State v. Dawkins, 2017-UP-442

The State, Respondent, v. Brad Bernard Dawkins, Appellant.

Appellate Case No. 2015-002254

No. 2017-UP-442

Court of Appeals of South Carolina

November 29, 2017

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Heard September 20, 2017

Appeal From Laurens County Eugene C. Griffith, Jr., Circuit Court Judge

Miller W. Shealy, Jr., of Miller Shealy Law Firm, of Charleston, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General Vann Henry Gunter, Jr., both of Columbia, and Solicitor David Matthew Stumbo, of Greenwood, all for Respondent.

PER CURIAM

Appellant Brad Bernard Dawkins appeals his convictions for lewd act upon a minor (lewd act) and second-degree criminal sexual conduct with a minor (CSC with a minor), arguing the trial court erred by (1) refusing to charge the jury on the lesser included offense of assault and battery of a high and aggravated nature (ABHAN), (2) denying his motion for a directed verdict, and (3) allowing the State to make improper comments during its closing argument. We affirm.

1. We find the trial court did not abuse its discretion by refusing to charge the jury on the lesser included charge of ABHAN. First, we agree with Dawkins that ABHAN is a lesser included offense of CSC with a minor because our courts have traditionally made such a finding. See State v Geiger, 370 S.C. 600, 606, 635 S.E.2d 669, 672 (Ct. App. 2006) (explaining a crime may be a lesser included offense if it "has traditionally been considered a lesser included offense of the greater"); State v. Gilmore, 396 S.C. 72, 76, 719 S.E.2d 688, 690 (Ct. App. 2011) ("ABHAN is a lesser[]included offense of first[-]degree CSC."); Moultrie v. State, 354 S.C. 646, 648, 583 S.E.2d 436, 437 (2003) (allowing ABHAN as a lesser included offense of CSC with a minor); State v. Forbes, 296 S.C. 344 345, 372 S.E.2d 591, 592 (1988) ("ABHAN may be a lesser included offense of first[-]degree CSC with a minor when there is evidence the defendant committed only the lesser rather than the greater offense.").

Next although ABHAN may be a lesser included offense of CSC with a minor, we find the trial court did not abuse its discretion by refusing to charge the jury on ABHAN. See State v Stanko, 402 S.C. 252, 264, 741 S.E.2d 708, 714 (2013) ("[An appellate court] will not reverse a trial court's decision regarding a jury instruction absent an abuse of discretion."); State v. Lemire, 406 S.C. 558, 565, 753 S.E.2d 247, 251 (Ct. App. 2013) ("An abuse of discretion occurs when the trial court's ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support." (quoting Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000))). After thoroughly considering the evidence presented during Dawkins's trial, we find the evidence did not support a finding that he committed ABHAN rather than CSC with a minor. See State v. Brown, 362 S.C. 258, 262, 607 S.E.2d 93, 95 (Ct. App. 2004) ("If there is any evidence to support a jury charge, the trial [court] should grant the request."); State v. Crosby, 355 S.C. 47, 51, 584 S.E.2d 110, 112 (2003) ("A trial court should refuse to charge a lesser[]included offense only whe[n] there is no evidence the defendant committed the lesser rather than the greater offense." (emphasis added)).

To the extent Dawkins claims he was entitled to a charge on ABHAN because the jury could have believed and disbelieved parts of the victim's testimony, we disagree. The victim's testimony regarding events prior to November 30, 2009, if believed by the jury, amounted to sexual battery and CSC with a minor. In his defense, Dawkins testified the victim's allegations were untrue. Based on this evidence, with regard to the victim's allegations of their encounters prior to November 30, 2009, Dawkins either committed sexual battery and CSC with a minor or no battery at all. Thus, he was not entitled to a jury charge on the lesser included offense of ABHAN. See Moultrie, 354 S.C. at 648, 583 S.E.2d at 437 (finding the defendant was not entitled to a jury charge on the lesser included offense of ABHAN because the evidence supported a finding that either the defendant was guilty of sexual battery and CSC or no battery at all); Forbes, 296 S.C. at 345, 372 S.E.2d at 592 (concluding the defendant was not entitled to a jury charge on ABHAN because the evidence showed either he committed sexual battery and was guilty of CSC or he committed no battery at all).

Additionally to the extent Dawkins argues the victim's testimony regarding their specific interaction on November 30, 2009, could have amounted to ABHAN, rather than CSC with a minor, because the victim admitted there was no penetration during that encounter, we find he was not entitled to a jury charge on ABHAN as a lesser included offense. See Gilmore, 396 S.C. at 78-79, 719 S.E.2d at 691 (explaining a defendant is not entitled to a jury charge on ABHAN as a lesser included offense when the evidence supports a conclusion the ABHAN occurred in addition to the CSC). In Dempsey v. State, the defendant claimed he was entitled to a jury charge on ABHAN because there was evidence he physically abused the victim in a nonsexual way. 363 S.C. 365, 371, 610 S.E.2d 812, 815 (2005). However, our supreme court disagreed because the evidence of nonsexual, physical abuse was in addition to the evidence of several independent, noncontemporaneous instances of alleged CSC. Id. Thus, the court concluded that although there was "evidence of conduct that could be construed as ABHAN, none of these incidents was alleged to have occurred instead of the" instances of CSC. Id. In this case, although the evidence surrounding the encounter on November 30, 2009, may have supported a finding of ABHAN, it merely supported a finding that ABHAN occurred in addition to the prior instances of alleged CSC with a minor. Under such circumstances, Dawkins was not entitled to a jury charge on ABHAN as a lesser included offense of CSC...