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State v. Primus5/20/2002
ubt. State v. Huggins, 325 S.C. 103, 481 S.E.2d 114 (1997), citing Donnelly v. DeChristoforo, 416 U.S. 637 (1974) (new trial will not be granted unless prosecutor's comments so infected trial with unfairness as to make the resulting conviction a denial of due process).
In conclusion, we AFFIRM IN PART and REVERSE IN PART.
TOAL, C.J., MOORE, J., and Acting Justice George T. Gregory, Jr., concur. PLEICONES, J., concurring in part and dissenting in part in a separate opinion.
JUSTICE PLEICONES: I concur in part and dissent in part. I would hold that assault and battery of a high and aggravated nature (ABHAN) is not a lesser-included offense of first degree criminal sexual conduct and would vacate Primus's ABHAN conviction. See State v. Elliott, 346 S.C. 603, 552 S.E.2d 727 (2001)(Pleicones, J., dissenting). I agree with the majority's conclusion that the assistant solicitor's improper statement in closing argument does not warrant a new trial.
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