Opinion
No. 07-940.
Filed 20 May 2008.
Alamance County Nos. 05CRS53425-26.
Appeal by defendant from judgments entered 12 February 2007 by Judge James C. Spencer, Jr., in Alamance County Superior Court. Heard in the Court of Appeals 14 April 2008.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Kristen L. Todd and Daniel K. Shatz, for Defendant.
Thomas Mitchell Brooks (Defendant) appeals from judgment entered convicting him of assault by strangulation. We affirm.
On 25 September 2006, Defendant was indicted on two counts of assault by strangulation, and two counts of assault with a deadly weapon with intent to kill. The indictments charging Defendant with assault by strangulation alleged that Defendant "did unlawfully, willfully and feloniously assault JERI ANDREWS BROOKS and inflict physical injury, DIFFICULTY BREATHING, by strangulation, USING HIS HANDS TO SQUEEZE HER THROAT." On 12 February 2007, Defendant pled guilty pursuant to a plea agreement to two counts of assault with a deadly weapon and one count of assault by strangulation. In accordance with the plea agreement, the second count of assault by strangulation was dismissed. Defendant was sentenced to consecutive terms of fifty-four to seventy-four and eighteen to twenty-two months imprisonment. Defendant appeals.
Defendant argues that the trial court lacked subject matter jurisdiction to enter judgment on the charge of assault by strangulation because the indictment failed to sufficiently allege the element of physical injury. Accordingly, Defendant asserts that the indictment is fatally defective and the conviction for assault by strangulation must be vacated. We are not persuaded.
We initially note that Defendant pled guilty. "By knowingly and voluntarily pleading guilty, an accused waives all defenses other than the sufficiency of the indictment." State v. McGee, 175 N.C. App. 586, 587, 623 S.E.2d 782, 784 (citing State v. Hughes, 136 N.C. App. 92, 97, 524 S.E.2d 63, 66 (1999)), disc. review denied, appeal dismissed, 360 N.C. 542, 634 S.E.2d 891 (2006). Thus, generally, when a Defendant pleads guilty, as the Defendant in this case did, right of appeal is limited to those issues set out in N.C. Gen. Stat. § 15A-1444(a2). However, "when an indictment is alleged to be facially invalid, thereby depriving the trial court of jurisdiction, the indictment may be challenged at any time." McGee, 175 N.C. App. at 587-88, 623 S.E.2d at 784 (citing State v. Bartley, 156 N.C. App. 490, 499, 577 S.E.2d 319, 324 (2003)). Defendant argues on appeal that the indictment for assault by strangulation was fatally defective. Therefore, we conclude that the appeal is properly before the Court.
"A criminal indictment is sufficient if it expresses `the charge against the defendant in a plain, intelligible, and explicit manner.' Specifically, the indictment must allege all of the essential elements of the crime sought to be charged." State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996) (quoting N.C. Gen. Stat. § 15-153 [(2007)]). N.C. Gen. Stat. § 15A-924(a)(5) (2007), requires that a bill of indictment must contain the following:
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.
In State v. Coker, 312 N.C. 432, 323 S.E.2d 343 (1984), our Supreme Court stated:
An indictment or criminal charge is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense. The indictment must also enable the court to know what judgment to pronounce in the event of conviction.
Id. at 434-35, 323 S.E.2d at 346. "In general, an indictment couched in the language of the statute is sufficient to charge the statutory offense." State v. Blackmon, 130 N.C. App. 692, 699, 507 S.E.2d 42, 46 (1998). N.C. Gen. Stat. § 14-32.4(b) (2007), the statute criminalizing assault by strangulation, provides that "[u]nless the conduct is covered under some other provision of law providing greater punishment, any person who assaults another person and inflicts physical injury by strangulation is guilty of a Class H felony." Thus, the essential elements of the offense required to be alleged in the indictment are: (1) an assault on another person; (2) inflicting physical injury; (3) by strangulation. See State v. Braxton, 183 N.C. App. 36, 41, 643 S.E.2d 637, 641 (stating that "[t]he offense of assault by strangulation requires only that an individual assault another person and inflict physical injury by strangulation"), disc. review denied, 361 N.C. 697, 653 S.E.2d 4 (2007). "`Strangulation' is not defined in the statute, but wrapping one's hands around another's throat and applying pressure until the person loses consciousness certainly falls well within the boundaries of the term." State v. Little, ___ N.C. App. ___, ___, 654 S.E.2d 760, 764 (2008).
Here, the indictment traced the language of Braxton, ___ N.C. App. at ___, 643 S.E.2d at 641, to set forth the essential elements of the offense, alleging that "Defendant . . . did unlawfully, willfully and feloniously assault Jeri Andrews Brooks and inflict physical injury . . . by strangulation[.]" Therefore, we conclude the indictment alleged the essential elements of the offense and was sufficient. The indictment also alleged that Defendant caused Jeri Andrews Brooks "difficulty breathing . . . [by] using his hands to squeeze her throat." These allegations were "beyond the essential elements of the offense" and thus, they were mere surplusage — "irrelevant" to the sufficiency of the indictment. See State v. Pelham, 164 N.C. App. 70, 79, 595 S.E.2d 197, 203, appeal dismissed and disc. review denied, 359 N.C. 195, 608 S.E.2d 63 (2004) (stating that "[a]llegations beyond the essential elements of the offense are irrelevant and may be treated as surplusage and disregarded when testing the sufficiency of the indictment."); see also State v. Gregory, 223 N.C. 415, 27 S.E.2d 140 (1943) (holding that failure to describe injury in indictment for assault with intent to kill inflicting serious injury was not a fatal defect). Accordingly, the judgment is affirmed.
Affirmed.
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).