State v. Golston
State v. Golston
Opinion of the Court
Bennie Golston appeals his conviction for criminal domestic violence of a high and aggravated nature (CDVHAN). His primary contention on appeal is that the trial court erred in declining to charge the jury on criminal domestic violence (CDV) as a lesser-included offense. We affirm.
I. Facts and Procedural History
Golston and the victim lived together “off and on” for approximately five years. On the morning of March 22, 2008, a neighbor found the victim lying on a mattress in her house. Her breathing was shallow and her face was so swollen that she could not open her eyes. The neighbor called 911, and deputies and paramedics came to the victim’s house. According to the deputies who responded to the scene, the victim told them Golston attacked her the previous night using his fists, a log, and a hatchet. The victim’s adult son also came to her house. Her face was so swollen that he did not recognize her. The son testified:
I went into the house, went to the back, and I saw my momma laying there. That was my momma but that wasn’t my momma. I wasn’t prepared for that. I worked at Rocket Rescue1 for about two years, and I’ve seen wrecks with fatalities. I’ve never seen anybody’s face swollen like that. If she hadn’t talked, I wouldn’t have known that was my momma.
Golston was indicted and tried for CDVHAN. At trial; the State and Golston presented conflicting accounts of the incident. The victim testified Golston came home between 11:00 p.m. and midnight, smelling of alcohol, and told her he should beat her up for allowing another man inside “our home” earlier that day.
Golston testified to a different version of events. According to his testimony, when he arrived at the house, the victim met him outside and was furious. She said “I’m going” and began walking off. As she walked away, Golston followed her and
Golston requested a jury charge on CDV as a lesser-included offense of CDVHAN.
II. CDV as a Lesser-Included Offense of CDVHAN
A person is guilty of CDV when the State proves he either “cause[d] physical harm or injury to [his] own household member,” or “offer[ed] or attempted] to cause physical harm or injury to [his] own household member with apparent present ability under circumstances reasonably creating fear of imminent peril.” S.C.Code Ann. § 16-25-20(A), (B) (Supp. 2011). A person is guilty of CDVHAN when, in addition to proving CDV, the State proves one of the aggravating circumstances set forth in subsection 16-25-65(A) of the Code, such as that the defendant’s conduct “result[ed] in serious bodily injury to the victim.” § 16-25-65(A)(l) (Supp. 2011).
In most prosecutions for CDVHAN, there will be evidence the defendant committed acts which constitute only CDV in addition to acts which constitute CDVHAN. In this case, for example, Golston’s statement to the victim “you ain’t going nowhere” and his admitted “slap[ping] her face” could be found by a jury to amount only to CDV and not CDVHAN. However, the mere existence of evidence that Golston committed these acts in addition to other acts which could constitute CDVHAN, such as beating the victim with his fists so severely that her own son could not recognize her and she could not
Therefore, the task of the trial court in deciding whether to charge the lesser offense, and of this court reviewing that decision on appeal, is to examine the record to determine if there is evidence upon which the jury could find the defendant was guilty of the lesser offense, but not guilty of the greater offense.
Golston makes several arguments in support of his position that the charge should have been given. First, he argues simply that whether the victim’s injuries were “serious” under subsection 16-25-65(A)(l) is a question of fact, and if the jury found the injuries were not serious, he could be guilty only of CDV. In support of this argument, Golston points out the phrase “serious bodily injury” is not defined in the statute,
Golston also argues the jury could have found the State failed to prove two other aggravating circumstances: “an assault and battery which involves the use of a deadly weapon” under subsection 16-25-65(A)(l), and “an assault ... which would reasonably cause a person to fear imminent serious bodily injury or death” under subsection 16-25-65(A)(2). Additionally, as to the serious bodily injury aggravating circumstance, Golston argues the victim did not suffer any broken bones, she did not permanently lose her eyesight, and there was no evidence she sustained cuts or required stitches. We find it unnecessary to address these arguments because, as we have explained, the only evidence in the record is that the injuries the victim did sustain were serious, and thus the State necessarily proved at least one aggravating circumstance — serious bodily injury. The fact that there may be conflicting evidence as to other aggravating circumstances, or that there may be other serious bodily injuries the victim did not sustain, does not affect the existence of some serious bodily injury, and therefore the necessity that, on these facts, Golston was either not guilty or guilty of CDVHAN.
Because there is no evidence to support a conclusion that the victim did not suffer “serious bodily injury,” it was not possible for the jury to find Golston guilty of CDV instead of CDVHAN. The trial court properly refused to charge CDV.
III. Other Issues
Golston also argues the trial court erred in rejecting his challenge to the sufficiency of his indictment and in denying his motion to suppress evidence of the hatchet deputies found in his house while executing a warrant for his arrest. We disagree and affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities:
As to the challenge to the sufficiency of the indictment: Evans v. State, 363 S.C. 495, 508, 611 S.E.2d 510, 517 (2005) (stating the primary purposes of an indictment are to apprise the defendant “of the elements of the offense and to allow him to decide whether to plead guilty or stand trial, and to enable the circuit court to know what judgment to pronounce if the defendant is convicted”).
IV. Conclusion
We find there is no evidence in the record upon which the jury could have found Golston committed CDV instead of CDVHAN, and therefore the trial court properly refused to charge CDV as a lesser-included offense. We affirm.
AFFIRMED.
. It is not clear from the record what the son meant by "Rocket Rescue,” but it appears the phrase is a colloquialism for emergency medical services companies.
. The other man was a longtime friend of the victim. He and his wife had helped the victim move furniture that day.
. Golston also requested a charge on simple assault and battery, but does not challenge on appeal the trial court’s decision not to charge it.
. In making this inquiry, we are mindful that Golston had no burden of proof. However, we are not permitted to speculate that the jury might not have believed some of the evidence that was presented. See State v. Franks, 376 S.C. 621, 624, 658 S.E.2d 104, 106 (Ct.App. 2008) ("The mere contention that the jury might accept the State's evidence in part and reject it in part is insufficient to satisfy the requirement that some evidence tend to show the defendant was guilty of only the lesser offense.”).
. As to the State's burden to disprove self-defense, see State v. Bixby, 388 S.C. 528, 553-54, 698 S.E.2d 572, 585-86 (2010) (stating self-
. "Serious bodily injury” is defined in another section of the Code as "a physical condition which creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of a bodily member or organ.” S.C.Code Ann. § 23-31-400(A)(2) (2007). We do not decide whether that definition applies to subsection 16-25-65(A)(l). However, even if we decided it did, we do not believe there is any evidence in the record that the victim’s injuries do not meet that definition, as she suffered temporary serious disfigurement to her face, protracted loss of the use of her eyes from the swelling, and permanent impairment of vision.
Reference
- Full Case Name
- The STATE v. Bennie GOLSTON
- Cited By
- 10 cases
- Status
- Published