In the Interest of Joshua S. ( 2003 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

In The Interest Of: S., Joshua, Appellant.

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Appeal From Richland County
Donna S. Strom, Family Court Judge

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Unpublished  Opinion No. 2003-UP-367
Submitted March 26, 2003 - Filed May 21, 2003

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AFFIRMED

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Chief Attorney Daniel T. Stacey, of Columbia; Warren Blair Giese, of Columbia; for Appellant

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Assistant Attorney General W. Rutledge Martin, of Columbia; for Respondent.

PER CURIAM:  Joshua S. appeals from the order of the family court requiring him to cooperate with registration for the Sex Offender Registry.  We affirm.

FACTUAL/PROCEDURAL BACKGROUND

According to the petition in family court, on August 24, 2000, Joshua S. had sexual intercourse with the victim, who was thirteen years old at the time.  A child sexual assault examination protocol indicated that the victim had been assaulted.  In addition, the victim gave a written statement indicating Joshua S. had committed the act.  Joshua S. was sixteen years old at the time of the incident. 

The Solicitor’s Office remanded the case to family court.  Joshua S. pled guilty to criminal sexual conduct with a minor in the second degree.  Although he admitted that he had performed oral sex on the victim, he maintained that the conduct was consensual.  The Honorable Leslie K. Riddle ordered Joshua S. to be evaluated at the Midlands Evaluation Center. At a subsequent hearing, Judge Riddle ordered that before a final disposition of the case, the Department of Mental Health should assess Joshua S. and treat him with medications as deemed appropriate and that he should have a sex offender risk assessment completed. 

The Honorable Donna S. Strom presided over the final hearing held June 19, 2001.  At the hearing, a friend of the victim stated that earlier on the day of the incident, the victim told her how she wanted to talk to Joshua S.  Joshua S. came over to the friend’s home. He and the victim went into a bedroom and locked the door.  The friend looked under the door and saw their clothes on the floor.  When they came out of the room, they were both dressed.  The victim gave Joshua S. a hug at the door. The friend stated she did not hear any screaming or any sort of disruption going on in the room. 

Judge Strom ordered Joshua S. to be committed to the South Carolina Department of Juvenile Justice for an indeterminate period of time not to exceed his twenty-first birthday.  She also ordered him to cooperate with the Sex Offender Registry.  In doing so, she explained, “And If I was looking at this just as this isolated incident I would probably agree [not to have him register], but when I read this report there is more to this whole picture than just this one incident. . .”  She ordered him placed on the registry, “Because of this report as a whole, not because of this incident.” 

DISCUSSION

South Carolina Code Ann. § 23-3-400 et seq. (Supp. 2002) creates a Sex Offender Registry of those convicted of or adjudicated delinquent of certain offenses.  Criminal sexual conduct with minors, second degree is one such offense.  S.C. Code Ann. § 23-3-430(3) (Supp. 2002).  This subsection provides two exceptions where a person convicted or adjudicated delinquent of second degree criminal sexual conduct with a minor is not an offender and is not required to register pursuant to the provisions of the statutes upon the court’s specific finding on the record that the conduct was consensual. 

The first exception is when “the conviction obtained for this offense resulted from consensual sexual conduct, as contained in Section 16-3-655(3) provided the offender is eighteen years of age or less.” South Carolina Code Ann. § 16-3-655(3) (2003) provides:

A person is guilty of criminal sexual conduct in the second degree if the actor engages in sexual battery with a victim who is at least fourteen years of age but who is less than sixteen years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim.

The second exception is where the conviction or adjudication was for “consensual sexual conduct between persons under sixteen years of age.” [1]   Id.

The first exception only applies if the victim is between the ages of fourteen and sixteen years old and the offender is eighteen years old or less.  The second exception applies only when both the victim and offender are under sixteen years old.  In the present case, the victim was thirteen years old and Joshua S. was sixteen years old at the time of the incident.  Thus, neither exception is applicable to this case.  A finding of whether the conduct was consensual was irrelevant to the issue of whether Joshua S. is required by law to register as a sex offender.  Accordingly, we find no error in the family court ordering Joshua S. to register as a sex offender.

AFFIRMED.

CURETON, ANDERSON, and HUFF, JJ., concur.

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[1] South Carolina Code Ann. § 16-3-655(2) (2003) provides, “A person is guilty of criminal sexual conduct in the second degree if the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age.”