State v. Elliott

552 S.E.2d 727, 346 S.C. 603, 2001 S.C. LEXIS 165

• Court: Supreme Court of South Carolina
• Decided: September 4, 2001
• Docket: 25356
• Status: Published

Opinions

BURNETT, Justice:

We granted certiorari to review a decision of the Court of Appeals holding assault and battery of a high and aggravated nature (ABHAN) is not a lesser included offense of assault with intent to commit criminal sexual conduct (ACSC) in the third degree. State v. Elliott, 335 S.C. 512, 517 S.E.2d 713 (Ct.App.1999). We reverse.

FACTS

Respondent was indicted for ACSC, first degree. Prior to trial, the indictment was amended to ACSC, third degree. The trial court instructed the jury on ACSC third and ABHAN, as a lesser included offense of ACSC third. The jury found respondent guilty of ABHAN. Respondent appealed, arguing the trial court was without subject matter jurisdiction to convict and sentence him for ABHAN because ABHAN is not a lesser included offense of ACSC third. The Court of Appeals agreed and reversed. Id.

ISSUE

Is ABHAN a lesser included offense of ACSC?

DISCUSSION

The test for determining when an offense is a lesser included offense of another is whether the greater of the two offenses includes all the elements of the lesser offense. Carter v. State, 329 S.C. 355, 362, 495 S.E.2d 773, 777 (1998). The Court of Appeals reasoned that because battery is not an element of ACSC third, all the elements of ABHAN were not contained in ACSC third; thus ABHAN could not be a lesser included offense of ACSC third. Elliott, 335 S.C. at 514, 517 S.E.2d at 714.

A person is guilty of criminal sexual conduct when he commits a sexual battery, with the degree of CSC dependent upon the circumstances surrounding the act. See S.C.Code Ann. §§ 16-3-652 through -654 (1985 & Supp.2000). “Sexual battery” does not mean any battery of a sexual nature. Rather, it is statutorily defined to include only certain specific acts, which can be loosely described as involving penetration of some sort. S.C.Code Ann. § 16-3-651(h) (1985) (“ ‘Sexual battery’ means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another pérson’s body, except when such intrusion is accomplished for medically recognized treatment or diagnostic purposes.”). Assault is “an unlawful attempt or offer to commit a violent injury upon another person, coupled with the present ability to complete the attempt or offer by a battery.” State v. Mims, 286 S.C. 553, 554, 335 S.E.2d 237, 237 (1985). Assault differs from battery in that assault does not involve a touching of the victim. Id.; see also State v. Murphy, 322 S.C. 321, 325, 471 S.E.2d 739, 741 (Ct.App.1996). Although most attempted sexual batteries will involve a touching,¹ a person may be convicted of ACSC by proof of an assault with or without a battery.

Given that battery is not a necessary element of ACSC, it follows that ABHAN, which of course requires battery as an element, does not satisfy the elements test. Nevertheless, we have consistently incorporated ABHAN into the CSC framework as a lesser included offense of ACSC. The predecessor to ACSC was assault with intent to ravish (AIR). See State v. Stewart, 283 S.C. 104, 109, 320 S.E.2d 447, 451 (1984). ABHAN was considered a lesser included offense of AIR. State v. Funchess, 267 S.C. 427, 429, 229 S.E.2d 331, 331 (1976). Subsequent to the enactment of the CSC statutes, we have continued to treat ABHAN as a lesser included offense of ACSC.² See State v. Frazier, 302 S.C. 500, 397 S.E.2d 93 (1990) (ABHAN is a lesser included offense of ACSC first); State v. Morris, 289 S.C. 294, 345 S.E.2d 477 (1986) (ABHAN properly submitted to jury as lesser included offense of assault with intent to commit sexual battery). Indeed, in State v. Drafts, 288 S.C. 30, 340 S.E.2d 784 (1986), we expressly held ABHAN is a lesser included offense of ACSC.

To the extent that the elements of ABHAN and ACSC do not meet the elements test, we recognize this situation presents an anomaly in the law, akin to manslaughter and murder. The common law does not always fit into the neat categories we might prefer. Nevertheless, we find compelling reasons not to abandon our longstanding inclusion of ABHAN as a lesser included offense of attempted sexual battery crimes.

CONCLUSION

We adhere to our prior position that ABHAN is a lesser included offense of ACSC. We recognize this holding deviates from the strict elements test, yet decline to overrule our many cases leading to this result. Despite the existence of a few anomalies, we reiterate our commitment to the elements test. We will continue to consider offenses on a case-by-case basis, beginning with the elements test.

REVERSED.

TOAL, C.J., MOORE and WALLER, JJ., concur. PLEICONES, J., dissenting in a separate opinion.

1 . See, e.g., State v. Frazier, 302 S.C. 500, 397 S.E.2d 93 (1990) (assault with intent to commit criminal sexual conduct occurred when the defendant grabbed the victim, forced her into the woods, and ripped her clothes in an effort to commit a sexual battery); State v. Fulp, 310 S.C. 278, 423 S.E.2d 149 (Ct.App.1992) (the evidence supported a verdict of second degree assault with intent to commit criminal sexual conduct, even though the defendant did not verbally threaten the victim, where, after pulling her from the balcony railing over which she was trying to escape, the defendant grabbed her breasts with both hands and began fumbling with the clothing that covered her stomach; thus, the defendant's actions supported an inference that he threatened to use high and aggravated force on the victim to commit a sexual battery).

2 . Furthermore, the legislature, in enacting the CSC statutes, is presumed to know the common law and could have provided that ABHAN not be treated as a lesser offense of ACSC, as it was of AIR. See State v. Bridgers, 329 S.C. 11, 495 S.E.2d 196 (1997) (the legislature is presumed to be aware of the common law).