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

Patrick Guess,        Appellant.

Appeal From Richland County
Henry F. Floyd, Circuit Court Judge

Unpublished Opinion No. 2004-UP-399
Submitted May 12, 2004 � Filed June 22, 2004

AFFIRMED

Assistant Appellate Defender Aileen P. Clare, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, all of Columbia; and Solicitor Warren Blair Giese, of Columbia; for Respondent.

PER CURIAM:� Patrick Guess was convicted of second-degree criminal sexual conduct (CSC) with a minor and sentenced to twelve years imprisonment.� Guess�s appeal was originally filed pursuant to Anders v. California, 386 U.S. 738 (1967).� After reviewing the record and briefs pursuant to Anders, this Court found the only issues of arguable merit were whether assault and battery of a high and aggravated nature (ABHAN) was a lesser-included offense of second-degree CSC with a minor, and, if so, whether the trial judge erred in failing to charge the jury on the lesser-included offense.� The parties have re-briefed these issues, which are the only issues considered on appeal.� We affirm. [1]

FACTS

The State presented evidence at trial that eighteen-year-old Guess lured his fourteen-year-old neighbor (Victim) to an abandoned house and sexually assaulted her.� Victim testified that Guess grabbed her wrist when he led her to the abandoned house, and there he penetrated her vagina during the assault. ��Victim further testified that Guess repeatedly inserted his penis into her vagina and subsequently ejaculated on the ground.� Semen collected from Victim�s underwear was confirmed through DNA testing to be a positive match to Guess.� However, a medical examination of Victim was inconclusive as to penetration.�� Guess did not testify at trial.� However, in his statement to police and in a conversation with Victim�s mother, Guess denied sexually assaulting or even touching Victim.��

At the close of the evidence, Guess requested a charge of ABHAN as a lesser-included offense of second-degree CSC with a minor.� The court denied the request, and Guess was ultimately convicted of second-degree CSC with a minor and sentenced to twelve years imprisonment.� Guess appeals.�

LAW/ANALYSIS

Guess argues the trial court erred in failing to charge the jury on the law of ABHAN because it is a lesser-included offense of second-degree CSC with a minor.� Even assuming ABHAN is a lesser-included offense of second-degree CSC with a minor, the evidence did not support the requested instruction.� See Moultrie v. State, 354 S.C. 646, 648, 583 S.E.2d 436, 437 (2003) (implicitly recognizing ABHAN as a lesser-included offense of CSC with a minor).� Thus, we find no error.

The law charged to the jury is determined by the evidence presented at trial.� State v. Blurton, 352 S.C. 203, 207, 573 S.E.2d 802, 804 (2002).� With regard to lesser-included offenses, �[t]he trial judge is required to charge the jury on a lesser[-]included offense if there is evidence from which it could be inferred that the defendant committed the lesser rather than the greater offense.�� State v. Murphy, 322 S.C. 321, 325, 471 S.E.2d 739, 741 (Ct. App. 1996).� In other words, �where there is no evidence to support a finding that the defendant was guilty of the lesser offense, there can be no error in the failure to charge the lesser offense.�� State v. Gadsden, 314 S.C. 229, 232, 442 S.E.2d 594, 596-97 (1994).� This Court cannot reverse the trial court�s refusal to give a requested jury instruction unless the refusal was both erroneous and prejudicial.� State v. Burkhart, 350 S.C. 252, 263, 565 S.E.2d 298, 304 (2002); State v. Harrison, 343 S.C. 165, 173, 539 S.E.2d 71, 75 (Ct. App. 2000).�

Second-degree CSC with a minor is statutorily defined as the sexual battery of a minor between the ages of eleven and fourteen years old.� S.C. Code Ann. � 16-3-655(2) (2003).� ABHAN, however, is an �unlawful act of violent injury accompanied by circumstances of aggravation.�� State v. Fennell, 340 S.C. 266, 274, 531 S.E.2d 512, 516 (2000).� �Circumstances of aggravation include the use of a deadly weapon, the intent to commit a felony, infliction of serious bodily injury, great disparity in the ages or physical conditions of the parties, a difference in gender, the purposeful infliction of shame and disgrace, taking indecent liberties or familiarities with a female, and resistance to lawful authority.�� State v. Primus, 349 S.C. 576, 580-81, 564 S.E.2d 103, 105-06 (2002).�

In the present case, there is nothing in the record that could support a charge of ABHAN.� Guess not only verbally denied touching Victim, but in his statement to police, he denied having sex with her at all.� At trial, Guess�s counsel contended, �it could be argued that [Guess and Victim] were together, and there was no penetration but a sexual battery.�� Sexual battery, however, is an element of second-degree CSC with a minor.� As the trial judge correctly stated, �either sexual intercourse occurred or it did not.��� If no sexual battery occurred, Guess would simply be found not guilty of second-degree CSC with a minor.� The evidence does not otherwise support a charge of ABHAN.

Under the evidence presented at trial, we conclude the jury could not have inferred Guess took indecent liberties or familiarities with the female victim � an aggravating circumstance that would support a conviction for ABHAN � without finding him guilty of second-degree CSC with a minor.� See Moultrie, 354 S.C. at 648, 583 S.E.2d at 437 (�Under the evidence presented, respondent was guilty of a sexual battery or no battery at all.� In such a case, the defendant is not entitled to a charge of ABHAN as a lesser-included offense of CSCM.�).� Because there was no evidence to support ABHAN, the trial court did not err in declining to charge ABHAN.

CONCLUSION

Based upon the foregoing, Guess�s conviction and sentence are

AFFIRMED.

HEARN, C.J., STILWELL, J. and CURETON, A.J., concur.