Submitted October 4, 2019
from Beaufort County John C. Hayes, III, Circuit Court Judge
OF CERTIORARI TO THE COURT OF APPEALS
Appellate Defender Susan Barber Hackett, of Columbia, for
Attorney General Alan Wilson and Assistant Attorney General
Mark Reynolds Farthing, of Columbia, for Respondent.
filed a petition for a writ of certiorari asking this Court
to review the court of appeals' decision in State v.
Hernandez, Op. No. 2018-UP-343 (S.C. Ct. App. withdrawn,
substituted, and refiled Sept. 26, 2018). We grant the
petition, dispense with further briefing, and affirm as
visited the home of a family friend in July 2015. During this
visit, three female minors accused him of inappropriately
touching them. The mother of one of the victims called the
police, who arrived at the home shortly thereafter. The
police took a statement from Petitioner and later arrested
was indicted for two counts of criminal sexual conduct (CSC)
with a minor in the third degree and one count of CSC with a
minor in the second degree. At the trial, the jury acquitted
Petitioner of the two counts of CSC with a minor in the third
degree, but convicted Petitioner of CSC in the second degree.
Petitioner was sentenced to fifteen years' imprisonment
and placed on the sex offender registry.
court of appeals affirmed Petitioner's conviction and
sentence. Id. Both parties filed petitions for
rehearing with the court of appeals. The court of appeals
denied both parties' petitions for rehearing, but
withdrew the original opinion and substituted a second,
unpublished opinion. We granted Petitioner's petition for
a writ of certiorari.
argues the court of appeals erred in affirming the trial
court's denial of his request to charge the jury on first
and second degree assault and battery as lesser-included
offenses of CSC. Specifically, Petitioner contends this case
presents a novel question of law as to whether the
codification of common law assault and battery and its
various degrees changed the status of assault and battery of
a high and aggravated nature (ABHAN) as a lesser-included
offense of CSC. Petitioner asserts the status survived the
codification. We disagree.
2010, the South Carolina General Assembly passed the Omnibus
Crime Reduction and Sentencing Reform Act of 2010 (the Act),
which codified all assault and battery crimes into ABHAN, and
first, second, and third degree assault and battery. S.C.
Code Ann. § 16-3-600 (2015). As we stated in State
v. Middleton, 407 S.C. 312, 755 S.E.2d 432 (2014), the
"legislature abolished all common law assault and
battery offenses and all prior statutory assault and battery
offenses," and in place of those offenses, codified
"four degrees of assault and battery." 407 S.C. at
315, 755 S.E.2d at 434. The Act also provides that ABHAN is a
lesser-included offense of attempted murder; assault and
battery in the first degree is a lesser-included offense of
ABHAN and attempted murder; assault and battery in the second
degree is a lesser-included offense of first degree assault