State v. Wetherall

• Decision Date: 15 June 2009
• Docket Number: 2009-UP-340
• Parties: The State, Respondent, v. Donald Thomas Wetherall, Appellant.
• Court: South Carolina Court of Appeals

The State, Respondent, v. Donald Thomas Wetherall, Appellant.

No. 2009-UP-340

Court of Appeals of South Carolina

June 15, 2009

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE RECITED OR RELIED ON IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Submitted June 1, 2009

Appeal From Laurens County J. Cordell Maddox, Jr., Circuit Court Judge

Appellate Defender Kathrine H. Hudgins, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, of Columbia, for Respondent.

PER CURIAM

Donald Thomas Wetherall appeals from a jury verdict finding him guilty of (1) assault with intent to commit first-degree criminal sexual conduct (ACSC) with a minor and (2) committing a lewd act upon a child. Wetherall argues the circuit court erred in submitting the ACSC charge to the jury and in denying his request to present evidence of the victim's medical history. We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities:

1. Regarding Wetherall's claim the circuit court erred in submitting the ACSC charge to the jury: State v Cribb, 310 S.C. 518, 523, 426 S.E.2d 306, 309 (1992) (internal citations omitted) ("A lesser included offense is one that requires no proof beyond that which is required for conviction of the greater offense. The greater offense must include all the elements of the lesser."); State v. Sosbee, 371 S.C. 104, 109, 637 S.E.2d 571 573 (Ct. App. 2006) ("An assault with intent to commit criminal sexual conduct with a minor in the first-degree is more aptly designated as an 'attempt' to commit criminal sexual conduct with a minor."); State v. Brock, 335 S.C. 267, 272, 516 S.E.2d 212, 214-15 (Ct. App. 1999) (stating the offense of ACSC first-degree with a minor requires the victim to be under the age of eleven, an assault to occur, and "the perpetrator must act with intent to commit a sexual battery").

2. Regarding Wetherall's claim the circuit court erred in failing to allow him to present evidence of medical tests conducted on the victim two years after his alleged criminal acts: State v. Brock, 335 S.C. 267, 272, 516 S.E.2d 212, 215 (Ct. App. 1999) (citing State v. Aiken, 322 S.C. 177, 470 S.E.2d 404 (Ct. App. 1996)) ("The admission or rejection of evidence is largely within the sound discretion of...