THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON 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.

Albert Scruggs,        Appellant.

Appeal From Richland County
G. Thomas Cooper, Circuit Court Judge

Unpublished Opinion No. 2004-UP-226
Submitted January 29, 2004 � Filed March 30, 2004

REMANDED

Assistant Appellate Defender Robert M. Pachak, Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General W. Rutledge Martin, all of Columbia; and Solicitor Warren B. Giese, of Columbia, for Respondent.

PER CURIAM:� Albert Scruggs was convicted of second-degree burglary, kidnapping, and assault with intent to commit first-degree criminal sexual conduct.� The circuit court sentenced him to fifteen years imprisonment for second-degree burglary, life imprisonment without parole for kidnapping, and life imprisonment without parole for assault with intent to commit first-degree criminal sexual conduct, the sentences to run concurrently.� Scruggs appeals, arguing the circuit court lacked subject matter jurisdiction because the State�s indictment against him for assault with intent to commit first-degree criminal sexual conduct was jurisdictionally defective.� We remand.

FACTUAL/PROCEDURAL BACKGROUND

A grand jury indicted Scruggs for second-degree burglary, kidnapping, and assault with intent to commit first-degree criminal sexual conduct.� During the trial, the State moved to amend the indictment for assault with intent to commit criminal sexual conduct, and the circuit court granted the motion.� Subsequently, Scruggs was convicted on all the charges.� Scruggs appeals.

DISCUSSION

Scruggs argues the circuit court lacked subject matter jurisdiction over his charge for assault with intent to commit first-degree criminal sexual conduct because the State�s indictment was jurisdictionally defective.�

�Issues related to subject matter jurisdiction Search Term Begin Search Term End may be raised at any time.�� Carter v. State, 329 S.C. 355, 362, 495 S.E.2d 773, 777 (1998). A circuit court has subject matter jurisdiction if: �(1) there has been an indictment which sufficiently states the offense; (2) there has been a waiver of indictment; or (3) the charge is a lesser included offense of the crime charged in the indictment.�� Id.�� �The true test of the sufficiency of an indictment is not whether it could be made more definite and certain, but whether it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.�� Browning v. State, 320 S.C. 366, 368, 465 S.E.2d 358, 359 (1995).�

A circuit court lacks subject matter jurisdiction if the indictment fails to allege an essential element of the offense charged.� Mathis v. State, 355 S.C. 87, 92, 584 S.E.2d 366, 368-69 (2003) (holding where State�s indictment for first-degree burglary failed to allege an aggravating circumstance, the circuit court lacked subject matter jurisdiction).

South Carolina Code Annotated section 16-3-652 (2003) states a person is guilty of criminal sexual conduct in the first degree if:

the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven: (a) The actor uses aggravated force to accomplish sexual battery. (b) The victim submits to sexual battery by the actor under circumstances where the victim is also the victim of forcible confinement, kidnapping, robbery, extortion, burglary, housebreaking, or any other similar offense or act.� (c) The actor causes the victim, without the victim�s consent, to become mentally incapacitated or physically helpless by administering, distributing, dispensing, delivering, or causing to be administered, distributed, dispensed, or delivered a controlled substance, a controlled substance analogue, or any intoxicating substance.

The caption for the indictment for assault with intent to commit first-degree criminal sexual conduct stated, �ASSAULT WITH INTENT TO COMMIT CRIMINAL SEXUAL CONDUCT, 1ST SC Code:� 16-3-656, 652(2)[,]� and the body alleged, �THAT ALBERT SCRUGGS DID IN RICHLAND COUNTY ON OR ABOUT JUNE 6, 2002, WILFILLY, UNLAWFULLY, AND FELONIOUSLY ATTEMPT TO COMMIT A SEXUAL BATTERY UPON AND WITH THE BODY OF MARGARET LEWIS.�� (emphasis as in original).�

During the trial, the State amended the indictment, adding the following to its body,

WITHOUT HER CONSENT.� SUCH SEXUAL BATTERY WAS ACCOMPLISHED BY THE USE OF AGGRAVATED FORCE TO WIT:� THE INTENT TO COMMIT A FELONY AND/OR DESPARITY [SIC] BETWEEN THE PHYSICAL CONDITIONS OF THE PARTIES AND/OR A DIFFERENCE IN SEXES AND/OR INDECENT LIBERTIES OR FAMILIARITIES WITH A FEMALE.� AND/OR IS ALSO THE VICTIM OF FORCEABLE CONFINEMENT, KIDNAPPING, BURGLARY, OR OTHER SIMILAR OFFENSE.� ALL IN VIOLATION OF SC CODE OF LAWS 16-3-656. AND SC CODE OF LAWS 16-3-652.

(emphasis as in original).�

The State�s original indictment for assault with intent to commit criminal sexual conduct does not state an aggravating circumstance listed in section 16-3-652.� Thus, the circuit court lacked subject matter jurisdiction on the original indictment.� See Mathis, 355 S.C. at 92, 584 S.E.2d at� 368-69 (holding where State�s indictment for first-degree burglary failed to allege an aggravating circumstance, the circuit court lacked subject matter jurisdiction).� Consequently, we must determine if the State�s amendment was an action by the grand jury, for if it was not, the State could not amend the indictment, adding the substantive elements, to vest the circuit court with subject matter jurisdiction.� See State v. Ervin, 333 S.C. 351, 356, 510 S.E.2d 220, 223 (Ct. App. 1998) (holding the circuit court may not acquire subject matter jurisdiction by permitting the State to amend an otherwise jurisdictionally-defective indictment); see also Stirone v. United States, 361 U.S. 212, 218 (1960) (�The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.�); United States v. McGrath, 558 F.2d 1102, 1105 n. 3 (2nd Cir. 1977) (�The principal justification for barring amendment by the court or prosecutor is the possibility that the Grand Jury might have voted no bill on the amended facts. When the amendment is made by the Grand Jury, this danger does not exist.�); 41 Am Jur. 2d Indictments and Informations � 173 (1995) (stating an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form).

The State amended the body of the indictment to allege aggravating circumstances.� Adjacent to the amended language are the initials, �WSS� and then the statement �AS AMENDED,� with a signature, from someone other than the person who initialed the amendment, and the date.� No evidence exists within the record indicating who either initialed or signed the indictment�s amendment.� However, neither of the signatures are that of the presiding circuit court judge.� Furthermore, the State, in its respondent�s brief, contends the amendment could have been the foreperson of the grand jury.�

Given the record before us, we cannot determine whether the grand jury approved the amended language of the indictment.� Thus, we remand this matter to the circuit court for a factual determination as to whether the amendment was submitted to the grand jury.� See State v. Grim, 341 S.C. 63, 67, 533 S.E.2d 329, 330 (2000) (holding where indictment did not disclose if it was true-billed, the appropriate remedy was to remand the case to the circuit court).

CONCLUSION

For the foregoing reasons, this appeal is REMANDED to the circuit court.

GOOLSBY, HOWARD, and KITTREDGE, JJ., concurring.