to leave no doubt in the mind of the defendant and
the court as to the offense intended to be charged.”
Id.
The statute under which Defendant is charged, N.C. Gen. Stat.
§ 14-33(a), does not list the essentials of the offense of simple
assault.
See N.C.G.S. § 14-33(a) (1999). Therefore, in order to
charge a defendant with assault under N.C. Gen. Stat. § 14-33(a),
the statutory language must be supplemented by other allegations.
A warrant charging an assault by show of violence must allege: (1)
a show of violence by the defendant; (2) “accompanied by reasonable
apprehension of immediate bodily harm or injury on the part of the
person assailed”; (3) causing the victim “to engage in a course of
conduct which [s]he would not otherwise have followed.”
See State
v. McDaniel, 111 N.C. App. 888, 891, 433 S.E.2d 795, 797-98 (1993)
(setting forth the elements for assault by show of violence).
In this case, the State argues the arrest warrant charged
Defendant with an assault by show of violence. While the arrest
warrant alleged an assault and listed facts supporting the elements
of a show of violence (Defendant jumping from the bushes and
chasing Rupp) and a deviation from her normal activities by the
victim, the arrest warrant fails to allege any facts to support the
element of “reasonable apprehension of immediate bodily harm or
injury on the part of the person assailed.” As this is anessential element of an assault by show of violence, the arrest
warrant, by omitting facts supporting the element of a “reasonable
apprehension of immediate bodily harm,” fails to charge Defendant
with the commission of an assault under this theory. Accordingly,
as the arrest warrant failed to sufficiently charge Defendant with
a crime in the manner required by N.C. Gen. Stat. § 15A-924(a)(5),
the trial court erred in failing to dismiss the charge as stated in
the criminal pleading.
See N.C.G.S. § 15A-924(e) (1999);
see also
N.C.G.S. § 15A-954(a)(10) (1999) (the trial court must dismiss the
charge against a defendant if the criminal pleading fails to charge
an offense);
State v. Madry, 140 N.C. App. 600, 601, 537 S.E.2d
827, 828 (2000) (warrant insufficient because “it did not
adequately apprise defendant of the specific offense with which he
was being charged”).
Vacated.
Judges HUNTER and THOMAS concur.
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