State v. Primus

• Decision Date: 20 May 2002
• Docket Number: No. 25471.,25471.
• Citation: 564 S.E.2d 103,349 S.C. 576
• Court: South Carolina Supreme Court
• Parties: The STATE, Petitioner, v. James Anthony PRIMUS, Respondent.

349 S.C. 576

564 S.E.2d 103

The STATE, Petitioner, v. James Anthony PRIMUS, Respondent.

No. 25471.

Supreme Court of South Carolina.

Heard April 4, 2002.

Decided May 20, 2002.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Robert E. Bogan, Assistant Attorney General Melody J. Brown, all of Columbia; and Solicitor Walter M. Bailey, of Summerville, for petitioner.

Chief Attorney Daniel T. Stacey, of South Carolina Office of Appellate Defense; and Katherine Carruth Link, both of Columbia, for respondent.

Justice BURNETT.

Respondent James Anthony Primus (Primus) was indicted on charges of first degree criminal sexual conduct (CSC) and kidnapping. He was convicted of kidnapping and assault and battery of a high and aggravated nature (ABHAN) and sentenced to consecutive terms of thirty years and ten years, respectively. The Court of Appeals reversed. State v. Primus, 341 S.C. 592, 535 S.E.2d 152 (Ct.App.2000). The Court granted a writ of certiorari to review the Court of Appeals' decision. We affirm in part and reverse in part.

ISSUES

I. Did the trial court have subject matter jurisdiction to convict Primus of ABHAN under an indictment for first degree CSC?¹

II. Did the Court of Appeals err by concluding the assistant solicitor's comment during closing argument about Primus' failure to call his uncle as a witness was prejudicial error?

DISCUSSION

I.

Did the trial court have subject matter jurisdiction to convict Primus of ABHAN under an indictment for first degree CSC?

The circuit court does not have subject matter jurisdiction to convict a defendant of an offense unless there is an indictment which sufficiently states the offense, the defendant waives presentment, or the offense is a lesser included offense of the crime charged in the indictment. State v. Owens, 346 S.C. 637, 552 S.E.2d 745 (2001). 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. State v. McFadden, 342 S.C. 629, 539 S.E.2d 387 (2000). If the lesser offense includes an element which is not included in the greater offense, then the lesser offense is not included in the greater offense. Hope v. State, 328 S.C. 78, 492 S.E.2d 76 (1997). While the Court recognizes the existence of a few anomalies, it generally adheres to use of the traditional elements test. State v. Elliott, 346 S.C. 603, 552 S.E.2d 727 (2001).

Under South Carolina Code Ann. § 16-3-652(1)(a)(b) (Supp. 2001), first degree CSC requires a(1) a sexual battery and (2) aggravated force to accomplish the sexual battery² or forcible confinement, kidnapping, robbery, extortion, burglary, housebreaking, or any other similar offense or act.³ A sexual battery is "statutorily defined to include only certain specific acts, which can be loosely described as involving penetration of some sort." State v. Elliott, supra 346 S.C. at 606, 552 S.E.2d at 729; S.C.Code Ann. § 16-3-651(h) (1985).

ABHAN is an unlawful act of violent injury accompanied by circumstances of aggravation. State v. Fennell, 340 S.C. 266, 531 S.E.2d 512 (2000). "Circumstances of aggravation" is an element of ABHAN. Knox v. State, 340 S.C. 81, 530 S.E.2d 887 (2000). Circumstances of aggravation include the use of a deadly weapon, the intent to commit a felony, infliction of serious bodily injury, great disparity in the ages or physical conditions of the parties, a difference in gender, the purposeful infliction of shame and disgrace, taking indecent liberties or familiarities with a female, and resistance to lawful authority. State v. Fennell, supra.

"Circumstances of aggravation" is an element of ABHAN not included in first degree CSC.⁴ See Knox v. State, supra

("circumstances of aggravation" is an element of ABHAN not included in second degree lynching, therefore, ABHAN is not a lesser included offense). Furthermore, even though a circumstance of aggravation may constitute an element in first degree CSC under the facts of a particular case (i.e., use of a deadly weapon), because all of the circumstances of aggravation are not elements of first degree CSC, ABHAN is not a lesser included offense. See id. (even though second degree lynching includes two circumstances of aggravation that may establish ABHAN, ABHAN is not lesser included offense because there are other circumstances of aggravation that are not included in second degree lynching); State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997) (because each circumstance of aggravation for ABHAN is not always a necessary element of felony DUI, ABHAN is not a lesser included offense of felony driving under the influence). Accordingly, employing the traditional elements test, ABHAN is not a lesser included offense of first degree CSC.

Nevertheless, the Court most recently determined that because it had consistently held ABHAN is a lesser included offense of assault with intent to commit CSC, it would continue this ruling even though the two offenses failed the traditional elements test. State v. Elliott, supra.

Similarly, the Court has repeatedly held ABHAN is a lesser included offense of first degree CSC. State v. Frazier, 302 S.C. 500, 397 S.E.2d 93 (1990); State v. Pressley, 292 S.C. 9, 354 S.E.2d 777 (1987); 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); State v. Lambright, 279 S.C. 535, 309 S.E.2d 7 (1983). In order to have a uniform approach to CSC and ABHAN offenses, we likewise hold ABHAN is a lesser included offense of first degree CSC.

II.

Did the Court of Appeals err by concluding the assistant solicitor's comment during closing argument about Primus' failure to call his uncle as a witness was prejudicial error?

At trial, the State presented evidence that Primus forced the victim into an abandoned home and raped her. Through the testimony of a police detective, the State introduced Primus' statement to the police; Primus cross-examined the detective. According to the detective, Primus stated he had breakfast at Shoney's and then visited his uncle, Joe Hodges, at the time the assault occurred. Primus rested his case without testifying or offering any witnesses in his defense.

During closing argument the following transpired:

Assistant Solicitor: And the crucial period when Detective Bills told you he was most interested in was this Shoney's and Uncle Joe Hodges' house. Of course, you can't hold the fact that Mr. Primus didn't present any evidence against him, but don't you think that would have made his alibi a lot stronger if Joe Hodges, his own uncle, had come to court and said, oh, he couldn't have been on Gum Branch Road raping this woman because he was at my house in Corey Woods?

Defense Counsel: I have an objection, your Honor. We don't have to bring those people to court, Judge.

The Court: I'll be telling you later on, I give each attorney a lot of leeway in making their summation to you and I'll be telling you the defendant doesn't have to do anything, doesn't have to prove anything, but I'll be explaining more to you later. Go ahead, Solicitor.

(Emphasis added).

In his final jury instructions, the trial judge charged the jury Primus had the constitutional right not to testify or offer evidence. In addition, he instructed the jury the State had the burden to prove Primus' guilt beyond a reasonable doubt.

The Court of Appeals reversed Primus' convictions. It concluded that by referring to Primus' failure to call his uncle as a witness, the assistant solicitor improperly commented on Primus' right to rely on his constitutional presumption of innocence and on the State's burden to establish his guilt beyond a reasonable doubt. State v. Primus, supra.

The Court of Appeals further found the above-referenced jury charge did not cure the assistant solicitor's error. Id. Finally, the Court of Appeals concluded the comment was not harmless in light of the lack of overwhelming evidence against Primus. Id.

A.

Did the Court of Appeals err by holding that, because Primus did not present evidence in his defense, the assistant solicitor improperly commented in closing argument upon his failure to call his uncle to corroborate his alibi defense?

The State contends the Court of Appeals erred by holding that, because Primus did not present evidence in his defense, the assistant solicitor improperly commented in closing argument upon his failure to call his uncle to corroborate his alibi defense. The State claims Primus "chose to actively pursue an alibi defense" by giving a statement to police detailing an alibi, cross-examining the witnesses about his alibi, requesting an alibi charge, and arguing alibi in his closing argument and, therefore, the assistant solicitor was not prohibited from commenting on Primus' failure to call his uncle in support of his alibi. We disagree.

The State did not raise this issue in its brief to the Court of Appeals. Instead, it argued the comment was cured by the trial judge's charge and was, at most, harmless error in light of the evidence against Primus. The State offered its present argument for the first time in its petition for rehearing. Because the State failed to raise its current argument in its brief to the Court of Appeals, the issue is not properly preserved for this Court's consideration on writ of certiorari. Rule 226(d)(2), SCACR (only questions raised in the Court of Appeals and in the petition for rehearing shall be included in the petition for a writ of certiorari); see Video Gaming Consultants, Inc. v. South Carolina Dep't of Revenue, 342 S.C. 34, 535 S.E.2d 642 (2000)

(issue not argued in brief is deemed abandoned and precludes consideration on appeal).

In any event, when the accused neither testifies nor offers any witnesses, it is error for the solicitor to comment upon the defendant's failure to call witnesses on his behalf. State v. Posey, 269...