No fatal variance occurred when a juvenile petition alleged that the juvenile assaulted the victim with his hands and the evidence established that he touched her with an object.

There was no fatal variance between an indictment charging assault with a deadly weapon with intent to kill inflicting serious injury and the evidence at trial. The indictment alleged the deadly weapon to be a handgun while the trial evidence showed it was an AK-47 rifle. The court reasoned: “both a handgun and an AK-47 rifle are a type of gun, are obviously dangerous weapons, and carry the same legal significance.” Moreover, the defendant failed to demonstrate that the variance caused prejudice.  

Even if there was a fatal variance between the indictment, which alleged that the defendant accomplished the strangulation by placing his hands on the victim’s neck, and the evidence at trial, the variance was immaterial because the allegation regarding the method of strangulation was surplusage.

There was no fatal defect in an indictment for felony assault on a handicapped person. The indictment alleged, in part, that the defendant unlawfully, willfully, and feloniously assaulted and struck “a handicapped person by throwing Carol Bradley Collins across a room and onto the floor and by striking her with a crutch on the arm. In the course of the assault the defendant used a deadly weapon, a crutch. This act was in violation of North Carolina General Statutes section 14-17.” The court rejected the argument that the indictment was defective for failing to allege the specific nature of the victim’s handicap. The court also rejected the defendant’s argument that the indictment was defective by failing to allege that he knew or reasonably should have known of the victim’s handicap. Citing State v. Thomas, 153 N.C. App. 326 (2002) (assault with a firearm on a law enforcement officer case), the court concluded that although the indictment did not specifically allege this element, its allegation that he “willfully” assaulted a handicapped person indicated that he knew that the victim was handicapped. Finally, the court determined that the indictment was not defective because of failure to cite the statute violated. Although the indictment incorrectly cited G.S. 14-17, the statute on murder, the failure to reference the correct statute was not, by itself, a fatal defect.

Indictment charging malicious conduct by prisoner under G.S. 14-258.4 need not allege the specific duty the officer was performing and if it does, it is surplusage.

A two-count indictment properly alleged habitual misdemeanor assault. Count one alleged assault on a female, alleging among other things that the defendant’s conduct violated G.S. 14-33 and identifying the specific injury to the victim. The defendant did not contest the validity of this count. Instead, he argued that count two, alleging habitual misdemeanor assault, was defective because it failed to allege a violation of G.S. 14-33 and that physical injury had occurred. Finding State v. Lobohe, 143 N.C. App. 555 (2001) (habitual impaired driving case following the format of the indictment at issue in this case), controlling the court held that the indictment complied with G.S. 15A-924 & -928.