State v. Williams

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

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Daniel Webster Williams, Jr.,       
Appellant.

Appeal From Greenville County

C. Victor Pyle, Jr., Circuit Court
Judge

Unpublished Opinion No. 2004-UP-408

Submitted March 19, 2004 – Filed June 24, 2004

AFFIRMED IN PART, REVERSED IN PART

AND REMANDED

Assistant Appellate Defender
Robert M. Pachak, of Columbia, for Appellant

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.

HOWARD,
J.: Daniel Webster Williams was convicted of shoplifting and assault
of a high and aggravated nature (“AHAN”).  The circuit court sentenced Williams
to nine years imprisonment for shoplifting and one year imprisonment for AHAN. 
On appeal, Williams argues the circuit court lacked subject matter jurisdiction
to convict and sentence him to nine years imprisonment for shoplifting because
the indictment against him alleged an incorrect subsection of the shoplifting
statute.  Williams also argues the circuit court erred by denying his request
to charge the jury on simple assault as a lesser-included offense of AHAN.

FACTUAL/PROCEDURAL BACKGROUND

K-mart’s loss prevention manager allegedly saw Williams
concealing children’s clothing in the front of his pants and jacket.   According
to the loss prevention manager, he attempted to stop Williams as he exited the
store.  Williams proceeded into the K-Mart parking lot, and the loss prevention
manager grabbed Williams’ arm.  Williams then began swinging at him with a box
cutter. 

As a result of this incident, Williams was indicted
and tried for shoplifting and AHAN.  At trial, the defense requested a jury
charge on the offense of simple assault as a lesser-included offense of AHAN. 
The circuit court denied the request.  Subsequently, Williams was convicted
and sentenced to nine years imprisonment for shoplifting and one year imprisonment
for AHAN.   

LAW/ANALYSIS

I.       Indictment

Williams argues the
circuit court lacked subject matter jurisdiction to convict and sentence him
to nine years imprisonment for shoplifting because the indictment against him
alleged an incorrect subsection of the shoplifting statute.  We disagree.

“Issues related to subject matter
jurisdiction may be raised at any time.”  Carter v. State, 329 S.C. 355,
362, 495 S.E.2d 773, 777 (1998). A circuit court has subject matter jurisdiction
if: “(1) there has been an indictment which sufficiently states the offense;
(2) there has been a waiver of indictment; or (3) the charge is a lesser included
offense of the crime charged in the indictment.”  Id.   “The true test
of the sufficiency of an indictment is not whether it could be made more definite
and certain, but whether it contains the necessary elements of the offense intended
to be charged and sufficiently apprises the defendant of what he must be prepared
to meet.”  Browning v. State, 320 S.C. 366, 368, 465 S.E.2d 358, 359
(1995). 

“The caption of an
indictment is no part of the finding of the grand jury; instead, it is the body
of the indictment that is important.”  Tate v. State, 345 S.C. 577, 581,
549 S.E.2d 601, 603 (2001).  If the body of an indictment specifically states
the essential elements of the crime and is otherwise free from defect, a defect
in the caption will not cause it to be invalid.  Id.

South Carolina Code
Ann. section 16-13-110(A) is the statute prohibiting the offense of shoplifting. 
Section 16-13-110(B), delineating potential sentences based on the value of
the shoplifted merchandise, provides:

A person who violates the provisions
of this section is guilty of a:  (1) misdemeanor triable in magistrate’s court
and, upon conviction, must be fined not more than five hundred dollars or imprisoned
not more than thirty days if the value of the shoplifted merchandise is one
thousand dollars or less; (2) felony and, upon conviction, must be fined
not more than one thousand dollars or imprisoned not more than five years, or
both, if the value of the shoplifted merchandise is more than one thousand dollars
but less than five thousand dollars; (3) felony and, upon conviction, must be
imprisoned not more than ten years if the value of the shoplifted merchandise
is five thousand dollars or more.

S.C. Code Ann. § 16-13-110 (B)
(Cum. Supp. 1995) (emphasis added). 

Here, the body of
the indictment charges Williams with shoplifting  “children’s clothing valued
at approximately Three Hundred Dollars and No Cents ($300.00) . . . in violation
of § 16-13-110 (Cum. Supp. 1995).”  Although the body of the indictment does
not specify a subsection, shoplifting $300 of merchandise is a violation of
subsection (B)(1).  However, the caption on the reverse side of the indictment
references subsection 16-13-110(B)(3), which carries a greater sentence.  Williams
argues the caption incorrectly charges him with violating section 16-13-110
(B)(3) even though the body of the indictment charges him with shoplifting merchandise
valued at three hundred dollars, and the circuit court lacked jurisdiction to
convict and sentence him under section 16-13-110(B)(3). 

We first note, the
circuit court did not sentence Williams under section 16-13-110(B)(3).  Rather,
Williams was charged and convicted under section 16-13-110(B)(1) for shoplifting
merchandise valued at three hundred ($300) dollars, but was sentenced as a third
or subsequent offender under S.C. Code Ann. section 16-1-57 (Supp.1995) because
he admittedly had three or more prior convictions for shoplifting.  “A person
convicted of an offense for which the term of imprisonment is contingent upon
the value of the property involved must, upon conviction for a third or subsequent
offense, be punished as prescribed for a Class E felony.”  A person convicted
of a Class E felony may be imprisoned for up to ten years.  S.C. Code Ann. §
16-1-20(A)(5) (Supp. 1995); see also State v. Lewis, 325 S.C.
324, 327, 478 S.E.2d 696, 698 (Ct. App. 1996).

Furthermore, the body
of the indictment in this case contained “the necessary elements of the offense
intended to be charged and sufficiently apprise[d] the defendant” of the allegations
against him.  Browning, 320 S.C. at 368, 465 S.E.2d at 359.  The body
of the indictment charged Williams with shoplifting $300 of children’s clothing
in violation of section 16-13-110 and did not mention a subsection.  As Williams
was apprised of the charged offense, the error in the caption of the indictment
did not render the indictment invalid.  Tate, 345 S.C. at 581, 549 S.E.2d
at 603. 

As this was Williams’ third or subsequent
conviction for shoplifting, the circuit court properly sentenced him under the
enhanced penalties of S.C. Code Ann. section 16-1-57 (Supp.1995).

II.      Jury Charge

Williams argues the circuit court erred by denying
his request to charge the jury on simple assault as a lesser-included offense
of AHAN.  We agree.

“The law to be charged is determined from the facts
presented at trial.”  State v. Lewis, 328 S.C. 273, 278, 494 S.E.2d 115,
117 (1997).  An instruction on a lesser-included offense is required when the
evidence presented indicates the defendant may be guilty only of a lesser offense. 
A requested charge is properly refused where there is no evidence tending to
show the defendant was guilty only of the lesser offense.  State v. Tyndall,
336 S.C. 8, 16, 518 S.E.2d 278, 282 (1999).  However, a circuit court commits
reversible error if it fails to give a requested charge if there is evidence
from which it could be inferred the defendant committed the lesser, rather than
the greater offense.  State v. Sprouse, 325 S.C. 275, 285, 478
S.E.2d 871, 877 (Ct. App. 1996). 

In determining whether a circuit court
erred in refusing to give a requested charge, an appellate court must review
the evidence and issues presented at trial.  State v. Gadsden, 314 S.C.
229, 232, 442 S.E.2d 594, 597 (1994); see State v. Caulder, 287
S.C. 507, 513, 339 S.E.2d 876, 880 (Ct. App. 1986) (holding when reviewing a
jury charge, an appellate court must consider the charge as a whole and in light
of the evidence and issues presented at trial).

“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.”  Knox v. State, 340 S.C. 81, 84, 530
S.E.2d 887, 888 (2000).

Assault and battery of a high and aggravated nature (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).  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.  Id. at 580-81, 564 S.E.2d. at 105-06. 
“[A]ssault of a high and aggravated nature contains the same elements of ABHAN
with the exception of the element of touching the victim . . . .”  State
v. Murphy, 322 S.C. 321, 325, 471 S.E.2d 739, 741 (Ct. App. 1996).  Simple
assault is an attempted battery or “an unlawful attempt or offer to commit a
violent injury upon another person, coupled with the present ability to complete
the attempt or offer by a battery.”  State v. Sutton, 340 S.C. 393, 397,
532 S.E.2d 283, 285 (2000).  Thus, assault of a high and aggravated nature contains
all of the elements of simple assault, plus the circumstance of aggravation. 
Consequently, simple assault is a lesser-included offense of assault of a high
and aggravated nature. 

At trial, the victim testified Williams attempted
to strike him with a box cutter.  The State argued the use of a box cutter constituted
the aggravating circumstance.  In contrast, Williams testified he did not have
any weapons, and he swung at the victim two or three times with his fist when
the victim grabbed him without explanation in the parking lot.

Williams’ testimony provides evidence from which
the jury could find there was no box cutter, and in a light most favorable to
Williams, no circumstance of aggravation.  Therefore, his testimony would support
a conclusion he was guilty of the lesser offense of simple assault.  See
 State v. Sutton, 340 S.C. 393, 397, 532 S.E.2d 283, 285 (2000) (holding
simple assault is an attempted battery or “an unlawful attempt or offer to commit
a violent injury upon another person, coupled with the present ability to complete
the attempt or offer by a battery.”).  Consequently, the circuit court erred
in refusing to charge the lesser-included offense of simple assault.  Sprouse,
325 S.C. at 285, 478 S.E.2d at 877.

CONCLUSION

For the foregoing reasons, Williams’ conviction for shoplifting is AFFIRMED. 
Williams’ conviction for assault of a high and aggravated nature is REVERSED,
and the case is REMANDED for a new trial on the indictment for AHAN. 

AFFIRMED IN PART, REVERSED IN PART, and REMANDED. [1]

GOOLSBY and BEATTY, JJ., concurring.

[1] Because oral argument would not aid the Court in resolving any issue
on appeal, we decide this case without oral argument pursuant to Rule 215,
SCACR.