An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-836


Filed: 15 March 2005


         v.                             Cumberland County
                                     No. 03 CRS 57686

    Appeal by defendant from judgment entered 16 March 2004 by Judge Jack A. Thompson in Cumberland County Superior Court. Heard in the Court of Appeals 28 February 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Floyd M. Lewis, for the State.

    Geoffrey W. Hosford for defendant appellant.

    McCULLOUGH, Judge.

    Defendant appeals from a judgment entered by the Cumberland County Superior Court imposing a suspended sentence of thirty days on a conviction by a jury of simple assault.
    By the sole assignment of error brought forward, defendant contends the warrant fails to charge the crime of assault. The warrant charges that she “unlawfully and willfully did assault and strike NATHAN SCOTT by KICKING HIM, SLAPPININ [sic] THE BACK OF HIS NECK, AND BITING HIM ON HIS BACK AND ARM.” She argues the warrant fails to allege that defendant placed Mr. Scott in apprehension of bodily harm or performed an overt act attempting to do physical injury to him within the common law definition of the offense. She submits that the warrant charges a battery, not an assault.     A criminal pleading is sufficient if it contains a plain and concise statement asserting sufficient facts to support every element of a criminal offense and to apprise the defendant of the conduct which is the subject of the accusation. N.C. Gen. Stat. § 15A-924(a)(5) (2003). The pleading is not required to state every element of the offense charged; it is required only to state facts supporting every element. State v. Jordan, 75 N.C. App. 637, 639, 331 S.E.2d 232, 233, disc. review denied, 314 N.C. 544, 335 S.E.2d 23 (1985).
    Given the absence of a statutory definition, the criminal offense of assault is generally defined by common law as an overt act or attempt, with force and violence, to do some immediate physical injury to the person of another or to put a person of reasonable firmness in fear of immediate bodily harm. State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967). Battery is defined as the unlawful application of force to the person of another. State v. Thompson, 27 N.C. App. 576, 577-78, 219 S.E.2d 566, 568 (1975), disc. review denied, 289 N.C. 141, 220 S.E.2d 800 (1976). Every battery includes an assault. State v. Hefner, 199 N.C. 778, 780, 155 S.E. 879, 880 (1930). When a battery is shown, it is not necessary to show that the victim was placed in fear in order to convict the defendant of assault. State v. Lassiter, 18 N.C. App. 208, 212, 196 S.E.2d 592, 595 (1973). It follows, based upon the foregoing authorities, that when a warrant charging one with assault states facts supporting a charge of battery, the warrant does not need to allege that the victim was placed in fear. This assignment of error is overruled.
    No error.
    Chief Judge MARTIN and Judge CALABRIA concur.
    Report per Rule 30(e).

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