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2010-UP-567 - State v. Bryant

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 Court of Appeals

The State, Respondent,

v.

Rip Patrick Bryant, Appellant.


Appeal From Pickens County
G. Edward Welmaker, Circuit Court Judge


Unpublished Opinion No.   2010-UP-567
Submitted December 1, 2010 – Filed December 31, 2010


AFFIRMED


Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Julie M. Thames, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.

PER CURIAM:  Rip Patrick Bryant appeals his conviction for assault and battery of a high and aggravated nature (ABHAN), arguing the trial court erred in (1) denying his motion for a continuance due to an illegally and irregularly impaneled jury and (2) denying his motion for a jury instruction on the lesser included offense of simple assault and battery.   We affirm.[1]

1. Bryant argues the trial court committed reversible error in denying his motion for a continuance.  We disagree.  "The conduct of a criminal trial is left largely to the sound discretion of the trial judge, who will not be reversed in the absence of a prejudicial abuse of discretion."  State v. Bryant, 372 S.C. 305, 312, 642 S.E.2d 582, 586 (2007).  Notably, "a trial court is given enormous discretion in conducting a criminal trial."  Id. at 313, 642 S.E.2d at 587.  Moreover, "'the [statutory] provisions as to the drawing and summoning of jurors are usually . . . not mandatory.'"  State v. Smith, 200 S.C. 188, 196, 20 S.E.2d 726, 730 (1942) (quoting State v. Rasor, 168 S.C. 221, 233, 167 S.E. 396, 401 (1933)).  Section 14-7-1100 of the South Carolina Code (Supp. 2009) requires that jurors in criminal cases be impaneled according to "established practice," but "'established practice' does not refer to only one method of impaneling a jury" and the court need not use the "most common" method of impaneling.  Bryant, 372 S.C. at 313, 642 S.E.2d at 587 (internal quotations omitted).  If there is an irregularity in the impaneling of jurors, that irregularity is insufficient to set aside a verdict unless a party objected before the returning of the verdict and the irregularity injured the objecting party.  S.C. Code Ann. § 14-7-1140 (Supp. 2009).  Thus, a defendant is not entitled to a full jury venire so long as a sufficient number of jurors remain from which to draw the jury.  State v. Rogers, 263 S.C. 373, 382, 210 S.E.2d 604, 609 (1974). 

Here, the trial court did not abuse its discretion in impaneling jurors after qualification by drawing the present jurors' badges from a box.  The jury was not illegally impaneled because the procedures for drawing and impaneling jurors generally are not mandatory.  Bryant, 372 S.C. at 313, 642 S.E.2d at 587; Smith, 200 S.C. at 196, 20 S.E.2d at 730.  Bryant did not argue at trial that the method used was against established practice, and he failed to present evidence that the method prevented him from receiving a fair trial by an impartial jury.  Although the jury was not illegally impaneled, the jury was irregularly impaneled because an erroneous phone message left by the court caused nineteen of the fifty-three qualified jurors to be absent for impaneling.  Despite the reduced number of present jurors, however, the irregularity did not prejudice Bryant.  He was not entitled to a full jury venire, and he produced no relevant evidence that the remaining jury pool was tainted.  Accordingly, the trial court properly denied Bryant's objections to the jury impaneling.  

2. Bryant next argues the trial court erred in denying his motion for a jury instruction on the lesser included offense of simple assault and battery.  We disagree.  "To warrant reversal, a trial court's refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant."  State v. Gaines, 380 S.C. 23, 31, 667 S.E.2d 728, 732 (2008).  A trial court properly "refus[es] to charge a lesser included offense where there is no evidence tending to show the defendant was guilty only of the lesser offense."  State v. White, 361 S.C. 407, 412, 605 S.E.2d 540, 542 (2004).  "ABHAN is an unlawful act of violent injury accompanied by circumstances of aggravation. . . .  Circumstances of aggravation include . . . great disparity in the ages or physical conditions of the parties, [and] a difference in gender . . . ."  Id. at 412, 605 S.E.2d at 543 (internal quotations and citations omitted).  "Simple assault and battery is an unlawful act of violent injury to another, unaccompanied by any circumstances of aggravation."  Id. at 413, 605 S.E.2d at 543 (emphasis in original). 

Here, the record provides evidence that Bryant was not guilty of only simple assault and battery.  Accordingly, the trial court properly denied Bryant's motion for a jury instruction on simple assault and battery as a lesser included offense of ABHAN.

AFFIRMED.

THOMAS, PIEPER, and GEATHERS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.