State v. Brad Bernard Dawkins

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.

Brad Bernard Dawkins, Appellant.

Appellate Case No. 2015-002254

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

Unpublished Opinion No. 2017-UP-442
Heard September 20, 2017 – Filed November 29, 2017

AFFIRMED

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 with a minor because there was no evidence
supporting an inference that ABHAN occurred rather than CSC with a minor.
Accordingly, we affirm on this issue.

2. We find the trial court did not err by denying Dawkins's motion for a directed
verdict because the State presented sufficient evidence to show the alleged
incidents occurred in Laurens County. See State v. Bennett, 415 S.C. 232, 235, 781
S.E.2d 352, 353 (2016) ("On appeal from the denial of a directed verdict, this
[c]ourt reviews the evidence and all reasonable inferences in the light most
favorable to the State." (quoting State v. Butler, 407 S.C. 376, 381, 755 S.E.2d 457,
460 (2014))); State v. Cain, 419 S.C. 24, 33, 795 S.E.2d 846, 851 (2017) ("We
review the denial of a directed verdict motion in a criminal case under the any
evidence standard of review."); State v. Williams, 321 S.C. 327, 333, 468 S.E.2d
626, 630 (1996) ("A criminal defendant is entitled to a directed verdict when the
State fails to present evidence that the offense was committed in the county alleged
in the indictment."); State v. Taylor, 399 S.C. 51, 62, 731 S.E.2d 596, 602 (Ct.
App. 2012) ("However, this is a low evidentiary threshold."); State v. Crocker, 366
S.C. 394, 404, 621 S.E.2d 890, 895 (Ct. App. 2005) ("The standard for establishing
venue is not a stringent one, for 'venue, like jurisdiction, in a criminal case need
not be affirmatively proved, and circumstantial evidence of venue, though slight, is
sufficient.'" (quoting Williams, 321 S.C. at 334, 468 S.E.2d at 630)). Based on the
victim's testimony that some of the incidents occurred in Laurens County, we find
the State met its burden, and the trial court did not err by denying Dawkins's
motion for directed verdict.

3. With regard to Dawkins's argument that the trial court erred by allowing the
State to make improper comments during its closing argument, we affirm because
the argument is unpreserved. Dawkins failed to make any objection when the State
made the comments. See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691,
693–94 (2003) ("In order for an issue to be preserved for appellate review, it must
have been raised to and ruled upon by the trial [court]. Issues not raised and ruled
upon in the trial court will not be considered on appeal."); State v. Varvil, 338 S.C.
335, 339, 526 S.E.2d 248, 251 (Ct. App. 2000) ("Failure to object to comments
made during argument precludes appellate review of the issue.").

AFFIRMED.

WILLIAMS, THOMAS, and MCDONALD, JJ., concur.