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 Supreme Court

Donald S. Becker, Petitioner,

v.

State of South Carolina, Respondent.

Appeal From Georgetown County
Benjamin H. Culbertson, Trial Judge
�Larry B. Hyman, Jr., Post-Conviction Judge

Memorandum Opinion No.� 2010-MO-025
Submitted October 7, 2010 � Filed October 11, 2010

REVERSED

Deputy Chief Appellate Defender Wanda H. Carter, South Carolina Commission on Indigent Defense, Division 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, Assistant Attorney General Christina J. Catoe, of Columbia, for Respondent.

PER CURIAM:� Petitioner seeks a writ of certiorari to review an order denying his application for post-conviction relief (PCR) and granting him a belated review of his direct appeal issues pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974).

Petitioner was convicted of criminal domestic violence of a high and aggravated nature (CDVHAN) and sentenced to ten years� imprisonment.� No direct appeal was taken.� Thereafter, petitioner filed a PCR application alleging he was denied his right to a direct appeal because plea counsel failed to properly perfect an appeal after petitioner asked counsel to do so.[1]� The PCR judge found that petitioner did not knowingly and voluntarily waive his right to a direct appeal.�

Because there is sufficient evidence to support the PCR judge�s finding that petitioner did not knowingly and intelligently waive his right to a direct appeal, we grant the petition for a writ of certiorari, dispense with further briefing, and proceed with a review of the direct appeal issue pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986).

FACTS

On September 24, 2007, the victim gave a statement to police indicating that petitioner hit her on the elbows, knees, and head with an �iron bar� and choked her until she could barely breathe.� The victim further stated that she jumped into a nearby lake to get away from petitioner.� At trial, the victim recanted her statement and testified that petitioner did not attack her, and her head injury was the result of a fall.[2]� The victim also stated that she fell into the lake and did not jump in to avoid petitioner.�

The victim acknowledged giving a statement to police indicating that petitioner attacked her, but she testified that she lied to the police because she and petitioner were fighting and she was angry.� The victim stated that, on the day of the incident, she wanted the police to arrest petitioner because she was drunk and angry and afraid petitioner was going to leave her.�

The victim admitted being an alcoholic and using drugs and testified that she did not remember what she told the police.� The victim testified that, at the time of the attack, she had been drinking vodka for four days, and she commonly �blacks out� when she drinks.� The victim stated that on several occasions she has injured herself by falling.�

Georgetown County Sherriff�s Deputy John Magann testified that he responded to the alleged assault.� Officer Magann testified that, upon his arrival at the scene, he observed an injury to the victim�s forehead and noticed that the victim�s clothing was �soaking wet.�� Officer Magann stated that the victim appeared �highly upset� and smelled of alcohol.� Officer Magann testified the victim informed him that she had been drinking, but she did not believe she was drunk.� The victim told Officer Magann that petitioner inflicted her head injuries with an iron bar and choked her until she could barely breathe and that she jumped in the nearby lake to get away from petitioner.� Officer Magann stated that he did not observe any marks, scratches or bruising around the victim�s neck, but, based on his ten years of experience as a first responder, the victim�s head injuries were consistent with being inflicted by a metal pipe.�

Officer Magann testified that he followed the victim to the area where the incident occurred[3] to look for petitioner and other evidence of the crime.� Officer Magann stated that he observed charred remnants of a steel-framed tent, but he did not find petitioner or any piece of pipe appearing to have been used in the attack.� He also testified that he did not observe any sharp objects on the embankment leading to the nearby lake.�

Donna Roberts, an emergency room nurse at Waccamaw Community Hospital, testified that she treated the victim on the day of the incident.� Roberts testified that when the victim arrived at the hospital, her clothes were soaking wet, she was bloody, and she had leaves and twigs in her hair.� Roberts testified that the victim had two wounds on her head�one on her forehead and another on the top of her head.[4]� Roberts stated that the victim�s medical records reflected no other trauma, bruising, or tenderness on her elbows or knees.�

Roberts further stated that the victim appeared to be intoxicated and under duress.� Roberts testified that, in spite of the intoxication, the victim appeared to understand her questions and respond appropriately, and did not appear to have difficulty recalling how she became injured.� Roberts testified that the victim told her that she had been hit in the head with a lead pipe by her boyfriend.� Roberts stated that the victim�s injuries were consistent with being inflicted by a pipe and were inconsistent with falling down.�

Prior to the jury charge, petitioner objected to the trial court�s proposed CDVHAN instruction, arguing it improperly instructed the jury that the State could prove an accompanying element of aggravation by demonstrating a disparity in the ages or physical condition of the parties or a difference in gender.� Petitioner argued such an instruction was improper

under S.C. Code Ann. � 16-25-65 (Supp. 2009) and asked the trial court to charge the jury under the plain language of the statute, which does not reference aggravating circumstances.�

The trial court denied petitioner�s motion and thereafter instructed the jury on CDVHAN as follows:

In order to convict [petitioner] of [CDVHAN] the State must prove beyond a reasonable doubt that [petitioner] caused physical injury to a member of [petitioner�s] own household accompanied by circumstances of aggravation.

. . .

Circumstances of aggravation can include a great disparity in the ages or physical condition of the parties, a difference in gender, serious bodily injury to the victim or the use of a deadly weapon.

(emphasis added).��

ISSUE

Did the trial court erroneously instruct the jury on the offense of CDVHAN?

DISCUSSION

Petitioner argues the trial court�s jury instructions on CDVHAN improperly expanded the definition of the offense, permitting the jury to convict on aggravating circumstances that were supported by the facts of the case but not intended by the legislature.� We agree.

An appellate court will not reverse a trial judge�s decision about jury instructions absent an abuse of discretion.� State v. Pittman, 373 S.C. 527, 647 S.E.2d 144 (2007).� An abuse of discretion occurs where the trial court�s ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support.� Id.

The trial judge is required to charge the current and correct law of South Carolina.� State v. Taylor, 356 S.C. 227, 589 S.E.2d 1 (2003).� A trial court commits reversible error where it instructs the jury on elements that are not included in the statutory offense.� State v. Rothell, 301 S.C. 168, 391 S.E.2d 228 (1990) (finding reversible error where a trial court instructed the jury on an issue that was not an element of the statutory offense because the jury could have been misled).�

To warrant reversal, a trial judge�s charge must be both erroneous and prejudicial.� Taylor, supra.� If a jury instruction is deemed erroneous, the Court must determine whether there is a reasonable likelihood that the jury applied the improper instruction in a way that violates the constitution.� Tate v. State, 351 S.C. 418, 570 S.E.2d 522 (2002).� Due process forbids the State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt.� Bunkley v. Florida, 538 U.S. 835 (2003).�

In determining whether an erroneous instruction is prejudicial, the evidence will be construed in the light most favorable to the accused.� State v. Bradley, 126 S.C. 528, 120 S.E. 240 (1923).� An insubstantial error not affecting the result of the trial is harmless where guilt has been conclusively proven by competent evidence such that no other rational conclusion can be reached.� State v. Pagan, 369 S.C. 201, 631 S.E.2d 262 (2006).���

South Carolina Code � 16-25-65(A) states that a person is guilty of CDVHAN when a person commits one of the following:

(1) an assault and battery which involves the use of a deadly weapon or results in serious bodily injury to the victim; or

(2) an assault, with or without an accompanying battery, which would reasonably cause a person to fear imminent serious bodily injury or death.

S.C. Code Ann. � 16-25-65(A) (Supp. 2009).� Although the statute formerly incorporated the elements of assault and battery of a high and aggravated nature (ABHAN),[5] the statute was amended in 2003, and the language incorporating ABHAN was removed.

Petitioner argues the trial court�s charge improperly led to a guilty verdict because it allowed the jury to convict on factual elements of the case that were not contemplated by the legislature.� Specifically, petitioner claims that �a great disparity in the ages or physical condition of the parties� and �a difference in gender� are not proper elements upon which a jury may convict a person of CDVHAN.�

In return, the State argues that the jury instructions, on the whole, charged the correct law, including the elements involving serious bodily injury and the use of a deadly weapon.� However, the State argues that, assuming the jury charge was improper, any error did not contribute to the verdict and did not prejudice petitioner because the State presented overwhelming evidence of petitioner�s guilt on the proper elements of CDVHAN.�

The trial court�s jury instruction amounted to an error of law because it permitted the jury to convict petitioner of CDVHAN based on a finding that petitioner caused physical harm to the victim, coupled with a difference in gender or a disparity in age or physical condition, which are not elements of the statutory offense.� See Bunkley, supra; Pittman, supra; Taylor, supra; Tate, supra; Rothell, supra.� There is no way to determine from the record whether the jury found petitioner guilty based on a proper finding that petitioner inflicted serious bodily injury or used a deadly weapon, or whether the jury found petitioner merely caused some physical harm accompanied by a difference in gender or a disparity in age or physical condition, which are not proper elements of CDVHAN.� See S.C. Code Ann. � 16-25-65(A) (Supp. 2009).�

Further, construing the evidence in the light most favorable to petitioner, the jury could have found petitioner guilty of the lesser included offense of simple criminal domestic violence (CDV).[6]� See S.C. Code Ann. � 16-25-10(A) (Supp. 2009); Bradley, supra.� Despite the victim�s statement to police that petitioner hit her on her knees and elbows and strangled her, Officer Magann testified that he observed no marks on the victim�s neck, and the victim�s medical chart indicated no trauma on her body aside from the two head wounds.� Further, Nurse Roberts testified that head wounds bleed profusely if one of the many blood vessels in the head is damaged.

Construing that evidence in the light most favorable to petitioner, the jury could have attributed the excessive amount of blood to the fact that the wound was located on the victim�s head, and the jury reasonably could have determined that petitioner caused some physical harm, but did not seriously injure the victim or use a deadly weapon.� Thus, had the CDVHAN charge not improperly included �a disparity in the ages or physical condition of the parties� or �a difference in gender� as aggravating circumstances, the jury may have found petitioner not guilty of CDVHAN, but guilty of the lesser included offense of CDV.� Accordingly, because it is unclear whether the jury found each element of CDVHAN beyond a reasonable doubt, and the erroneous jury instruction was not harmless beyond a reasonable doubt, the instruction constitutes reversible error.� See Bunkley, supra; Pagan, supra; Taylor, supra; Tate, supra; Rothell, supra.

Because resolution of this issue is dispositive, we decline to address the remaining issues raised by petitioner.� See State v. Allen, 370 S.C. 88, 634 S.E.2d 653 (2006) (declining to address remaining issues where resolution of prior issue is dispositive).

CONCLUSION

Because the trial court�s jury instruction amounted to an error of law and the erroneous jury instruction was not harmless beyond a reasonable doubt, petitioner�s conviction is

REVERSED.

TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.

[1] The State conceded that petitioner was denied his right to a direct appeal.�

[2] During the victim�s testimony, the trial judge instructed petitioner to discontinue signaling answers to the witness.� Further, we note the victim was granted immunity for lying under oath.�

[3] The victim told Officer Magann that the incident occurred where she, petitioner, and another man lived in a tent near a lake in Murrells Inlet.� Initially, the three lived in a metal-framed tent, but that tent burned, and they thereafter crafted another tent by tying a rope between two trees and draping a mesh tarp over it.�

[4] Roberts testified that the wound on the victim�s forehead was about two inches long, and the hospital staff was easily able to control the bleeding from that wound.� However, Roberts stated that the wound on the top of the victim�s head was about three inches long and bled profusely for some time.� Roberts stated that the head is very venous, and bleeding can be difficult to control if you �nick� one of the many veins in the head.�

[5]ABHAN is defined as an unlawful act of violent injury to the person of another, accompanied by circumstances of aggravation, such as the use of a deadly weapon, the infliction of serious bodily injury, the intent to commit a felony, the great disparity of the ages and physical conditions of the parties, a difference in sexes, indecent liberties or familiarities with a female, the purposeful infliction of shame and disgrace, resistance to lawful authorities, and others.� See State v. Jones, 133 S.C. 167, 130 S.E. 747 (1925), overruled on other grounds by State v. Foust, 325 S.C. 12, 479 S.E.2d 50 (1996).

[6] The jury was instructed on CDV.�