THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Robert W. Hagins,        Petitioner,

v.

State of South Carolina,        Respondent.

Appeal From Greenville County
James R. Barber, III, Circuit Court Judge

Memorandum Opinion No. 2004-MO-023
Submitted May 13, 2004 - Filed June 1, 2004

AFFIRMED

Assistant Appellate Defender Eleanor Duffy Cleary, of South Carolina Office of Appellate Defense, of Columbia, for petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for respondent.

PER CURIAM:� Affirmed pursuant to Rule 220(b)(1), SCACR, and the following authorities:� State v. Crosby, 355 S.C. 47, 584 S.E.2d 110 (2003) (law to be charged must be determined from evidence presented at trial); State v. Foxworth, 269 S.C. 496, 238 S.E.2d 172 (1977) (not error for a trial court to refuse to submit lesser-included offense of simple assault and battery to jury under assault and battery of a high and aggravated nature indictment, unless there is testimony tending to show defendant is guilty only of simple assault and battery).

TOAL, C.J., MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.