Appeal by defendant from judgment entered 7 September 2004 by
Judge L. Todd Burke in Forsyth County Superior Court. Heard in the
Court of Appeals 8 December 2005.
Attorney General Roy Cooper, by William M. Polk, Director,
Victims and Citizens Services, for the State.
Eric A. Bach, for defendant-appellant.
Defendant Tina Simmons appeals from judgments entered upon her
plea of guilty to two charges of assault with a deadly weapon,
inflicting serious injury, in violation of N.C. Gen. Stat. § 14-
32(B) (2005). For the reasons that follow, we reverse.
The record evidence generally establishes the following: On
1 November 2003 defendant was injured in an affray with Renee
Kistler and a third party. Later that day, defendant and her
boyfriend, Michael Richardson, sought out Kistler and her
boyfriend, Scott DeBoard. In revenge for defendant's earlier
injuries, Richardson and defendant attacked and seriously injuredKistler and DeBoard. This appeal arises from assault charges
brought against defendant following this incident.
Indictments were returned on 9 February 2004, charging
defendant with assault with a deadly weapon inflicting serious
injury (AWDWISI) against DeBoard, in case No. 03CRS 62847; and with
assault with a deadly weapon intending to kill, inflicting serious
injury (AWDWIKISI) against Kistler, in case No. 03CRS 37633. On 6
July 2004 the State obtained a superceding indictment in case 03CRS
37633. On 7 September 2004 defendant entered a plea of guilty to
AWDWISI in 03CRS 62847, for the assault on DeBoard, and pled guilty
in 03CRS 37633 to a reduced charge of AWDWISI for the assault
against Kistler. Defendant's guilty pleas were accepted by the
trial court, and she received an active prison sentence of nineteen
to twenty months in 03CRS 37633, and a sentence of twenty-nine to
forty-four months in 03CRS 62847 for the assault on DeBoard, to be
served at the expiration of the other sentence. From this judgment
and order, defendant appeals.
Defendant argues first that the trial court erred by entering
judgment against her, on the grounds that the indictments charging
her with the subject offenses failed to adequately allege that the
offenses were committed by means of a deadly weapon. We agree.
By knowingly and voluntarily pleading guilty, an accused
waives all defenses other than the sufficiency of the indictment.
Nevertheless, when an indictment is alleged to be facially invalid,
thereby depriving the trial court of jurisdiction, the indictmentmay be challenged at any time. 'Our Supreme Court has stated that
an indictment is fatally defective when the indictment fails on the
face of the record to charge an essential element of the offense.'
State v. McGee
, __ N.C. App. __, __, 623 S.E.2d 782, 784 (2006)
(quoting State v. Bartley
, 156 N.C. App. 490, 499, 577 S.E.2d 319,
324 (2003); and citing State v. Hughes
, 136 N.C. App. 92, 97, 524
S.E.2d 63, 66 (1999). In McGee,
this Court entertained defendant's
challenge to the facial validity of the indictment under which he
A valid bill of indictment is essential to the jurisdiction
of the Superior Court to try an accused for a felony[.] State v.
, 154 N.C. App. 332, 334, 572 S.E.2d 223, 226 (2002)
(citations omitted). Under N.C. Gen. Stat. § 15A-924(a)(5) (2005),
a criminal indictment must include:
[a] plain and concise factual statement in
each count which, without allegations of an
evidentiary nature, asserts facts supporting
every element of a criminal offense and the
defendant's commission thereof with sufficient
precision clearly to apprise the defendant or
defendants of the conduct which is the subject
of the accusation.
An indictment is constitutionally sufficient if it identifies the
offense with enough certainty 1) to enable the accused to prepare
his defense, 2) to protect him from being twice put in jeopardy for
the same offense, and 3) to enable the court to know what judgment
to announce in the event of conviction. State v. Morris
, 156 N.C.
App. 335, 338, 576 S.E.2d 391, 393 (2003). Regarding the requisites for an indictment charging an assault
with a deadly weapon, the North Carolina Supreme Court has held
[I]t is sufficient for indictments or warrants
seeking to charge a crime in which one of the
elements is the use of a deadly weapon (1) to
name the weapon and
(2) either to state
expressly that the weapon used was a 'deadly
weapon' or to allege such facts as would
necessarily demonstrate the deadly character
of the weapon.
State v. Palmer
, 293 N.C. 633, 639-40, 239 S.E.2d 406, 411 (1977)
(emphasis added). In Palmer,
the indictment was held to
sufficiently name the deadly weapon where it alleged that defendant
unlawfully and wilfully did feloniously assault [the victim] with
a stick, a deadly weapon[.]
Other appellate decisions have followed Palmer,
applying a hypertechnical approach to judging the degree of
specificity by which a deadly weapon must be described. Thus, an
indictment charging that the defendant did assault [the victim]
with his fists, a deadly weapon, by hitting [the victm] over the
body with his fists and slamming his head against the cell bars and
floor has been held sufficient to allege that both the fists of
defendant and the cell bars and floor were deadly weapons. State
, 337, N.C. 764, 767, 769, 448 S.E.2d 822, 824, 825
(1994). In another case, an indictment asserting that defendant
assaulted the victim with a table leg, a deadly weapon, was not
deemed invalid when trial evidence indicated the victim was
actually assaulted with a footstool
leg. State v. Everhardt
N.C. App. 1, 384 S.E.2d 562 (1989). However, to be sufficient an indictment charging assault with
a deadly weapon must name the weapon. In State v. Moses
, 154 N.C.
App. at 335-36, 572 S.E.2d at 226, the defendant was charged with
AWDWISI, in indictments stating
that on or about the date of
offense shown and in Forsyth County the defendant named above
unlawfully, willfully and feloniously did assault Mateo Mendez
Jimenez with a deadly weapon. The assault resulted in the
infliction of a serious injury, knocking out his teeth. This
Court held this was insufficient to charge defendant with AWDWISI,
as it clearly [did] not name the deadly weapon allegedly used by
defendant in his assault on Jimenez and therefore violates the
requirements set forth in Brinson
In the instant case, defendant was charged in indictments
alleging, in pertinent part that:
03 CRS 62847: . . . [the defendant]
unlawfully, willfuly and feloniously did
assault William Scott DeBoard with an unknown
object, which the defendant used as a deadly
weapon by repeatedly striking the victim about
the lower extremities with said object and as
a result, inflicted serious injury to the
victim; to wit: breaking the leg of said
03 CRS 37633 . . . [the defendant] unlawfully,
willfuly and feloniously did assault Tina
Renee Kistler with an unknown object, a deadly
weapon, with the intent to kill and inflicting
In neither indictment is the deadly weapon named or
identified; under Palmer
, and other cases, both indictments
are therefore fatally defective. Accordingly, defendant's
convictions must be vacated. Defendant also argues that the trial court failed to inform
her of the maximum sentence for the subject offenses. As this
issue is unlikely to recur on remand, we do not address it.
As discussed above, the judgments against defendant are
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
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