South Carolina Court of Appeals Issues New CDVHAN Opinion

On June 6, 2012, the South Carolina Court of Appeals issued an opinion from an appeal on a CDVHAN Conviction in Lexington County. The case is State vs. Bennie Golston. For a complete text of the Court of Appeal's opinion please click here. This was not a case handled by the Law Office of James R. Snell, Jr., LLC.

The central question raised by the appeal was whether or not Judge McMahon made a mistake when he failed to give the jury an opportunity to find the defendant guilty of only CDV, rather than felony level CDVHAN. In this case the defendant was convicted and received a sentence of ten years imprisonment.

For a quick review, the most common domestic violence case prosecuted in South Carolina is criminal domestic violence (CDV). This charge, for first offenses, is prosecuted at the Magistrate or Municipal Court level. It is a misdemeanor punishable by up to thirty days in jail. To be guilty of CDV the defendant must make some type of unwanted physical contact with a victim, attempt to make unwanted physical contact or threaten unwanted physical contact.

Criminal Domestic Violence of a High and Aggravated Nature (CDVHAN) is a felony level charge. It is always prosecuted in General Sessions, and carries a minimum of one year in prison and a maximum of ten years. A defendant doesn't have to have a prior record of CDV offenses to be charged with CDVHAN. What is required is a CDV along with some type of aggravating factor, such as a victim with serious bodily injury.

At trial, the defendant testified that he "slapped her, both sides of the face" after she jumped on him and clawed him with fingernails. The victim's physician though reported that she was "so swollen that he couldn't do the type of exam that he wanted to do." She could not open both of her eyes at first, then after four or five days could open one eye and then a week later could open the other. She reported being attacked with fists, a log and a hatchet.

After the close of evidence the defendant requested that the Court charge the jury on self-defense as well as CDV. The Court refused to charge CDV, finding that as a matter of law the victim's injuries were "serious" under S.C. Code § 16-25-65(A)(1). The Court held that because the facts created a situation where the only possible legal finding was that the injuries were "serious", that the defendant was either guilty of CDVHAN or not-guilty of any crime at all. By finding "no evidence in the record upon which the jury could have found [the defendant] committed CDV instead of CDVHAN, and therefore the trial court properly refused to charge CDV as a lesser-included offense."

The Court's holding creates precedent that can now be used around the state to support findings by the Court, as a matter of law, whether or not injuries are or are not serious enough to constitute a CDVHAN vs. a CDV charge. Under this case extreme cases or either substantial injuries, or no injuries at all, could be dealt with by the trial court at the directed verdict stage, and not necessarily given to the jury. It remains to be seen whether or not the South Carolina Supreme Court will take a look at this case.

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