State v. Dawkins, Appellate Case No. 2015-002254
Decision Date | 29 November 2017 |
Docket Number | Unpublished Opinion No. 2017-UP-442,Appellate Case No. 2015-002254 |
Parties | The State, Respondent, v. Brad Bernard Dawkins, Appellant. |
Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Appeal From Laurens County
Eugene C. Griffith, Jr., Circuit Court Judge
AFFIRMED
Miller W. Shealy, Jr., of Miller Shealy Law Firm, of Charleston, for Appellant.
Attorney General Alan McCrory Wilson and Assistant Attorney General Vann Henry Gunter, Jr., both of Columbia, and Solicitor David Matthew Stumbo, of Greenwood, all for Respondent.
Appellant Brad Bernard Dawkins appeals his convictions for lewd act upon a minor (lewd act) and second-degree criminal sexual conduct with a minor (CSC with a minor), arguing the trial court erred by (1) refusing to charge the jury on the lesser included offense of assault and battery of a high and aggravated nature (ABHAN), (2) denying his motion for a directed verdict, and (3) allowing the State to make improper comments during its closing argument. We affirm.
1. We find the trial court did not abuse its discretion by refusing to charge the jury on the lesser included charge of ABHAN. First, we agree with Dawkins that ABHAN is a lesser included offense of CSC with a minor because our courts have traditionally made such a finding. See State v. Geiger, 370 S.C. 600, 606, 635 S.E.2d 669, 672 (Ct. App. 2006) ( ); State v. Gilmore, 396 S.C. 72, 76, 719 S.E.2d 688, 690 (Ct. App. 2011) (); Moultrie v. State, 354 S.C. 646, 648, 583 S.E.2d 436, 437 (2003) ( ); State v. Forbes, 296 S.C. 344, 345, 372 S.E.2d 591, 592 (1988) ().
Next, although ABHAN may be a lesser included offense of CSC with a minor, we find the trial court did not abuse its discretion by refusing to charge the jury on ABHAN. See State v. Stanko, 402 S.C. 252, 264, 741 S.E.2d 708, 714 (2013) (); State v. Lemire, 406 S.C. 558, 565, 753 S.E.2d 247, 251 (Ct. App. 2013) . After thoroughly considering the evidence presented during Dawkins's trial, we find the evidence did not support a finding that he committed ABHAN rather than CSC with a minor. See State v. Brown, 362 S.C. 258, 262, 607 S.E.2d 93, 95 (Ct. App. 2004) (); State v. Crosby, 355 S.C. 47, 51, 584 S.E.2d 110, 112 (2003) .
To the extent Dawkins claims he was entitled to a charge on ABHAN because the jury could have believed and disbelieved parts of the victim's testimony, we disagree. The victim's testimony regarding events prior to November 30, 2009, if believed by the jury, amounted to sexual battery and CSC with a minor. In hisdefense, Dawkins testified the victim's allegations were untrue. Based on this evidence, with regard to the victim's allegations of their encounters prior to November 30, 2009, Dawkins either committed sexual battery and CSC with a minor or no battery at all. Thus, he was not entitled to a jury charge on the lesser included offense of ABHAN. See Moultrie, 354 S.C. at 648, 583 S.E.2d at 437 ( ); Forbes, 296 S.C. at 345, 372 S.E.2d at 592 ( ).
Additionally, to the extent Dawkins argues the victim's testimony regarding their specific interaction on November 30, 2009, could have amounted to ABHAN, rather than CSC with a minor, because the victim admitted there was no penetration during that encounter, we find he was not entitled to a jury charge on ABHAN as a lesser included offense. See Gilmore, 396 S.C. at 78-79, 719 S.E.2d at 691 ( ). In Dempsey v. State, the defendant claimed he was entitled to a jury charge on ABHAN because there was evidence he physically abused the victim in a nonsexual way. 363 S.C. 365, 371, 610 S.E.2d 812, 815 (2005). However, our supreme court disagreed because the evidence of nonsexual, physical abuse was in addition to the evidence of several independent, noncontemporaneous instances of alleged CSC. Id. Thus, the court concluded that although there was "evidence of conduct that could be construed as ABHAN, none of these incidents was alleged to have occurred instead of the" instances of CSC. Id. In this case, although the evidence surrounding the encounter on November 30, 2009, may have supported a finding of ABHAN, it merely supported a finding that ABHAN occurred in addition to the prior instances of alleged CSC with a minor. Under such circumstances, Dawkins was not entitled to a jury charge on ABHAN as a lesser included offense of CSC with a minor because there was no evidence supporting an inference that ABHAN occurred rather than CSC with a minor. Accordingly, we affirm on this issue.
2. We find the trial court did not err by denying...
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