State v. Geiger

370 S.C. 600

635 S.E.2d 669

The STATE, Respondent, v. Eddie GEIGER, Appellant.

No. 4151.

Court of Appeals of South Carolina.

Submitted September 1, 2006.

Decided September 25, 2006.

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Assistant Appellate Defender Tara S. Taggart, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Deborah R.J. Shupe, and Solicitor Warren B. Giese, all of Columbia, for Respondent.

ANDERSON, J.:

Eddie Geiger (Geiger) was convicted of assault with intent to commit first degree sexual conduct (ACSC) and sentenced to life imprisonment without parole. Geiger appeals, arguing the trial court erred in refusing his request to charge the jury with assault and battery of a high and aggravated nature (ABHAN) as a lesser included offense. We affirm.¹

FACTUAL/PROCEDURAL BACKGROUND

In the early morning hours of January 31, 2003, Annie J. placed a 911 call reporting she had been sexually assaulted in her home. The responding law enforcement officials and emergency medical technicians arrived at the abode to find the nearly seventy-year-old woman recently battered and cut, very frightened and with blood on her face. Geiger's driver's license was found on the coffee table and his clothing was discovered in the bathroom. Before being sent to the hospital, Annie J. identified Geiger as her assailant.

Geiger was arrested and indicted for ACSC. At trial, Annie J. detailed the evening's events, albeit at times she was somewhat difficult to decipher, her speech slurred from an earlier stroke. She testified that Geiger was an acquaintance of her son's and had been in her house on several previous occasions. Although Geiger's appearance at her home was uninvited on this particular evening, she had voluntarily allowed him inside. Annie J. averred that, at his request, she provided Geiger with a liquor drink. She did not imbibe. In recounting her attack, Annie J. said after excusing himself to the bathroom, Geiger returned naked and brandishing her pistol. Although at times in her testimony, Annie J. seemed uncertain as to the exact location and chronology of the events, she unequivocally described Geiger's behavior and acts against her. She stated that Geiger demanded she give him money, slapped her in the head repeatedly, put the gun to her head, put his penis in her mouth, and attempted to force her legs apart to have sexual intercourse with her. She asseverated she was able to prevent him from penetrating her and that, after the physical attack ended, Geiger searched her home for money and then left.

The emergency personnel responding to Annie J.'s telephone call described the victim as being very frightened and upset and recounted that her home was in a state of disarray. The sexual assault nurse who treated her at the hospital opined that Annie J.'s injuries were consistent with her description of the events. DNA tests conclusively indicated the clothes found in the bathroom had been worn by Geiger.

Geiger did not testify in his own defense. He called no witnesses, but limited his defense to cross-examination of the prosecution's witnesses.

At the close of the evidence, Geiger's attorney requested a charge of ABHAN. The circuit court refused the inclusion of the lesser charge, stating the record was devoid of evidence that Geiger committed ABHAN rather than ACSC. The jury found Geiger guilty of ACSC.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State v. Baccus, 367 S.C. 41, 625 S.E.2d 216 (2006); State v. Wood, 362 S.C. 520, 608 S.E.2d 435 (Ct.App.2004); State v. Mattison, 352 S.C. 577, 575 S.E.2d 852 (Ct.App.2003). On appeal, we are limited to determining whether the trial judge abused his discretion. State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998); State v. Walker, 366 S.C. 643, 623 S.E.2d 122 (Ct.App.2005); State v. Bowie, 360 S.C. 210, 600 S.E.2d 112 (Ct.App.2004). In order for an error of law to warrant reversal, the error must result in prejudice to the appellant. State v. Patterson, 367 S.C. 219, 625 S.E.2d 239 (Ct.App.2006); see State v. Beck, 342 S.C. 129, 536 S.E.2d 679 (2000); State v. Wyatt, 317 S.C. 370, 453 S.E.2d 890 (1995).

This Court is bound by the trial court's factual findings unless they are clearly erroneous. State v. Quattlebaum, 338 S.C. 441, 527 S.E.2d 105 (2000); Patterson, 367 S.C. at 224, 625 S.E.2d at 241; State v. Landis, 362 S.C. 97, 606 S.E.2d 503 (Ct.App.2004). We do not reassess the facts based on our own view of the preponderance of the evidence but simply determine whether the trial judge's ruling is supported by any evidence. State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001); State v. Mattison, 352 S.C. 577, 575 S.E.2d 852 (Ct.App.2003). This Court should examine the record to determine whether any evidence supports the trial court's ruling. See Wilson, 345 S.C. at 6, 545 S.E.2d at 829; State v. Davis, 364 S.C. 364, 613 S.E.2d 760 (Ct.App.2005); Mattison, 352 S.C. at 583, 575 S.E.2d at 855.

LAW/ANALYSIS

I. ABHAN as a Lesser Included Offense of ACSC

On appeal, Geiger argues the trial court erred in failing to charge ABHAN as lesser included offense of ACSC. Specifically, Geiger contends the evidence presented at trial supported an inference that he was guilty solely of the lesser included crime. We disagree.

Geiger was convicted of assault with intent to commit criminal sexual conduct. S.C.Code Ann. § 16-3-652 (2003) provides:

(1) A person is guilty of criminal sexual conduct in the first degree if the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven:

(a) The actor uses aggravated force to accomplish sexual battery.

(b) The victim submits to sexual battery by the actor under circumstances where the victim is also the victim of forcible confinement, kidnapping, robbery, extortion, burglary, housebreaking, or any other similar offense or act.

Sexual battery is defined as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, except when such intrusion is accomplished for medically recognized treatment or diagnostic purposes." S.C.Code Ann. § 16-3-651(h) (2003).

ABHAN is "an unlawful act of violent injury accompanied by circumstances of aggravation." State v. Primus, 349 S.C. 576, 580, 564 S.E.2d 103, 105 (2002). As an element of ABHAN, circumstances of aggravation include, inter alia, the use of a deadly weapon, intent to commit a felony, infliction of serious bodily injury, great disparity in the ages or physical conditions of the parties, difference in gender, taking indecent liberties or familiarities with a female, purposeful infliction of shame and disgrace, and resistance to lawful authority. State v. Frazier, 302 S.C. 500, 397 S.E.2d 93 (1990); State v. Tyndall, 336 S.C. 8, 21, 518 S.E.2d 278, 285 (Ct.App.1999); State v. Murphy, 322 S.C. 321, 471 S.E.2d 739 (Ct.App.1996).

ABHAN is a lesser included offense of ACSC, notwithstanding that technically ACSC does not contain all of the elements of ABHAN. State v. Elliott, 346 S.C. 603, 606, 552 S.E.2d 727, 728 (2001), overruled in part on other grounds by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005); State v. Drafts, 288 S.C. 30, 340 S.E.2d 784 (1986). Under the elements test, a crime will only be considered a lesser offense if the greater crime encompasses all of the elements of the lesser. Carter v. State, 329 S.C. 355, 362, 495 S.E.2d 773, 777 (1998). However, we have recognized limited exceptions where an offense has traditionally been considered a lesser included offense of the greater. Noting that ABHAN was historically considered a lesser included offense to ACSC's predecessor, assault with intent to ravage, the supreme court has expressly held ABHAN to be a lesser included offense of ACSC. Elliott, 346 S.C. at 606, 552 S.E.2d at 728; Drafts, 288 S.C. at 30, 340 S.E.2d at 784.

II. Charging Lesser Included Offenses

While upon indictment for a greater offense a trial court has the requisite jurisdiction to charge and convict a defendant of any lesser included offense, see Browning v. State, 320 S.C. 366, 465 S.E.2d 358 (1995), overruled in part on other grounds by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005); State v. Patterson, 337 S.C. 215, 233, 522 S.E.2d 845, 854 (Ct.App.1999); Tyndall, 336 S.C. at 21, 518 S.E.2d at 285, a lesser included offense instruction is required only when the evidence warrants such an instruction. State v. Mitchell, 362 S.C. 289, 301, 608 S.E.2d 140, 143 (Ct.App.2005); State v. Coleman, 342 S.C. 172, 175 536 S.E.2d 387, 389 (Ct.App.2000). "The law to be charged is determined by the evidence presented at trial." State v. Gourdine, 322 S.C. 396, 398, 472 S.E.2d 241 (1996) (emphasis added); accord, State v. Brown, 362 S.C. 258, 262, 607 S.E.2d 93, 95 (Ct.App.2004); State v. Todd, 290 S.C. 212, 214, 349 S.E.2d 339, 341 (1986). To justify charging the lesser crime, the evidence presented must allow a rational inference the defendant was guilty only of the lesser offense. See Tyndall, 336 S.C. at 22, 518 S.E.2d at 285. The court looks to the totality of evidence in evaluating whether such an inference has been created. See id. (in deciding whether the evidence tended to show the defendant was guilty of the lesser included offense, the court looked at the "reasonable inferences to be drawn from the totality of the evidence"). The trial court should refuse to charge the lesser included offense when there has been no evidence tending to show the defendant may have committed solely the lesser offense. State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996); State v. Smith, 315 S.C. 547, 446 S.E.2d 411 (1994).

Geiger recites the well established rule that, "the trial judge is...