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 Court of Appeals

The State,        Respondent,

v.

Daniel Webster Williams, Jr.,        Appellant.

Appeal From Greenville County
C. Victor Pyle, Jr., Circuit Court Judge

Unpublished Opinion No. 2004-UP-408
Submitted March 19, 2004 � Filed June 24, 2004

AFFIRMED IN PART, REVERSED IN PART
AND REMANDED

Assistant Appellate Defender Robert M. Pachak, of Columbia, for Appellant

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.

HOWARD, J.: Daniel Webster Williams was convicted of shoplifting and assault of a high and aggravated nature (�AHAN�).� The circuit court sentenced Williams to nine years imprisonment for shoplifting and one year imprisonment for AHAN.� On appeal, Williams argues the circuit court lacked subject matter jurisdiction to convict and sentence him to nine years imprisonment for shoplifting because the indictment against him alleged an incorrect subsection of the shoplifting statute.� Williams also argues the circuit court erred by denying his request to charge the jury on simple assault as a lesser-included offense of AHAN.

FACTUAL/PROCEDURAL BACKGROUND

K-mart�s loss prevention manager allegedly saw Williams concealing children�s clothing in the front of his pants and jacket.�� According to the loss prevention manager, he attempted to stop Williams as he exited the store.� Williams proceeded into the K-Mart parking lot, and the loss prevention manager grabbed Williams� arm.� Williams then began swinging at him with a box cutter.�

As a result of this incident, Williams was indicted and tried for shoplifting and AHAN.� At trial, the defense requested a jury charge on the offense of simple assault as a lesser-included offense of AHAN.� The circuit court denied the request.� Subsequently, Williams was convicted and sentenced to nine years imprisonment for shoplifting and one year imprisonment for AHAN.���

LAW/ANALYSIS

I.������ Indictment

Williams argues the circuit court lacked subject matter jurisdiction to convict and sentence him to nine years imprisonment for shoplifting because the indictment against him alleged an incorrect subsection of the shoplifting statute.� We disagree.

�Issues related to subject matter jurisdiction may be raised at any time.�� Carter v. State, 329 S.C. 355, 362, 495 S.E.2d 773, 777 (1998). A circuit court has subject matter jurisdiction if: �(1) there has been an indictment which sufficiently states the offense; (2) there has been a waiver of indictment; or (3) the charge is a lesser included offense of the crime charged in the indictment.�� Id.�� �The true test of the sufficiency of an indictment is not whether it could be made more definite and certain, but whether it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.�� Browning v. State, 320 S.C. 366, 368, 465 S.E.2d 358, 359 (1995).�

�The caption of an indictment is no part of the finding of the grand jury; instead, it is the body of the indictment that is important.�� Tate v. State, 345 S.C. 577, 581, 549 S.E.2d 601, 603 (2001).� If the body of an indictment specifically states the essential elements of the crime and is otherwise free from defect, a defect in the caption will not cause it to be invalid.� Id.

South Carolina Code Ann. section 16-13-110(A) is the statute prohibiting the offense of shoplifting.� Section 16-13-110(B), delineating potential sentences based on the value of the shoplifted merchandise, provides:

A person who violates the provisions of this section is guilty of a:� (1) misdemeanor triable in magistrate�s court and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than thirty days if the value of the shoplifted merchandise is one thousand dollars or less; (2) felony and, upon conviction, must be fined not more than one thousand dollars or imprisoned not more than five years, or both, if the value of the shoplifted merchandise is more than one thousand dollars but less than five thousand dollars; (3) felony and, upon conviction, must be imprisoned not more than ten years if the value of the shoplifted merchandise is five thousand dollars or more.

S.C. Code Ann. � 16-13-110 (B) (Cum. Supp. 1995) (emphasis added).�

Here, the body of the indictment charges Williams with shoplifting� �children�s clothing valued at approximately Three Hundred Dollars and No Cents ($300.00) . . . in violation of � 16-13-110 (Cum. Supp. 1995).�� Although the body of the indictment does not specify a subsection, shoplifting $300 of merchandise is a violation of subsection (B)(1).� However, the caption on the reverse side of the indictment references subsection 16-13-110(B)(3), which carries a greater sentence.� Williams argues the caption incorrectly charges him with violating section 16-13-110 (B)(3) even though the body of the indictment charges him with shoplifting merchandise valued at three hundred dollars, and the circuit court lacked jurisdiction to convict and sentence him under section 16-13-110(B)(3).�

We first note, the circuit court did not sentence Williams under section 16-13-110(B)(3).� Rather, Williams was charged and convicted under section 16-13-110(B)(1) for shoplifting merchandise valued at three hundred ($300) dollars, but was sentenced as a third or subsequent offender under S.C. Code Ann. section 16-1-57 (Supp.1995) because he admittedly had three or more prior convictions for shoplifting.� �A person convicted of an offense for which the term of imprisonment is contingent upon the value of the property involved must, upon conviction for a third or subsequent offense, be punished as prescribed for a Class E felony.�� A person convicted of a Class E felony may be imprisoned for up to ten years.� S.C. Code Ann. � 16-1-20(A)(5) (Supp. 1995); see also State v. Lewis, 325 S.C. 324, 327, 478 S.E.2d 696, 698 (Ct. App. 1996).

Furthermore, the body of the indictment in this case contained �the necessary elements of the offense intended to be charged and sufficiently apprise[d] the defendant� of the allegations against him.� Browning, 320 S.C. at 368, 465 S.E.2d at 359.� The body of the indictment charged Williams with shoplifting $300 of children�s clothing in violation of section 16-13-110 and did not mention a subsection.� As Williams was apprised of the charged offense, the error in the caption of the indictment did not render the indictment invalid.� Tate, 345 S.C. at 581, 549 S.E.2d at 603.�

As this was Williams� third or subsequent conviction for shoplifting, the circuit court properly sentenced him under the enhanced penalties of S.C. Code Ann. section 16-1-57 (Supp.1995).

II.����� Jury Charge

Williams argues the circuit court erred by denying his request to charge the jury on simple assault as a lesser-included offense of AHAN.� We agree.

�The law to be charged is determined from the facts presented at trial.�� State v. Lewis, 328 S.C. 273, 278, 494 S.E.2d 115, 117 (1997).� An instruction on a lesser-included offense is required when the evidence presented indicates the defendant may be guilty only of a lesser offense.� A requested charge is properly refused where there is no evidence tending to show the defendant was guilty only of the lesser offense.� State v. Tyndall, 336 S.C. 8, 16, 518 S.E.2d 278, 282 (1999).� However, a circuit court commits reversible error if it fails to give a requested charge if there is evidence from which it could be inferred the defendant committed the lesser, rather than the greater offense.� State v. Sprouse, 325 S.C. 275, 285, 478 S.E.2d 871, 877 (Ct. App. 1996).�

In determining whether a circuit court erred in refusing to give a requested charge, an appellate court must review the evidence and issues presented at trial.� State v. Gadsden, 314 S.C. 229, 232, 442 S.E.2d 594, 597 (1994); see State v. Caulder, 287 S.C. 507, 513, 339 S.E.2d 876, 880 (Ct. App. 1986) (holding when reviewing a jury charge, an appellate court must consider the charge as a whole and in light of the evidence and issues presented at trial).

�The test for determining when a crime is a lesser included offense is whether the greater of the two offenses includes all the elements of the lesser offense.�� Knox v. State, 340 S.C. 81, 84, 530 S.E.2d 887, 888 (2000).

Assault and battery of a high and aggravated nature (ABHAN) �is an unlawful act of violent injury accompanied by circumstances of aggravation.�� State v. Primus, 349 S.C. 576, 580, 564 S.E.2d 103, 105 (2002).� Circumstances of aggravation include the use of a deadly weapon, the intent to commit a felony, infliction of serious bodily injury, great disparity in the ages or physical conditions of the parties, a difference in gender, the purposeful infliction of shame and disgrace, taking indecent liberties or familiarities with a female, and resistance to lawful authority.� Id. at 580-81, 564 S.E.2d. at 105-06.� �[A]ssault of a high and aggravated nature contains the same elements of ABHAN with the exception of the element of touching the victim . . . .�� State v. Murphy, 322 S.C. 321, 325, 471 S.E.2d 739, 741 (Ct. App. 1996).� Simple assault is an attempted battery or �an unlawful attempt or offer to commit a violent injury upon another person, coupled with the present ability to complete the attempt or offer by a battery.�� State v. Sutton, 340 S.C. 393, 397, 532 S.E.2d 283, 285 (2000).� Thus, assault of a high and aggravated nature contains all of the elements of simple assault, plus the circumstance of aggravation.� Consequently, simple assault is a lesser-included offense of assault of a high and aggravated nature.�

At trial, the victim testified Williams attempted to strike him with a box cutter.� The State argued the use of a box cutter constituted the aggravating circumstance.� In contrast, Williams testified he did not have any weapons, and he swung at the victim two or three times with his fist when the victim grabbed him without explanation in the parking lot.

Williams� testimony provides evidence from which the jury could find there was no box cutter, and in a light most favorable to Williams, no circumstance of aggravation.� Therefore, his testimony would support a conclusion he was guilty of the lesser offense of simple assault.� See �State v. Sutton, 340 S.C. 393, 397, 532 S.E.2d 283, 285 (2000) (holding simple assault is an attempted battery or �an unlawful attempt or offer to commit a violent injury upon another person, coupled with the present ability to complete the attempt or offer by a battery.�).� Consequently, the circuit court erred in refusing to charge the lesser-included offense of simple assault.� Sprouse, 325 S.C. at 285, 478 S.E.2d at 877.

CONCLUSION

For the foregoing reasons, Williams� conviction for shoplifting is AFFIRMED.� Williams� conviction for assault of a high and aggravated nature is REVERSED, and the case is REMANDED for a new trial on the indictment for AHAN.�

AFFIRMED IN PART, REVERSED IN PART, and REMANDED. [1]

GOOLSBY and BEATTY, JJ., concurring.