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State v. Primus5/20/2002
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Heard April 4, 2002
AFFIRMED IN PART; REVERSED IN PART.
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?
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, 345 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 battery or forcible confinement, kidnapping, robbery, extortion, burglary, housebreaking, or any other similar offense or act. 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. 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
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