State v. Elliott

• Decision Date: 04 September 2001
• Docket Number: No. 25356.,25356.
• Citation: 552 S.E.2d 727,346 S.C. 603
• Court: South Carolina Supreme Court
• Parties: The STATE, Petitioner, v. Clyde ELLIOTT, Respondent.

346 S.C. 603

552 S.E.2d 727

The STATE, Petitioner, v. Clyde ELLIOTT, Respondent.

No. 25356.

Supreme Court of South Carolina.

Heard June 21, 2000.

Decided September 4, 2001.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, all of Columbia; and Solicitor Randolph Murdaugh, III, of Hampton, for petitioner.

Deputy Chief Attorney Joseph L. Savitz, III, of South Carolina Office of Appellate Defense, of Columbia, for respondent.

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 person'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.

PLEICONES, Justice:

I respectfully dissent, and would affirm the decision of the Court of Appeals as modified. In my opinion, fairness to the bench and bar requires that we adopt a lesser included offense test that applies to all cases and not utilize an ad hoc approach. The majority holds that the first step in any greater-lesser analysis is the application of the "elements test," and that where that test fails to yield the desired result, we may conclude that the offense should be considered a lesser as an "anomaly." In my view, this rule does not provide for the stability and predictability necessary in the criminal law.

As explained below, I would take this opportunity to restate the law of lesser included offenses.

Since this case involves the relationship between greater and lesser offenses, I begin by noting that the issue can arise ³ in any of four situations:

(1) whether a statutory offense is the lesser of another statutory offense;

(2) whether a statutory offense is the lesser of a common law offense;

(3) whether a common law offense is the lesser of a statutory crime; or,

(4) whether a common law offense is the lesser of a common law crime.

Where any of the first three scenarios are involved, the determinative question is whether the offenses can meet the "elements test." In the fourth situation, the critical issue is the historical relationship of the two offenses. In this dissent, I will first review the distinctions between common law offenses and statutory crimes.⁴ I will next examine the evolution of the law of rape and sexual battery in South Carolina, and then explain why I agree with the Court of Appeals that 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 (AWCSC).

A. THE TWO TESTS FOR LESSER INCLUDED OFFENSES

An indictment confers jurisdiction upon the circuit court,⁵ and gives the defendant notice of the charges against him.⁶ The language of the indictment determines the crime charged.⁷ A defendant may be convicted of the crime charged in the indictment, or of any lesser included offense. Campbell v. State, 342 S.C. 100, 535 S.E.2d 928 (2000). This Court has repeatedly stated that the test for determining whether one crime is a lesser included of another is whether the greater of the two offenses includes all the elements of the lesser. E.g., Knox v. State, 340 S.C. 81, 530 S.E.2d 887 (2000)

; Murdock v. State, 308 S.C. 143, 417 S.E.2d 543 (1992).

I would hold that this "elements test" is to be applied where the lesser included issue involves the relationship between:

(a) multiple statutory offenses;

(b) a greater statutory and lesser common law offense; and

(c) a greater common law and lesser statutory offense.

A different test applies when the indictment charges a common law offense, and the question is whether that charge includes any lesser included common law crimes. In deciding this issue, reference must be had to the common law development of the crime and its historical lesser included offenses, and not to the "elements test."

At common law, an indictment for the greater offense includes within it all the lesser grades of that crime. 31 C.J. Indictments and Informations § 482 (1923); State v. Gaffney, 24 S.C. Law (1 Rice) 431 (1839). Thus, it is not necessary that the greater common law offense include all the elements of its lesser grades. In fact, it often does not.

For example, murder is defined as the unlawful killing of a human being with malice aforethought, and includes the lesser offense of manslaughter, the unlawful killing of a person without malice. E.g., State v. Gaffney, supra; compare S.C.Code Ann. § 16-3-10 (1985) (defining murder) with § 16-3-50 (Supp.1999)(defining manslaughter). When the grades of common law homicide⁸ are defined this way, murder and manslaughter satisfy the "elements test" described above.

Manslaughter, however, is further divided under South Carolina common law into two grades. The greater, voluntary manslaughter, is the unlawful killing of another without malice in sudden heat of passion upon a sufficient legal provocation.⁹ The lesser, involuntary manslaughter, is the unintentional killing of another without malice while acting in a criminally negligent manner.¹⁰ The lack of malice in manslaughter is thus defined in two different ways in order to reflect differing degrees of culpability, and therefore it is inaccurate to assert that voluntary manslaughter includes all the elements of involuntary manslaughter. It is similarly inaccurate to state that common law murder includes all the elements of its lesser included offenses of manslaughter.

I would therefore hold that...