State v. Brown, No. 25863.

CourtUnited States State Supreme Court of South Carolina
Citation602 S.E.2d 392,360 S.C. 581
Docket NumberNo. 25863.
Decision Date30 August 2004
PartiesThe STATE, Petitioner, v. Robert BROWN, Respondent.

360 S.C. 581
602 S.E.2d 392

The STATE, Petitioner,
v.
Robert BROWN, Respondent

No. 25863.

Supreme Court of South Carolina.

Heard May 13, 2004.

Decided August 30, 2004.


360 S.C. 585
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia, and Solicitor E.L. Clements, III, of Florence, for Petitioner

Tara S. Taggart, of the South Carolina Office of Appellate Defense, of Columbia, for Respondent.

Justice BURNETT:

We granted the petition for a writ of certiorari by the State to consider the Court of Appeals' unpublished decision in State v. Brown, Op. No.2003-UP-274 (S.C. Ct.App. filed April 15, 2003). We affirm.

FACTUAL AND PROCEDURAL HISTORY

Robert Brown (Respondent) was convicted by a jury of three counts of criminal sexual conduct (CSC) in the first degree with a minor under the age of eleven, four counts of CSC in the second degree with a minor between the ages of eleven and fourteen, three counts of committing a lewd act on a minor, one count of assault with intent to commit second-degree CSC with a minor, ten counts of incest, and three counts of CSC in the first degree. He was sentenced to the maximum term of imprisonment on each conviction, with all sentences to be served consecutively for a total sentence of 410 years.

Respondent physically and sexually abused his daughters, who were adults at the time of the trial, repeatedly over a period of years. They testified Respondent regularly beat them with a strap fashioned from a discarded tire if they disobeyed him, refused to have sex with him, or revealed or attempted to reveal the sexual abuse. Respondent also often

360 S.C. 586
beat their mother, who died in 1986. They testified their fear and shame prevented them from revealing the sexual abuse to their mother or anyone else. One daughter was impregnated by Respondent and gave birth to his son at age eleven, she revealed the abuse to her mother at the age of fourteen. Another daughter revealed the abuse to a school guidance counselor at the age of thirteen. Respondent beat both girls for doing so and the sexual abuse continued unabated

The Court of Appeals affirmed all sentences, except the three counts of first degree CSC, which were reversed due to a lack of evidence on a material element of the offense. Respondent's remaining sentences totaling 320 years are not affected by the reversals.

ISSUE

Did the Court of Appeals, after reversing the first-degree CSC convictions due to lack of evidence on one element of the offense, err in not remanding the case for entry of judgment and sentencing on the lesser included offense of second-degree CSC?

STANDARD OF REVIEW

When a motion for a directed verdict of acquittal is made in a criminal case, the trial court is concerned with the existence or non-existence of evidence, not its weight. State v. Morgan, 282 S.C. 409, 319 S.E.2d 335 (1984). The accused is entitled to a directed verdict when the evidence merely raises a suspicion of guilt. State v. Schrock, 283 S.C. 129, 322 S.E.2d 450 (1984); State v. Brownlee, 318 S.C. 34, 455 S.E.2d 704 (Ct.App.1995). The accused also is entitled to a directed verdict when the State fails to present evidence on a material element of the offense charged. State v. McHoney, 344 S.C. 85, 544 S.E.2d 30 (2001); State v. Brown, 103 S.C. 437, 88 S.E. 21 (1916); State v. Gore, 318 S.C. 157, 456 S.E.2d 419 (Ct.App.1995). However, if the State presents any evidence which reasonably tends to prove the defendants guilt, or from which the defendants guilt can be fairly and logically deduced, the case must go to the jury. On appeal from the denial of a motion for directed verdict, this Court must view the evidence in a light most favorable to the State. State v. Childs, 299

360 S.C. 587
S.C. 471, 385 S.E.2d 839 (1989); Schrock, 283 S.C. at 132, 322 S.E.2d at 452

DISCUSSION

The indictment alleged Respondent violated S.C.Code Ann. ?16-3-652(1)(a) (2003) by committing first-degree CSC against an eighteen-year-old daughter between December 1 and 30, 1987 (Count 19); against a sixteen-year-old daughter on or about February 1, 1984 (Count 24); and against the same daughter when she was nineteen years old between December 25 and 30, 1986 (Count 25).

Respondent timely moved for a directed verdict of acquittal on the three counts of first-degree CSC, arguing the State had failed to present any evidence he committed the acts through the use of aggravated force. The trial judge denied the motions, reasoning the presence of aggravated force was an issue of fact for the jury.

A divided Court of Appeals reversed. The majority concluded the trial judge erred in failing to grant a directed verdict because the State did not present any evidence aggravated force accompanied any sexual acts occurring on the dates specified in the indictments. The majority declined to remand the case for entry of judgment and sentencing on the lesser included offense of second-degree CSC pursuant to State v. Muldrow, 348 S.C. 264, 559 S.E.2d 847 (2002). Assuming the evidence was sufficient to sustain a conviction for second-degree CSC, the majority found Muldrow distinguishable because both the greater and lesser offenses (armed robbery and strong arm robbery) in Muldrow were submitted to the jury. In the present case, the State elected to proceed only on the distinct criminal offense of first-degree CSC.

Section 16-3-652(1)(a), under which Respondent was indicted and convicted, provides: "A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven: (a) The actor uses aggravated force to accomplish the sexual battery."1 "`Aggravated

360 S.C. 588
force' means that the actor uses physical force or physical violence of a high and aggravated nature to overcome the victim or includes the threat of the use of a deadly weapon." S.C.Code Ann. ?16-3-651(c) (2003). A conviction of first-degree CSC carries a maximum penalty of thirty years. Section 16-3-652(2).

"A person is guilty of criminal sexual conduct in the second degree if the actor uses aggravated coercion to accomplish the sexual battery." S.C.Code Ann. ?16-3-653 (2003). "`Aggravated coercion' means that the actor threatens to use force or violence of a high and aggravated nature to overcome the victim or another person, if the victim reasonably believes that the actor has the present ability to carry out the threat, or threatens to retaliate in the future by the infliction of physical harm, kidnapping or extortion, under circumstances of aggravation, against the victim or any other person." S.C.Code Ann. ?16-3-651(b) (2003). A conviction of second-degree CSC carries a maximum penalty of twenty years. Section 16-3-653(2). Second-degree CSC is a lesser included offense of first-degree CSC. State v. Summers, 276 S.C. 11, 274 S.E.2d 427 (1981), overruled on other grounds by State v. McFadden, 342 S.C. 629, 539 S.E.2d 387 (2000).

To convict a defendant of first-degree CSC, the State must present evidence the defendant committed a sexual battery and actually used aggravated force at the time of the assault, i.e., the defendant overcame the victim through the use of physical force, physical violence of a high and aggravated nature, or the threat of the use of a deadly weapon. The evidence must show the actual use of aggravated force occurred near in time and place to the assault, such that the effect of the aggravated force caused the victim to submit to the assault. State v. Lindsey, 355 S.C. 15, 20-22, 583 S.E.2d 740, 742-743 (2003) (affirming denial of defendant's directed verdict motion on charge of first-degree CSC where record contained evidence defendant physically forced victim to submit to assault by confining her in automobile, grabbing her

360 S.C. 589
hands, getting on top of her, and holding her down as she kicked, pushed and fought to get him off of her); State v. Frazier, 302 S.C. 500, 397 S.E.2d 93 (1990) (affirming attempted first-degree CSC conviction where State presented evidence that defendant grabbed victim, forced her into woods, and ripped her clothes off in effort to commit sexual battery); State v. Green, 327 S.C. 581, 491 S.E.2d 263 (Ct.App.1997) (reversing denial of defendant's directed verdict motion on charge of first-degree CSC where record contained no evidence defendant used physical force, physical violence, or threatened use of deadly weapon while sexually assaulting his minor daughter by shaving her pubic hair and performing oral sex on her).

The presence of an aggravating circumstance necessary to sustain a prosecution for assault and battery of a high and aggravated nature (ABHAN) is not sufficient to sustain a conviction for first-degree CSC. Lindsey, 355 S.C. at 21, 583 S.E.2d at 742; Green, 327 S.C. at 585-586, 491 S.E.2d 264-265. Such aggravating circumstances include the infliction of serious bodily injury, great disparity in the ages or physical conditions of the parties, a difference in the sexes, the purposeful infliction of shame and disgrace, taking indecent liberties or familiarities with a female, and resistance to lawful authority. E.g. State v. Foxworth, 269 S.C. 496, 238 S.E.2d 172 (1977).2 "[A] sexual battery constitutes first-degree CSC under Section 16-3-652(1)(a) only if it was accomplished through the use of force and the force constitutes aggravated force." Lindsey, 355 S.C. at 21, 583 S.E.2d at 743 (quoting Green, supra) (emphasis in original).

In contrast, the threat of the use of force or violence of a high and aggravated nature, either during the assault or in the future, may constitute aggravated coercion and is sufficient to sustain a conviction of second-degree CSC under Section 16-3-653. It is true that criminal sexual conduct, regardless of...

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33 practice notes
  • State v. Pittman, No. 26339.
    • United States
    • United States State Supreme Court of South Carolina
    • June 11, 2007
    ...the denial of a motion for directed verdict, this Court must view the evidence in a light most favorable to the State. State v. Brown, 360 S.C. 581, 586-87, 602 S.E.2d 392, 395 (2004) (emphasis added) (internal citations omitted). Generally, a criminal defendant is presumed to have the requ......
  • State v. Petion, SC 19938
    • United States
    • Supreme Court of Connecticut
    • July 23, 2019
    ...lesser included offense." (Internal 211 A.3d 1009 quotation marks omitted.) Id., at 152 n.30, 51 A.3d 1048, quoting State v. Brown , 360 S.C. 581, 594–97, 602 S.E.2d 392 (2004) ; see State v. Brown , supra, at 594–97, 602 S.E.2d 392 (explaining why charge on lesser included offense is ......
  • State v. Ray, No. 17905.
    • United States
    • Supreme Court of Connecticut
    • January 6, 2009
    ...that charge and would be inconsistent with New Mexico law regarding jury instructions and preservation of error"), State v. Brown, 360 S.C. 581, 594, 602 S.E.2d 392 (2004) (jury must be instructed on lesser included offense in order to remand for sentencing on that crime) and Collier v......
  • State v. Sanseverino, No. 17786.
    • United States
    • Supreme Court of Connecticut
    • May 19, 2009
    ...Ex parte Roberts, 662 So.2d 229, 232 (Ala.1995) (same); State v. Villa, 136 N.M. 367, 371, 98 P.3d 1017 (2004) (same); State v. Brown, 360 S.C. 581, 594, 602 S.E.2d 392 (2004) Under the unique circumstances of this case, we conclude that the state is entitled to the modification of the judg......
  • Request a trial to view additional results
38 cases
  • State v. Sanseverino, No. 17786.
    • United States
    • Supreme Court of Connecticut
    • May 19, 2009
    ...Ex parte Roberts, 662 So.2d 229, 232 (Ala.1995) (same); State v. Villa, 136 N.M. 367, 371, 98 P.3d 1017 (2004) (same); State v. Brown, 360 S.C. 581, 594, 602 S.E.2d 392 (2004) Under the unique circumstances of this case, we conclude that the state is entitled to the modification of the judg......
  • State v. LaFleur, No. 18757.
    • United States
    • Supreme Court of Connecticut
    • September 28, 2012
    ...Ex parte Roberts, 662 So.2d 229, 232 (Ala.1995) (same); State v. Villa, 136 N.M. 367, 371, 98 P.3d 1017 (2004) (same); State v. Brown, 360 S.C. 581, 594, 602 S.E.2d 392 (2004) (same).” State v. Sanseverino, supra, 291 Conn. at 593–95, 969 A.2d 710; see also United States v. Spinney, 65 F.3d......
  • State v. Pittman, No. 26339.
    • United States
    • United States State Supreme Court of South Carolina
    • June 11, 2007
    ...the denial of a motion for directed verdict, this Court must view the evidence in a light most favorable to the State. State v. Brown, 360 S.C. 581, 586-87, 602 S.E.2d 392, 395 (2004) (emphasis added) (internal citations omitted). Generally, a criminal defendant is presumed to have the requ......
  • State v. Sanseverino, No. 17786.
    • United States
    • Supreme Court of Connecticut
    • July 1, 2008
    ...Dinkane, 17 F.3d 1192, 1198 (9th Cir.1994) (requiring jury instruction on lesser included offense to modify judgment), and State v. Brown, 360 S.C. 581, 594, 602 S.E.2d 392 (2004) (jury must be instructed on lesser included offense in order to remand for sentencing on that crime). Furthermo......
  • Request a trial to view additional results

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