State v. Frazier , 302 S.C. 500 ( 1990 )

Finney, Justice:

I respectfully dissent. It is my view that appellant Bobby Frazier’s convictions for assault with intent to commit criminal sexual conduct in the first degree and assault and battery of a high and aggravated nature, under the circumstances of this case, violate the Double Jeopardy Clause of the Fifth Amendment.¹ U.S. Const, amend. V. The majority holds that the facts support conviction for two separate acts. I disagree.

The record reveals that appellant conducted one ongoing varied assault in furtherance of his intent to commit criminal sexual conduct. In my opinion, the majority’s strained application of statutory and common law definitions to the inextricably interwoven facts of this case is inappropriate. Such application, under these circumstances, makes a sham of state and federal constitutional prohibitions against double jeopardy as well as the provision for inclusion of lesser grades within greater offenses. It is undisputed that assault and battery of a high and aggravated nature is a lesser included offense of criminal sexual conduct in the first degree. State v. Mathis, 287 S.C. 589, 340 S.E. (2d) 538 (1986); State v. Drafts, 288 S.C. 30, 340 S.E. (2d) 784 (1986). The United States Supreme Court most recently held that if application of the Blockburger test² reveals “. . . that one [of the offenses] is a lesser included offense of the other, then the inquiry must cease, and subsequent³ prosecution is barred.” (Emphasis added.) Grady v. Corbin, _ U.S. _, 110 S. Ct. 2084, 2090, 109 L. Ed. (2d) 548 (1990). Thus, a defendant cannot be convicted of both the greater offense and its lesser included offenses. See Matthews v. State, 300 S.C. 238, 387 S.E. (2d) 258 (1990).

I would affirm appellant’s conviction and sentence for assault with intent to commit criminal sexual conduct in the first degree and vacate his conviction and sentence for the lesser included offense of assault and battery of a high and aggravated nature.

1 The Double Jeopardy provision protects against multiple punishments for the same offense. Grady v. Corbin, _ U.S. _, 110 S. Ct. 2084, 109 L. Ed. (2d) 548 (1990).

2 Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932).

3 I see no constitutional distinction between subsequent conviction and consecutive punishment for the same act based upon the same facts.