Converted WP file 061471-1

Appeal by defendant from judgment entered 8 June 2006 by Judge Henry E. Frye, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 4 June 2007.

Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.

Paul F. Herzog for defendant.

LEVINSON, Judge.

     Clifton Erwin Teachey (defendant) was found guilty of attempted first degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. Defendant was sentenced to a term of 189 to 236 months.
    The evidence presented at trial tended to show the following: Defendant and Yuvonne Boi lived together in a house in Greensboro, North Carolina. On 12 November 2005, defendant was released from jail following his imprisonment on a probation violation. Upon his return to their home, he and Boi began arguing after defendant took $20.00 from Boi. Boi told defendant she wanted to leave him.
    On 15 November 2005, Boi again told defendant she was going to leave him. Boi went to look at an apartment and defendant wentwith her. Upon their return home, defendant became upset. With no warning, defendant hit Boi in the head with his forearm, knocking her to her knees. Defendant grabbed Boi around the neck and told her that she was “not going nowhere, that he was going to kill [her] tonight .” He then put her in a “headlock” and took her to the bedroom. Once in the bedroom, defendant continued to threaten Boi. Meanwhile, Boi prayed and tried to go to sleep, hoping that defendant would calm down. Eventually, Boi fell asleep.
    Sometime later, Boi awoke suddenly when she was stabbed in the neck. Defendant was in the bed next to her holding a steak knife with a white handle. Boi asked defendant what he was doing, and then defendant stabbed himself twice in the neck with the same knife. Defendant then laid down in the bed beside Boi. Eventually, defendant got up from the bed and called 911. Boi heard defendant say on the phone that “'some drug dealers had came in and stabbed my old lady and me.'” A short time later, police arrived, and defendant and Boi were taken to the hospital.
    At the hospital, defendant told investigators that he was asleep when he was stabbed in the neck. When asked if he had any idea who may have stabbed them, defendant told police that “he thought it was somebody Yuvonne owed money to . . . .” Defendant further stated that after he was stabbed, “he sat up and saw a black male in his thirties or forties leaving out the side door.”
    Boi suffered a 2.5 centimeter laceration to the right side of her neck. She suffered acute blood loss and went into shock. Police interviewed her soon after her admission to the hospital,but she was groggy and told police she had no idea who stabbed her. However, once her condition was stabilized, police interviewed her again. This time, she told police that defendant stabbed her in the neck and then stabbed himself.
     Defendant was convicted on both counts. The trial court consolidated the convictions for judgment and sentenced defendant to a term of 189 to 236 months imprisonment. Defendant appeals.
     Defendant first argues that the trial court erred by sentencing him for both attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury where the offenses were based on the same incident. Defendant contends that his convictions violate his right to be free from double jeopardy. We disagree.
    We initially note that defendant has failed to preserve this issue for appellate review. Defendant did not raise this issue at trial. Defendant claims that this argument has been preserved for appellate review because the trial court clearly considered the issue. Specifically, the trial court asked the prosecutor at sentencing, in reference to the assault conviction, whether this was “something I'm going to have to arrest judgment on?” However, the trial court's question was unsolicited. Defendant never objected or made any argument that his convictions or sentence violated double jeopardy. See also State v. Williams, 355 N.C. 501, 528, 565 S.E.2d 609, 625 (2002) (“'Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.'” (quoting State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001)). Additionally, to the extent that defendant claims the issue should be reviewed under a plain error analysis, we note that plain error does not apply in this case. See State v. Greene , 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000) (“plain error analysis applies only to instructions to the jury and evidentiary matters.” ) .
    Furthermore, even assuming arguendo that this issue was preserved for appeal, it is nevertheless without merit. In State v. Tirado, 358 N.C. 551, 599 S.E.2d 515 (2004) , our Supreme Court analyzed whether convictions for both attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury violated double jeopardy. The Court explained that:
        The elements of attempted first-degree murder are: (1) a specific intent to kill another; (2) an overt act calculated to carry out that intent, which goes beyond mere preparation; (3) malice, premeditation, and deliberation accompanying the act; and (4) failure to complete the intended killing. The elements of assault with a deadly weapon with intent to kill inflicting serious injury are: (1) an assault, (2) with the use of a deadly weapon, (3) with an intent to kill, and (4) inflicting serious injury, not resulting in death. Therefore, assault with a deadly weapon with intent to kill inflicting serious injury requires proof of the use of a deadly weapon, as well as proof of serious injury, neither of which are elements of attempted first-degree murder. Similarly, attempted first-degree murder includes premeditation and deliberation, which are not elements of assault with a deadly weapon with intent to kill inflicting serious injury. Because each offense contains at least one element not included in the other, defendants have not been subjected to double jeopardy.

Id. at 579, 599 S.E.2d at 534 (citations omitted); see also Statev. Peoples, 141 N.C. App. 115, 117, 539 S.E.2d 25, 28 (2000) . The instant case is indistinguishable from Tirado and Peoples. Accordingly, defendant's argument is overruled.
    Defendant next argues that the indictment for attempted first degree murder was insufficient as a matter of law because it did not include the elements of intent to kill or premeditation and deliberation. Defendant further argues that the indictment was fatally defective because it failed to specify an overt act.
    After careful review of the record, briefs and contentions of the parties, we find no error. The use of the short form indictment has been upheld by the United States Supreme Court, our Supreme Court, and this Court. See State v. Jones, 359 N.C. 832, 838, 616 S.E.2d 496, 499 (2005)(“[W]e hold that N.C.G.S. § 15-144, when construed alongside N.C.G.S. § 15-170, implicitly authorizes the [S]tate to utilize a short-form indictment to charge attempted first-degree murder.”); State v. Hunt, 357 N.C. 257, 582 S.E.2d 593 (2003)(tracing the legislative history of the short-form indictment); State v. Smith , 352 N.C. 531, 539, 532 S.E.2d 773, 779 (2000) .
    No error.
    Judges McCULLOUGH and STEELMAN concur.
    Report per Rule 30(e).

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