The STATE, Respondent, v. Clyde ELLIOTT, Appellant

South Carolina Court of Appeals1999-05-03No. No. 2987

335 S.C. 512517 S.E.2d 713

Summary · law.co

Holding. The court vacated Elliott's ABHAN conviction because assault and battery of a high and aggravated nature is not a lesser included offense of assault with intent to commit criminal sexual conduct in the third degree, as the former requires battery as an element while the latter does not.

Clyde Elliott was indicted for assault with intent to commit criminal sexual conduct in the third degree. At trial, the court instructed the jury on assault and battery of a high and aggravated nature (ABHAN) as a lesser included offense, and the jury convicted Elliott of ABHAN rather than the charged offense. Elliott appealed, arguing the trial court lacked authority to convict him of ABHAN.

The court agreed with Elliott's argument. For a trial court to convict a defendant of a lesser offense when the indictment charges a greater crime, the lesser offense must contain all the same elements as the greater offense. ABHAN requires proof of battery—a completed act of violence or touching—but assault with intent to commit criminal sexual conduct in the third degree does not require battery as an element. Because ABHAN lacks this connection to the charged offense, it cannot function as a lesser included offense, and the trial court had no jurisdiction to enter a conviction for it.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

whether ABHAN qualifies as a lesser included offense of assault with intent to commit CSC third degree
whether battery is a required element of assault with intent to commit criminal sexual conduct
whether trial court had subject matter jurisdiction to convict of a charge not indicted and not a valid lesser included offense

Procedural posture

Elliott appealed his conviction for ABHAN following a trial in which he was indicted for assault with intent to commit criminal sexual conduct in the third degree.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

GOOLSBY, Justice:

Clyde Elliott appeals his conviction for assault and battery of a high and aggravated nature (ABHAN). We vacate.

FACTS

On June 23, 1997, a Colleton County grand jury indicted Clyde Elliott on one count of assault with intent to commit criminal sexual conduct (CSC) in the first degree. At trial, the indictment was amended to assault with intent to commit CSC in the third degree. In addition to an appropriate instruction on assault with intent to commit CSC third, however, the trial court instructed the jury on ABHAN as a lesser included offense. Elliott did not object to the court’s charge. The jury subsequently convicted Elliott of ABHAN, and the trial court sentenced him to seven years imprisonment, suspended on service of four and two years probation. Elliott now appeals.

DISCUSSION

Elliott argues the trial court lacked subject matter jurisdiction to convict and sentence him for ABHAN, because ABHAN is not a lesser included offense of assault with intent to commit CSC third. We agree.

In order for the trial court to have jurisdiction to convict Elliott for ABHAN when he was indicted for assault with intent to commit CSC third, ABHAN would have to be a lesser included offense of assault with intent to commit CSC third. Murdock v. State, 308 S.C. 143, 144, 417 S.E.2d 543, 544 (1992) (circuit court does not have subject matter jurisdiction to convict a defendant “unless there has been an indictment, a waiver of indictment, or unless the charge is a lesser included offense of the crime charged in the indictment”). ABHAN can be a lesser included offense of assault with intent to commit CSC third only if assault with intent to commit CSC third contains all the elements of ABHAN. Carter v. State, 329 S.C. 355, 362, 495 S.E.2d 773, 777 (1998) (“The test for determining when a crime is a lesser included offense is whether the greater of the two offenses includes all the elements of the lesser offense.”).

One element of ABHAN is a battery. State v. Murphy, 322 S.C. 321, 325, 471 S.E.2d 739, 741 (Ct.App.1996) (holding ABHAN includes an element of “a completed act of violence” or “touching of the victim”). Battery, however, is not an element of assault with intent to commit CSC third. State v. Morris, 289 S.C. 294, 295 n. 1, 345 S.E.2d 477, 477 n. 1 (1986) (“ ‘Assault with intent to commit criminal sexual conduct ... shall be punishable as if the criminal sexual conduct was committed.’ Battery is thus not a necessary element of this offense.... ”). Consequently, ABHAN cannot be a lesser included offense of assault with intent to commit CSC third, and the circuit court was without jurisdiction to convict Elliott of ABHAN.

VACATED.

HOWELL, C.J., and CONNOR, JJ., concur.

. S.C.Code Ann. § 16-3-656 (1985).

. In State v. Morris, the South Carolina Supreme Court stated in dicta that ABHAN was properly submitted to the jury as a lesser included offense under” an indictment for assault with intent to commit CSC first. Morris at 295 n. 1, 345 S.E.2d at 477 n. 1. The indictment in State v. Morris, however, alleged assault and battery ... with intent to commit a sexual battery.” Compare Record on Appeal at 77, Morris, (No. 22561) with Morris at 295 n. 1, 345 S.E.2d at 477 n. 1. Here there is no allegation of a battery in the indictment.