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.

Jonathan Dennis Carter, Appellant.

Appeal From Lancaster County
�Brooks P. Goldsmith, Circuit Court Judge

Unpublished Opinion No. 2008-UP-429
Submitted June 2, 2008 � Filed July 24, 2008

AFFIRMED

Appellate Defender Eleanor Duffy Cleary, South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, Office of the Attorney General, all of Columbia; and Solicitor Douglas A. Barfield, Jr., of Chester, for Respondent.

PER CURIAM: Jonathan Dennis Carter appeals his conviction of second-degree burglary.� He contends the trial court erred in failing to charge the jury on third-degree burglary because he disputed prior burglary convictions in his name and those prior convictions were an element of second-degree burglary.� We affirm.[1]

FACTS

On November 22, 2004, police responded to a report of a cracked window at the First Washington Baptist Church (the Church) in Lancaster, South Carolina, while the Church was closed.� The police discovered two broken windows and some blood around one of the windows and in other parts of the Church.� A vacuum cleaner, a crock pot, a microwave oven, communion glasses, chemical spray, and hot dogs were missing from the Church.� Shortly after their arrival, the police recovered some of the items from a wooded area behind the Church.

That same morning, Carter was spotted carrying a bag and walking from a pawn shop near the Church into the woods.� The police later brought Carter into the police station, where he waived his rights and admitted throwing a cinder block through the church window.� He further confessed to stealing the missing items from the church and eating the hotdogs.

A grand jury indicted Carter for second-degree burglary and petit larceny.� At trial, the State called the Lancaster Clerk of Court (the Clerk) to testify to demonstrate Carter had previously been convicted of two or more burglaries.� However, Carter argued the Clerk�s records did not sufficiently prove Carter had two prior burglary convictions.� The trial court agreed the Clerk�s testimony was insufficient and an assistant solicitor and a sheriff�s deputy both involved in the cases of the prior burglaries testified in camera Carter was the person they dealt with in the prior burglaries.� The trial court determined the State had presented sufficient evidence to create an issue for the jury.� Carter requested the jury be charged with third-degree burglary in addition to second-degree burglary because there was reasonable doubt Carter had committed the previous burglaries.� The trial court stated, �I�ll think about it, but I�m probably not going to charge that.�

At trial, the Clerk testified the Clerk�s office had sentencing sheets indicating Carter pled guilty to burglaries in 2002 and 2004.� The sentencing sheets all listed the defendant as Jonathan Dennis Carter and they contained the same birth date and social security number.� However, the Clerk testified the Clerk�s office did not complete the forms and stated he could not testify as to the accuracy of the information about Carter on the forms.� Thereafter, Deputy Brent Williams testified he had served the warrant on Carter for the 2002 burglary and transported him to the detention center.� He identified Carter as the person he arrested but did not know if Carter was convicted of the charge.

Additionally, Deputy James Shaw testified he arrested Jonathan Dennis Carter at the scene of a burglary in 2004.� He identified Carter as the person he had arrested but did not recall seeing Carter plead guilty to the burglary.� Subsequently, probation agent Tim Williams testified he processed Carter for probation the same day he was sentenced for the 2004 burglary but was not present in the courtroom when the guilty plea was rendered.

At the close of the State�s case, Carter argued the State�s evidence was insufficient to identify Carter as the person convicted of the prior crimes.� Carter did not indicate what relief he sought other than he was not seeking a directed verdict.� The trial court denied the motion.� During closing arguments, Carter argued the State failed to prove beyond a reasonable doubt he had committed two prior burglaries because the State�s evidence of arrest did not prove he was convicted of the prior burglaries.� He further argued no witness testified the information on the sentencing sheets was correct or the signatures on them were his.

The trial court charged the jury on second-degree burglary but not third-degree burglary.� However, the trial court did instruct the jury the State must prove beyond a reasonable doubt Carter had two or more prior convictions of burglary.� The jury convicted Carter of both second-degree burglary and petit larceny.� The trial court sentenced him to life without parole for the burglary because of his two prior convictions for serious offenses.� Additionally, the trial court sentenced him to ten years imprisonment for the petit larceny, to run concurrently.� The trial court also pronounced Carter guilty but mentally ill by stipulation of the parties.� This appeal followed.���

STANDARD OF REVIEW

�In criminal cases, the appellate court sits to review errors of law only.�� State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).� Thus, an appellate court is bound by the trial court�s factual findings unless they are clearly erroneous.� Id.���

LAW/ANALYSIS

Carter argues the trial court erred in refusing to charge the lesser included offense of third-degree burglary.� We disagree.

The trial court is required to charge the law as determined from the evidence presented at trial.� See State v. Gates, 269 S.C. 557, 561, 238 S.E.2d 680, 681 (1977).� If any evidence supports a charge, it should be given.� State v. Burriss, 334 S.C. 256, 262, 513 S.E.2d 104, 108 (1999).� �The trial court commits reversible error if it fails to give a requested charge on an issue raised by the evidence.�� Id.� However, a trial court�s refusal to give a requested charge must be both erroneous and prejudicial to warrant reversal.� State v. Burkhart, 350 S.C. 252, 261, 565 S.E.2d 298, 303 (2002).� Furthermore, �[f]ailure to give requested jury instructions is not prejudicial error where the instructions given afford the proper test for determining the issues.�� Id. at 263, 565 S.E.2d at 304.�

A person is guilty of second degree burglary �if the person enters a building without consent and with intent to commit a crime therein, and . . . [t]he burglary is committed by a person with a prior record of two or more convictions for burglary.�� S.C. Code Ann. � 16-11-312(B)(2) (2003).� �A person is guilty of burglary in the third degree if the person enters a building without consent and with intent to commit a crime therein.�� S.C. Code Ann. � 16-11-313(A) (2003).

The existence of evidence to sustain a lesser offense determines whether the charge should be submitted to the jury.� State v. Funchess, 267 S.C. 427, 430, 229 S.E.2d 331, 332 (1976).� The mere contention the jury might accept the State�s evidence in part and reject it in part will not suffice.� Id. (quoting State v. Hicks, 84 S.E.2d 545, 547 (N.C. 1954)).� In State v. Fields, 356 S.C. 517, 523, 589 S.E.2d 792, 795 (Ct. App. 2003), the defendant was charged with first degree criminal sexual conduct but argued even though he did not testify or present any evidence on his own behalf, the jury could have disbelieved a portion of the State�s evidence and determined the sex was consensual, and thereby found him guilty of the lesser offense of assault and battery of a high and aggravated nature (ABHAN).� However, this court held the defendant�s �mere assertion that the jury might have disbelieved the State�s evidence that the sex was not consensual and on the remaining evidence found him guilty of ABHAN does not entitle him to have the lesser offense submitted to the jury.�� Id. at 523-24, 589 S.E.2d at 795.� See also State v. Tyndall, 336 S.C. 8, 22, 518 S.E.2d 278, 285 (Ct. App. 1999) (holding the possibility the jury might have disbelieved the State�s evidence as to the circumstances of aggravation and on the remaining evidence found the defendant guilty of simple assault and battery did not entitle the defendant to have the lesser offense submitted to the jury when no evidence tended to show defendant was guilty only of simple assault and battery).

At trial, Carter relied on a Second Circuit Court of Appeals case that held, �Without more, a court record showing a conviction of a similarly named person (especially an eighteen-year-old record) cannot conceivably furnish assurance beyond a reasonable doubt that it pertains to the present defendant.�� United States v. Jackson, 368 F.3d 59, 62 (2nd Cir. 2004).� The court further rejected �the government�s proposed rule that sufficiency is satisfied as the result of the defendant�s failure to offer proof in rebuttal.�� Id.�

However, in the present case, the trial court relied on more than just an outdated court record: (1) the Clerk�s records indicated someone named Jonathan Dennis Carter, with the same birth date and social security number, pled guilty to burglary in 2002 and 2004, much more recent than the eighteen-year-old record in Jackson; (2) the arresting officers testified they arrested Carter for burglary in 2002 and 2004; and (3) a probation agent testified he processed Carter on the same day as the 2004 guilty plea.� Carter has only argued the jury might reject the State�s evidence in part, which is not sufficient to warrant a jury charge.� See Funchess, 267 S.C. at 430, 229 S.E.2d at 332.� Accordingly, the trial court did not err in failing to charge the jury with third-degree burglary.

CONCLUSION

Based on the foregoing, the trial court�s decision is

AFFIRMED.

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

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.