State v. Summers, 21382
| Decision Date | 21 January 1981 |
| Docket Number | No. 21382,21382 |
| Citation | 276 S.C. 11,274 S.E.2d 427 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Larry Eddie SUMMERS, Appellant. |
Hugh S. Roberts, of Kirkland, Aaron & Alley, and John W. Foard, Jr., Columbia, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Kay G. Crowe and Russell D. Ghent, Columbia, and Sol. Donald V. Myers, Lexington, for respondent.
Under an indictment charging only criminal sexual conduct in the first degree, the trial judge also submitted to the jury the issue of appellant's guilt of criminal sexual conduct in the second and third degrees on the theory that the latter were lesser included offenses of criminal sexual conduct in the first degree. Appellant was found guilty of criminal sexual conduct in the second degree and appeals. Two questions are presented: (1) Whether second and third degree criminal sexual conduct are lesser included offenses in a charge of first degree criminal sexual conduct and (2) whether error was committed in dealing with a request of the jury during their deliberations that they be allowed to listen again to portions of the testimony. We affirm.
Under Section 16-3-651 et seq., Supplement 1976 Code of Laws, the General Assembly has attempted to redraft and consolidate the statutory law relative to sexual offenses in this State. Section 16-3-651 defines certain terminology used in the statute. The term rape is not used but the sexual offenses are referred to as criminal sexual conduct.
Criminal sexual conduct is divided into degrees the first degree of the offense is defined in Section 16-3-652, the second degree in Section 16-3-653, and the third degree in Section 16-3-654, with the punishment varying according to the degree of the offense. The pertinent portions of these sections, setting forth the degrees of the offenses, are as follows:
Section 16-3-652. Criminal sexual conduct in the first degree.
(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.
Section 16-3-653. Criminal sexual conduct in the second degree.
(1) A person is guilty of criminal sexual conduct in the second degree if the actor uses aggravated coercion to accomplish sexual battery.
Section 16-3-654. Criminal sexual conduct in the third degree.
(1) A person is guilty of criminal sexual conduct in the third 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 force or coercion to accomplish the sexual battery in the absence of aggravating circumstances.
(b) The actor knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless and aggravated force or aggravated coercion was not used to accomplish sexual battery.
In State v. Fennell, 263 S.C. 216, 209 S.E.2d 433, we applied the general rule, as stated in 42 C.J.S., Indictments and Informations, Section 286, that a conviction may be had of an offense different from the one specifically charged only when such offense is an essential element of that charged and only when the greater offense charged includes all the legal and factual elements of the lesser offense. All of the quoted statutes deal with only the offense of criminal sexual conduct, and divides or classifies that offense into three grades according to the circumstances attending its commission. All of the statutes (degrees of the offense) require the common element of a sexual battery which is defined in Code Section 16-3-651(h). The only difference in the degrees of the crime is in the nature of the circumstances surrounding the commission of the sexual battery. The first degree requires the affirmative use of aggravated force, either upon the victim, or submission by the victim from the forceful, simultaneous commission of another designated offense or act; while the second degree only...
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State v. Carlson
...relating to the same factual issue so as not to give undue prominence to the evidence requested." Id. Similarly, in State v. Summers, 276 S.C. 11, 274 S.E.2d 427 (1981), overruled on other grounds by State v. McFadden, 342 S.C. 629, 539 S.E.2d 387 (2000), the jury requested to hear both the......
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...the indictment specifically charged armed robbery, which does not include all the elements of grand larceny. See State v. Summers, 276 S.C. 11, 274 S.E.2d 427 (1981) (conviction may be had of offense different from one specifically charged only when such offense is essential element of that......
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...the indictments only specifically charged armed robbery, which does not include all the elements of grand larceny. See State v. Summers, 276 S.C. 11, 274 S.E.2d 427 (1981) (conviction may be had of an offense different from the one specifically charged only when such offense is essential el......
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...penalty of twenty years. Section 16-3-653(2). Second-degree CSC is a lesser included offense of first-degree CSC. State v. Summers, 276 S.C. 11, 274 S.E.2d 427 (1981), overruled on other grounds by State v. McFadden, 342 S.C. 629, 539 S.E.2d 387 To convict a defendant of first-degree CSC, t......
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