State v. Lambright

• Decision Date: 09 November 1983
• Docket Number: No. 22003,22003
• Citation: State v. Lambright, 279 S.C. 535, 309 S.E.2d 7 (S.C. 1983)
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Bernard LAMBRIGHT, Appellant.

Page 7

309 S.E.2d 7

279 S.C. 535

The STATE, Respondent, v.Bernard LAMBRIGHT, Appellant.

No. 22003.

Supreme Court of South Carolina.

Nov. 9, 1983.

Asst. Appellate Defender Elizabeth C. Fullwood, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Retired Atty. Gen. Daniel R. McLeod, and Asst. Atty. Gen. Harold M. Coombs, Jr., Columbia, and Sol.Robert J. Harte, Aiken, for respondent.

LITTLEJOHN, Justice:

The Defendant-Appellant, Bernard Lambright, was tried by a jury and convicted of: (1) burglary, and (2) criminal sexual assault in the first degree.The trial judge sentenced him to life imprisonment on the burglary count and thirty years in prison for the criminal sexual assault count, suspended upon serving twenty years with five years probation.The sentences run concurrently.

Lambright has appealed, submitting to the Court two errors on the part of the trial judge, raising questions as copied from counsel's brief as follows:

I.Did the lower court err in refusing to charge the jury on assault and battery of a high and aggravated nature when appellant's testimony tended to prove that this offense rather than criminal sexual conduct had occurred?

II.Did the State present evidence of a breaking sufficient to support a conviction for burglary?

We hold that the trial judge should have charged the law of assault and battery of a high and aggravated nature and reverse and remand for a new trial.We affirm the conviction and sentence for burglary.

It was the contention of the State, as substantiated by testimony of victim, Betty Sue Demons, that Lambright came to her house in the nighttime and attempted to gain entrance three times after knocking on the door.Ms. Demons was acquainted with him and refused to let him in.Her doors were locked.Later, he appeared in the doorway of her bedroom, brutally assaulted her, and accomplished by force a sexual act by actual penetration.He was cut with a pair of scissors in the affray.

It is the contention of Lambright that he was allowed to enter the home with Ms. Demons' permission.They sat on the couch where difficulty arose, and she struck him.He began to strike back and bite her.He denied having sexual intercourse with the prosecuting witness.

Criminal sexual conduct in the first degree is described in S.C.Code Ann. § 16-3-652(Cum.Supp.1982) as follows:

(1) A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven:

(a) The actor uses aggravated force to accomplish sexual battery.

(b) The victim submits to sexual battery by the actor under circumstances where the victim is also the victim of forcible confinement, kidnapping, robbery, extortion, burglary, housebreaking, or any other similar offense or act.

"Aggravated force" is defined in S.C.Code Ann. § 16-3-651(c)(Cum.Supp.1982), as:

Mean[ing] that the actor uses physical force or physical violence of a high and aggravated nature to overcome the victim or includes the threat of the use of a deadly weapon.

When the evidence is susceptible of the inference that an accused person is guilty of only a lesser included offense, it is the duty of the trial judge to charge the lesser offense so the jury may choose.If the evidence given...