State v. Forbes, 22910
| Decision Date | 20 September 1988 |
| Docket Number | No. 22910,22910 |
| Citation | 372 S.E.2d 591,296 S.C. 344 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. David Carl FORBES, Appellant. . Heard |
Tony R. Megna, Columbia, for appellant.
Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., Norman Mark Rapoport and Amie L. Clifford, Columbia, and Sol. Charles M. Condon, Charleston, for respondent.
Appellant was convicted of first degree criminal sexual conduct (CSC) with a minor and committing a lewd act upon a minor. He was sentenced to terms of thirty and ten years respectively. We affirm.
The victim, appellant's daughter, was ten years old at the time the alleged offenses were committed. She testified in great detail at trial that appellant forced her to perform fellatio and he penetrated her vagina with his finger or penis on several occasions. Appellant denied the allegations.
S.C.Code Ann. § 16-3-655(1) (1985) defines first degree CSC with a minor as a sexual battery on a victim less than eleven years of age. A sexual battery is an intrusion, however slight, of any part of the victim's body and includes sexual intercourse and fellatio. S.C.Code Ann. § 16-3-651(h) (1985). Appellant claims he was entitled to a charge on assault and battery of a high and aggravated nature (ABHAN) as a lesser included offense of first degree CSC with a minor. We disagree.
ABHAN may be a lesser included offense of first degree CSC with a minor when there is evidence the defendant committed only the lesser rather than the greater offense. State v. Mathis, 287 S.C. 589, 340 S.E.2d 538 (1986); see also State v. Goldenbaum, 294 S.C. 455, 365 S.E.2d 731 (1988); State v. Pressley, 292 S.C. 9, 354 S.E.2d 777 (1987); State v. Drafts, 288 S.C. 30, 340 S.E.2d 784 (1986). Here the evidence shows appellant committed a sexual battery as defined by § 16-3-651(h) or no battery at all. He was therefore not entitled to a charge of ABHAN.
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Boan v. Warden of Lee Corr. Inst.
...at 437 (2003) ("Under the evidence presented, respondent was guilty of a sexual battery or no battery at all."); State v. Forbes, 296 S.C. 344, 345, 372 S.E.2d 591, 592 (1988) ("Here the evidence shows appellant committed a sexual battery . . . or no battery at all."). Given that South Caro......
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State v. Dawkins, 2017-UP-442
...the evidence supported a finding that either the defendant was guilty of sexual battery and CSC or no battery at all); Forbes, 296 S.C. at 345, 372 S.E.2d at 592 (concluding the defendant was not entitled to a jury on ABHAN because the evidence showed either he committed sexual battery and ......
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State v. Dawkins, Appellate Case No. 2015-002254
...354 S.C. 646, 648, 583 S.E.2d 436, 437 (2003) (allowing ABHAN as a lesser included offense of CSC with a minor); State v. Forbes, 296 S.C. 344, 345, 372 S.E.2d 591, 592 (1988) ("ABHAN may be a lesser included offense of first[-]degree CSC with a minor when there is evidence the defendant co......
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Moultrie v. State, 25672.
...at all. In such a case, the defendant is not entitled to a charge of ABHAN as a lesserincluded offense of CSCM. State v. Forbes, 296 S.C. 344, 372 S.E.2d 591 (1988). Where there is no evidence to support an instruction on the lesser offense, a PCR applicant cannot show prejudice from the fa......