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2009-UP-204 - State v. Johnson

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.

Roger Johnson, Appellant.


Appeal From Orangeburg County
James C. Williams, Jr., Circuit Court Judge


Unpublished Opinion No.   2009-UP-204
Heard March 18, 2009 – Filed May 18, 2009


AFFIRMED


Joseph L. Savitz, III of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Deputy Attorney General Julie M. Thames, all of Columbia, and Solicitor David M. Pascoe, Jr., of Orangeburg, for Respondent.  

PER CURIAM:  Roger Johnson appeals from his conviction of two counts of assault and battery with intent to kill (ABWIK) and unlawful possession of a firearm.  On appeal, he contends the trial court erred in refusing to charge the jury on the lesser-included offense of assault and battery of a high and aggravated nature (ABHAN).  We affirm pursuant to Rule 220(b), SCACR, and the following authorities:  State v. Franks, 376 S.C. 621, 624, 658 S.E.2d 104, 106 (Ct. App. 2008) ("An appellate court will not reverse the trial court's decision regarding jury instructions unless the trial court abused its discretion."); Hopper v. Evans, 456 U.S. 605, 611 (1982) (stating due process requires a jury instruction on a lesser included offense only when the evidence warrants such an instruction); Dempsey v. State, 363 S.C. 365, 371, 610 S.E.2d 812, 815 (2005) (noting a trial judge is required to charge the jury on a lesser included offense if there is any evidence from which it could be inferred the lesser, rather than the greater, offense was committed); State v. Foust, 325 S.C. 12, 14-15, 479 S.E.2d 50, 51 (1996) (defining ABWIK as an unlawful act of a violent nature to the person of another with malice aforethought and the intent to kill); State v. Sprouse, 325 S.C. 275, 286 n.2, 478 S.E.2d 871, 877 n.2 (Ct. App. 1985) (identifying the elements of ABHAN as an unlawful act of violent injury accompanied by circumstances of aggravation); State v. Coleman, 342 S.C. 172, 177, 536 S.E.2d 387, 389-90 (Ct. App. 2000) (holding the manner in which the defendant used the weapon—pointing the gun at Victim and then deliberately raising the gun to aim at Victim's head just before he fired—could have only been reasonably calculated to kill or cause great bodily harm to Victim); Id. at 178, 536 S.E.2d at 390 (stating the trial court did not commit reversible error in refusing to charge the jury on ABHAN where no competent evidence existed that the defendant committed ABHAN, rather than ABWIK). 

AFFIRMED.

HEARN, C.J., and PIEPER, J., and LOCKEMY, J., concur.