State v. Frazier

Decision Date02 May 1989
Docket NumberNo. 23276,23276
Citation397 S.E.2d 93,302 S.C. 500
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. Bobby FRAZIER, Appellant. . Heard

Asst. Appellate Defender Tara D. Shurling, of S.C. Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Amie L. Clifford, Columbia, and Sol. Randolph Murdaugh, III, Hampton, for respondent.

TOAL, Justice:

Bobby Frazier was convicted of assault with intent to commit criminal sexual conduct in the first degree and assault and battery of a high and aggravated nature (ABHAN). He received a ten year and twenty year sentence to be served consecutively. On appeal, he contends that his conviction and sentence for both offenses violated the constitutional prohibitions against double jeopardy. We disagree and affirm.

FACTS

On June 24, 1987, Sheila Oliphant went to the IGA to use the pay telephone. At approximately 11:00 p.m., she completed her call and began to walk home. Frazier ran up behind her and grabbed her. They struggled and Frazier began to choke the victim. She got loose enough to turn around and face him. She told him that he should let her go because she had seen his face. Frazier dragged her into the woods, ripped her shorts, pulled off her underwear and loosened his own pants. Frazier stopped when he noticed the headlights of an approaching car. At that point, the victim said, "I told him he going [sic] to have to kill me before he rape [sic] me"; appellant replied, "I'm going to kill you anyway." (Emphasis added). Appellant then put his knee on the victim's chest and began choking her but fled when the car headlights did not move away.

Frazier was indicted and tried for criminal sexual conduct in the first degree and assault and battery with intent to kill (ABIK). The trial court directed a verdict of acquittal on the first degree charge of criminal sexual conduct. The jury was instructed on the offenses of assault with intent to commit criminal sexual conduct in the first degree, ABIK and ABHAN.

Defense counsel objected to the charge of ABIK on the theory that the facts only support one offense and, therefore, the defendant would receive a double penalty for the commission of one crime. In rejecting defense counsel's argument, the trial judge reasoned that the jury could adopt several positions and find that the facts support the conviction for two separate acts. "The first attack being for the purpose of the intent to commit criminal sexual conduct, and then the choking and holding down with the knee on the chest and the threat of the killing as assault and battery with intent to kill to secrete himself from the car lights across the street."

As noted above, the jury returned a verdict of guilty of both assault with intent to commit criminal sexual conduct in the first degree and ABHAN.

Frazier contends that his conviction and punishment for both offenses violate the constitutional prohibitions against double jeopardy. We disagree.

The Double Jeopardy Clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Constitution Amend. V. It is the opinion of this Court that the facts in this case support the jury's finding that two offenses were committed and therefore Frazier's trial for and conviction of both offenses did not violate the constitutional prohibition against double jeopardy.

The offense of assault with intent to commit criminal sexual conduct in the first degree is an assault accompanied by (1) the intent to engage in sexual battery and (2) the intent to either use aggravated force to accomplish sexual battery or to have the victim submit to sexual battery under circumstances where the victim is also the victim of forcible confinement, kidnapping, robbery, extortion or burglary. S.C.Code Ann. §§ 16-3-652 and 16-3-656 (Cum.Supp.1987). The common law offense of assault and battery of a high and aggravated nature is an unlawful act of violent injury to the person of another, accompanied by circumstances of aggravation. State v. Cunningham, 253 S.C. 388, 171 S.E.2d 159 (1969); State v. Moore, 245 S.C. 416, 140 S.E.2d 779 (1965). In numerous opinions, this Court has set out examples of circumstances of aggravation which include: the use of a deadly weapon, the infliction of serious bodily injury, the intent to commit a felony, great disparity between the ages and physical conditions of the parties involved and the difference in the sexes. See, State v. Brown, 269 S.C. 491, 238 S.E.2d 174 (1977); State v. Cunningham, supra.

While we recognize that ABHAN is a lesser included offense of criminal sexual conduct in the first degree, State v. Mathis, 287 S.C. 589, 340 S.E.2d 538 (1986); State v. Drafts, 288 S.C. 30, 340 S.E.2d 784 (1986), the facts of this case, as specifically recognized by the trial judge, support the convictions for two separate acts. Frazier was not convicted of two offenses for the commission of one act. Rather, he was found guilty of committing two separate crimes. The assault with intent to commit criminal sexual conduct occurred when Frazier grabbed the victim, forced her into the woods and ripped her clothes in an effort to commit a sexual battery. The ABHAN occurred when Frazier put his knee on the victim's chest, one hand around her neck and told her he was going to kill her. From the facts of this case, it may be reasonably inferred appellant abandoned his attempt to rape the victim then assaulted her in an attempt to silence...

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13 cases
  • State v. LaCoste
    • United States
    • South Carolina Court of Appeals
    • September 4, 2001
    ...and AHAN specifically include the term "violent" within their definitions, while first degree CSC does not. See State v. Frazier, 302 S.C. 500, 502, 397 S.E.2d 93, 94 (1990) (ABHAN is an unlawful act of violent injury to the person of another, accompanied by circumstances of aggravation; AB......
  • State v. Geiger
    • United States
    • South Carolina Court of Appeals
    • September 25, 2006
    ...or familiarities with a female, purposeful infliction of shame and disgrace, and resistance to lawful authority. State v. Frazier, 302 S.C. 500, 397 S.E.2d 93 (1990); State v. Tyndall, 336 S.C. 8, 21, 518 S.E.2d 278, 285 (Ct.App.1999); State v. Murphy, 322 S.C. 321, 471 S.E.2d 739 ABHAN is ......
  • State v. Elliott
    • United States
    • South Carolina Supreme Court
    • September 4, 2001
    ...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 sub......
  • State v. Brown
    • United States
    • South Carolina Supreme Court
    • August 30, 2004
    ...her 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......
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