State v. Benjamin C. Hernandez

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.

Benjamin Cervantes Hernandez, Appellant.

Appellate Case No. 2016-000612

Appeal From Beaufort County
John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 2018-UP-343
Submitted May 1, 2018 – Filed August 1, 2018
Withdrawn, Substituted and Refiled September 26, 2018

AFFIRMED

Appellate Defender Susan Barber Hackett, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Mark Reynolds Farthing, both of
Columbia, and Solicitor Isaac McDuffie Stone, III, of
Bluffton, all for Respondent.

PER CURIAM: Benjamin Cervantes Hernandez appeals his conviction for
criminal sexual conduct with a minor (CSCM) in the second degree, arguing the
trial court erred in not instructing the jury regarding the lesser-included offenses of
assault and battery in the first and second degrees when the offenses are lesser-
included offenses of CSCM in the second degree and the evidence supported the
instructions. We affirm.

FACTS

On July 17, 2015, Hernandez was visiting the home of a friend, Maria Pizana-
Covos (Mother). One of Mother's daughters, Minor, told Mother that Hernandez
touched her inappropriately. Minor was eleven years old at the time. Mother
confronted Hernandez and called the police. Mother told the 911 operator there
was no penetration.

Minor testified she was sitting on her couch with Hernandez and his girlfriend
when Hernandez touched her "private part." She heard her baby brother crying in
another room, so she went to give him a bottle. She said Hernandez followed her
into the room, tried to prevent her from leaving, and touched her breasts while she
was holding her brother. She took her brother into the living room, but Hernandez
followed her back into the baby's room and put his hand in her underwear. She
said he warned her it would get worse if she said anything about it. He also told
her he wanted to kiss her when they were outside with the other children. She
testified at trial that "his fingers went inside [her] private part." However, she told
a therapist at Hope Haven that she was not sure if his fingers went inside her. She
also told the responding police officer and the therapist at Hope Haven that
Hernandez did not touch her on the couch or the first time he went into the baby's
room.

Hernandez testified he went into the baby's room and tried to grab the baby from
the edge of the bed so he did not fall. He said Minor grabbed him and kissed him
between his cheek and his lips when he leaned down to get the baby. He said she
then grabbed his hand and put it inside her pajamas and used her other hand to
make "pressure between her legs." He pushed the baby back on the bed and
pushed her to take his hand out. He admitted he felt moisture when he touched her
genital area. He denied touching Minor on the couch, touching her breasts in the
baby's room, and telling Minor he wanted to kiss her when they were outside.

Hernandez was indicted for two counts of CSCM with a minor in the third degree
and one count of CSCM with a minor in the second degree. A trial was held on
February 22-25, 2016. The jury found Hernandez was not guilty of two counts of
CSCM in the third degree but found him guilty of CSCM in the second degree.
The court sentenced him to 15 years' imprisonment with credit for 190 days.
Hernandez was also placed on the sex offender registry. Hernandez filed a motion
for new trial and a motion for reconsideration. The court denied the motions. This
appeal followed.

STANDARD OF REVIEW

"In criminal cases, we review the decisions of the trial court only for errors of
law." State v. Gilmore, 396 S.C. 72, 77, 719 S.E.2d 688, 690 (Ct. App. 2011).
"Therefore, in the context of a trial court's decision not to charge a requested
lesser-included offense, we review the trial court's decision de novo." Id. A trial
court's refusal to give a requested jury charge must be both erroneous and
prejudicial to the defendant to warrant reversal. State v. Brandenburg, 419 S.C.
346, 349, 797 S.E.2d 416, 418 (Ct. App. 2017). "We must reverse and remand for
a new trial if the evidence in the record is such that the jury could have found the
defendant guilty of the lesser offense instead of the crime charged." Gilmore, 396
S.C. at 77, 719 S.E.2d at 690-91.

LAW/ANALYSIS

Hernandez argues the trial court erred in not instructing the jury regarding the
lesser-included offenses of assault and battery in the first and second degrees when
the offenses are lesser-included offenses of CSCM in the second degree and the
evidence supported the instructions. We disagree.

"A lesser-included offense is one whose elements are wholly contained within the
crime charged." State v. Dickerson, 395 S.C. 101, 118, 716 S.E.2d 895, 904
(2011). "The primary test for determining if a particular offense is a lesser
included of the offense charged is the elements test. The elements test inquires
whether the greater of the two offenses includes all the elements of the lesser
offense." Brandenburg, 419 S.C. at 350-51, 797 S.E.2d at 418 (quoting State v.
Watson, 349 S.C. 372, 375, 563 S.E.2d 336, 337 (2002)). "If the lesser offense
includes an element not included in the greater offense, then the lesser offense is
not included in the greater." Id. at 351, 797 S.E.2d at 418 (quoting Hope v. State,
328 S.C. 78, 81, 492 S.E.2d 76, 78 (1997)).

A person is guilty of CSCM in the second degree if "the actor engages in sexual
battery with a victim who is fourteen years of age or less but who is at least eleven
years of age." S.C. Code Ann. § 16-3-655(B)(1) (2015). "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) (2015).

A person is guilty of assault and battery in the first degree if they unlawfully injure
another person, and the act "involves nonconsensual touching of the private parts
of a person, either under or above clothing, with lewd and lascivious intent." S.C.
Code Ann. § 16-3-600(C)(1)(a)(i) (2015). A person is guilty of assault and battery
in the second degree if they unlawfully injure another person, "or offer[] or
attempt[] to injure another person with the present ability to do so," and "the act
involves the nonconsensual touching of the private parts of a person, either under
or above clothing." S.C. Code Ann. § 16-3-600(D)(1)(b) (2015).

CSCM in the second degree is the touching of a minor's private parts. CSCM in
the second degree does not require an injury and must involve a minor under the
age of fourteen. Assault and battery in the first degree requires an injury and
nonconsensual touching of a person's private parts. Assault and battery in the
second degree requires an injury or an attempted injury and nonconsensual
touching of a person's private parts. Therefore, because assault and battery in the
first degree requires an injury and in the second degree requires an injury or an
attempted injury, and CSCM in the second degree does not, the elements test fails.

At trial, Hernandez requested the trial court charge the jury with assault and battery
in the first and second degrees as lesser-included offenses of CSCM in the second
degree. Hernandez argued assault and battery in the first degree is the equivalent
of the former common-law offense of assault and battery of a high and aggravated
nature (ABHAN), which had been found to be a lesser-included offense of some
criminal sexual conduct cases. Hernandez cited to State v. Mathis, 287 S.C. 589,
593-94, 340 S.E.2d 538, 541 (1986) (holding ABHAN is a lesser-included offense
of criminal sexual conduct in the first degree, and a trial judge is required to charge
the jury on a lesser-included offense if there is evidence from which it could be
inferred that a defendant committed the lesser, rather than the greater offense), and
State v. Murphy, 322 S.C. 321, 326, 471 S.E.2d 739, 741 (Ct. App. 1996) (ruling
defendant was entitled to a charge of assault of a high and aggravated nature as a
lesser-included offense of assault with intent to commit first degree criminal sexual
conduct (CSC), and the trial judge erred in refusing such a request). The trial court
denied Hernandez's request, stating, "had the legislature desired to include these
crimes . . . under the CSC [as] lesser[-]included of the new assault and batter[y,
t]hey could have included these offenses as lesser[-]included offenses by statute[,]
but I'm not go[ing to] charge the lesser[-]included." The trial court charged the
jury on the elements of second-degree and third-degree CSCM but did not present
instructions on any other offenses. Hernandez did not object after the jury charge.

On appeal, Hernandez does not cite to a case that has found assault and battery in
the first or second degree to be the lesser-included offenses of CSCM in the second
degree. Instead, he again argues they should be based on our State's tradition of
finding ABHAN to be a lesser-included offense of CSC even though the two
offenses fail the traditional elements test. See State v. Primus, 349 S.C. 576, 581,
564 S.E.2d 103, 106 (2002), overruled on other grounds by State v. Gentry, 363
S.C. 93, 610 S.E.2d 494 (2005) ("[T]he [supreme c]ourt most recently determined
that because it had consistently held ABHAN is a lesser[-]included offense of
assault with intent to commit CSC, it would continue this ruling even though the
two offenses failed the traditional elements test. Similarly, the [supreme c]ourt has
repeatedly held ABHAN is a lesser[-]included offense of first degree CSC. In
order to have a uniform approach to CSC and ABHAN offenses, we likewise hold
ABHAN is a lesser[-]included offense of first degree CSC." (citations omitted)).

In 2010, the South Carolina Legislature codified ABHAN and assault and battery
in the first to third degrees. S.C. Code Ann. § 16-3-600 (2015). The statute
provides that ABHAN is the lesser-included offense of attempted murder, assault
and battery in the first degree is the lesser-included offense of ABHAN, assault
and battery in the second degree is the lesser-included offense of assault and
battery in the first degree, and assault and battery in the third degree is the lesser-
included offense of assault and battery in the second degree. S.C. Code Ann. § 16-
3-600 (2015). We find that had the Legislature intended for assault and battery in
the first and second degrees to be lesser-included offenses of CSCM, it could have
so provided.

Therefore, we find the trial court did not err in determining assault and battery in
the first and second degrees are not lesser-included offenses of CSCM in the
second degree. We need not determine if any evidence in the record supported a
jury charge on assault and battery. See Futch v. McAllister Towing of Georgetown,
Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court
need not review remaining issues when its determination of another issue is
dispositive of the appeal).

CONCLUSION

Accordingly, the decision of the trial court is
AFFIRMED.1

SHORT, THOMAS, and HILL, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.