State v. Gilmore

• Decision Date: 02 November 2011
• Docket Number: No. 4903.,4903.
• Citation: 719 S.E.2d 688,396 S.C. 72
• Parties: The STATE, Respondent, v. Willie Albert GILMORE, Appellant.
• Court: South Carolina Court of Appeals

396 S.C. 72

719 S.E.2d 688

The STATE, Respondent,

v.Willie Albert GILMORE, Appellant.

No. 4903.

Court of Appeals of South Carolina.

Heard May 3, 2011.Decided Nov. 2, 2011.

Appellate Defender Breen Stevens, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General William M. Blitch, Jr., and Solicitor W. Barney Giese, all of Columbia, for Respondent.

FEW, C.J.

Willie Albert Gilmore appeals his conviction for first-degree criminal sexual conduct (CSC). The central issue in the appeal is whether the trial court erred in declining to charge the jury on assault and battery of a high and aggravated nature (ABHAN) as a lesser-included offense. We hold the facts do not support an ABHAN charge. We also hold the trial court acted within its discretion in allowing the victim to testify regarding two statements Gilmore allegedly made during the sexual assault. We find two other issues raised by Gilmore to be unpreserved for appellate review. We affirm.

I. Facts and Procedural History

Gilmore and the victim knew each other for approximately ten years, dated each other for about six months, and lived together in Gilmore's house until three weeks before the crime. The victim testified that on the day of the crime she visited the house to check on furniture she left behind. Gilmore was not home when she arrived, so she talked with another woman for a short while until Gilmore returned. After the other woman left, Gilmore and the victim talked while Gilmore gave her a foot rub. The victim gave Gilmore money to go to the liquor store. Gilmore returned with a pint of gin, which they drank together. After they finished drinking the gin, Gilmore went to the back of the house to speak with a man who had stopped by, and the victim stayed in another room talking to a woman who was with the man. The victim testified that after the man and woman left, Gilmore came running at her in a rage and slapped her two or three times in the face. She later explained that Gilmore was angry because he thought she had said something to the woman about another man. She testified she attempted to leave after being slapped, but Gilmore would not allow it.

The victim then testified to the events of the sexual assault. Gilmore told the victim he wanted to have sex and pulled a knife. He forced her to remove her clothes and to pull a mattress into another room. He then raped her on the mattress. She testified that during the sexual assault he told her: “If I was like I was, Bitch, I would have killed you. You would be a dead Bitch,” and “I've killed one, and I'll kill again.”

At the conclusion of the presentation of evidence, Gilmore requested a charge for ABHAN as a lesser-included offense of CSC. The trial judge denied the request. The jury found Gilmore guilty of first-degree CSC, and the trial judge sentenced him to life in prison.

II. ABHAN as a Lesser–Included Offense

Gilmore contends on appeal there is evidence in the record from which the jury could have concluded he committed ABHAN and not CSC. We disagree. CSC in the first degree is defined by statute as follows: “the actor engages in sexual battery with the victim and ... (a) [t]he actor uses aggravated force to accomplish sexual battery.” S.C.Code Ann. § 16–3–652(1)(a) (Supp.2010). ABHAN is a lesser-included offense of first degree CSC. State v. Primus, 349 S.C. 576, 581, 564 S.E.2d 103, 106 (2002), overruled on other grounds by State v. Gentry, 363 S.C. 93, 106, 610 S.E.2d 494, 501 (2005). If there is evidence in the record from which the jury could infer the defendant is guilty of the lesser-included offense, rather than the crime charged, the trial judge must instruct the jury on the lesser-included offense. Dempsey v. State, 363 S.C. 365, 371, 610 S.E.2d 812, 815 (2005) ( “[A] judge is required to charge a jury on a lesser-included offense ‘if there is any evidence from which it could be inferred the lesser, rather than the greater, offense was committed.’ ” (quoting State v. Gourdine, 322 S.C. 396, 398, 472 S.E.2d 241, 242 (1996))).

In criminal cases, we review the decisions of the trial court only for errors of law. State v. Gibson, 390 S.C. 347, 353, 701 S.E.2d 766, 769 (Ct.App.2010). Therefore, in the context of a trial court's decision not to charge a requested lesser-included offense, we review the trial court's decision de novo. We must reverse and remand for a new trial if the evidence in the record is such that the jury could have found the defendant guilty of the lesser offense instead of the crime charged.

There is evidence in the record Gilmore committed ABHAN.¹ For example, the victim testified Gilmore slapped her “pretty hard” in the face two or three times, and a nurse testified the victim had swelling on the side of her face. The victim also testified Gilmore grabbed her after the rape and after he washed up, and thus prevented her from leaving the house. See State v. Whitten, 375 S.C. 43, 46, 649 S.E.2d 505, 507 (Ct.App.2007) (stating “ ‘ABHAN is the unlawful act of violent injury to another accompanied by circumstances of aggravation,’ ” including “ ‘the intent to commit a felony, infliction of serious bodily injury, ... [and] a difference in gender’ ” (quoting State v. Fennell, 340 S.C. 266, 274, 531 S.E.2d 512, 516–17 (2000))). The mere existence of evidence of ABHAN, however, is not sufficient to require the jury charge. Rather, there must be evidence the defendant committed ABHAN instead of CSC. Dempsey, 363 S.C. at 371, 610 S.E.2d at 815.

Our courts have identified three types of cases in which the evidence can support an inference that the defendant is guilty of ABHAN instead of CSC: (1) there is evidence the defendant committed ABHAN by an unlawful sexual touching in the course of attempting CSC, and there is conflicting evidence as to whether the defendant accomplished sexual battery; see, e.g., State v. Pressley, 292 S.C. 9, 9–10, 354 S.E.2d 777, 777 (1987); State v. Mathis, 287 S.C. 589, 594, 340 S.E.2d 538, 541 (1986); (2) there is evidence the defendant committed a nonsexual ABHAN, such as in a fight, and in addition to evidence to support CSC, there is evidence the two never had sex; see, e.g., State v. Lambright, 279 S.C. 535, 537, 309 S.E.2d 7, 8 (1983); and (3) there is evidence the defendant committed a nonsexual ABHAN contemporaneous with CSC, but there is evidence that instead of CSC the two had consensual sex; see, e.g., State v. White, 361 S.C. 407, 412, 605 S.E.2d 540, 542–43 (2004).

In this third type of case, which this case involves, the evidence must support the existence of two conditions before the trial judge is required to charge the jury on the lesser-included offense of ABHAN. First, the nonsexual ABHAN must have occurred “contemporaneously” with the alleged CSC. Compare White, 361 S.C. at 412–13, 605 S.E.2d at 542–43 (ABHAN charge required because ABHAN occurred “contemporaneously” with alleged CSC) with Dempsey, 363 S.C. at 371, 610 S.E.2d at 815 (evidence of ABHAN on occasions not contemporaneous with alleged CSC did not warrant ABHAN charge). Second, there must be evidence that the victim consented to have sex. This requirement is illustrated in our opinion in State v. White, 353 S.C. 566, 572, 578 S.E.2d 728, 731 (Ct.App.2003), and in the supreme court's opinion affirming. 361 S.C. at 413, 605 S.E.2d at 543. In White, it was not possible for the defendant to be guilty of ABHAN instead of CSC unless there was evidence of consensual sex. 361 S.C. at 412, 605 S.E.2d at 543.² Without evidence of consent, the ABHAN would have been in addition to CSC. See id.

The rationale for both of the required conditions is that if either condition does not exist, the evidence will not support the inference the ABHAN occurred instead of the CSC. Rather, if either condition does not exist, the ABHAN necessarily occurred in addition to the CSC. In this case, the evidence supports the existence of the first condition: the ABHAN was contemporaneous. Gilmore slapped the victim within minutes before, and “ grabbed” her within minutes after, the alleged CSC.³ The second question is much more difficult. However, we find insufficient evidence to support a finding of consensual sex.

In all of the cases in which our appellate courts have found evidence of consensual sex, the defendant testified directly that the sex was consensual. See, e.g., White, 361 S.C. at 412, 605 S.E.2d at 543 (“White's testimony that he and the victim engaged in consensual sex, the victim stabbed him, and he hit the victim in the eye, is evidence from which the jury could infer White committed ABHAN rather than CSC.”). Here, however, Gilmore did not testify. The only other eyewitness to the alleged CSC was the victim, who testified the sex was not consensual. Therefore there is no direct evidence that the victim consented to have sex.⁴

Because there is no direct evidence that the victim consented to sex, we must determine whether circumstantial evidence of consensual sex required the charge on ABHAN. In making this determination, we are mindful that our conclusion must be based on the existence of evidence, and not simply on the possibility that the jury might not have believed the evidence offered by the State. See State v. Patterson, 337 S.C. 215, 232, 522 S.E.2d 845, 854 (Ct.App.1999) (On appeal from the denial of a directed verdict motion, the court stated “[i]t is irrelevant that the jury might have disbelieved any portion of the evidence because that involves the weight of the evidence.”); State v. Franks, 376 S.C. 621, 624, 658 S.E.2d 104, 106 (Ct.App.2008) (“ ‘The mere contention that the jury might accept the State's evidence in part and reject it in part is insufficient to satisfy the requirement that some evidence tend to show the defendant was guilty of only the lesser offense.’ ” (quoting State v. Geiger, 370 S.C. 600, 608...