State v. Cobb

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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Joseph Cobb, Appellant.

Appellate Case No. 2011-188247

Appeal From Spartanburg County
J. Derham Cole, Circuit Court Judge

Unpublished Opinion No. 2013-UP-122
Heard March 5, 2013 – Filed March 27, 2013

AFFIRMED

Appellate Defender Breen Richard Stevens, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Salley W. Elliott, and Assistant
Attorney General Christina J. Catoe, all of Columbia; and
Solicitor Barry Joe Barnette, of Spartanburg, for
Respondent.
PER CURIAM: Joseph Cobb appeals his conviction for second-degree criminal
sexual conduct with a minor, arguing the trial court erred in refusing to instruct the
jury on the lesser-included offense of assault and battery of a high and aggravated
nature (ABHAN). We affirm pursuant to Rule 220(b), SCACR, and the following
authorities:

Sheppard v. State, 357 S.C. 646, 665, 594 S.E.2d 462, 472-73 (2004) (recognizing
generally, "the trial court is required to charge only the current and correct law of
South Carolina"); State v. Brown, 362 S.C. 258, 261-62, 607 S.E.2d 93, 95 (Ct.
App. 2004) (noting the evidence presented at trial determines the law to be charged
to the jury and, to warrant reversal, a trial court's refusal to give a requested jury
instruction must be both erroneous and prejudicial to the defendant); State v.
Drafts, 288 S.C. 30, 32, 340 S.E.2d 784, 785 (1986) ("A trial [court] is required to
charge a jury on a lesser included offense if there is evidence from which it could
be inferred that a defendant committed the lesser offense rather than the greater."
(emphasis added)); State v. Bland, 318 S.C. 315, 317, 457 S.E.2d 611, 612 (1995)
("The test for determining when a crime is a lesser included offense of the crime
charged is whether the greater of the two offenses includes all the elements of the
lesser offense. If the lesser offense includes an element not included in the greater
offense, then the lesser offense is not included in the greater." (internal citation
omitted)); S.C. Code Ann. § 16-3-655(B)(2) (Supp. 2012) (stating second-degree
criminal sexual conduct with a minor occurs when the accused "engages in sexual
battery with a victim who is at least fourteen years" old but less than sixteen years
old and the accused "is in a position of familial, custodial, or official authority to
coerce the victim to submit or is older than the victim"); S.C. Code Ann. § 16-3-
651(h) (2003) (defining "sexual battery" to include "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"); State v. Green, 327 S.C. 581, 585,
491 S.E.2d 263, 264-65 (Ct. App. 1997) (defining ABHAN1 as "the unlawful act of
violent injury to another accompanied by circumstances of aggravation," such as a
"great disparity in the ages or physical conditions of the parties, a difference in
sexes, the purposeful infliction of shame and disgrace, [or] taking indecent liberties

1
ABHAN was codified in South Carolina Code subsection 16-3-600(B)(1) (Supp.
2012) by the Omnibus Crime Reduction and Sentencing Reform Act of 2010,
which became effective after the date of the offense in this case. See Act No. 273,
2010 S.C. Acts 1947-48, 2038.
or familiarities with a female," and observing "many of the circumstances of
aggravation for purposes of ABHAN ha[d] nothing to do with the degree of force
associated with the attack" (citations omitted)).

AFFIRMED.

FEW, C.J., LOCKEMY, J., and CURETON, A.J., concur.