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STATE v. HEYWARD

No. 3503.

350 S.C. 153 (2002)

564 S.E.2d 379

The STATE, Respondent, v. Benjamin HEYWARD, Appellant.

Court of Appeals of South Carolina.

Decided May 28, 2002.

Rehearing Denied June 19, 2002.

Attorney(s) appearing for the Case

Assistant Appellate Defender Robert M. Pachak, of S.C. Office of Appellate Defense, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Attorney General Caroline C. Tiffin, all of Columbia; and Solicitor David P. Schwacke, of N. Charleston, for respondent.

HEARN, C.J.

Benjamin Heyward appeals his conviction for assault with intent to commit first degree criminal sexual conduct (ACSC), contending the trial judge improperly charged the jury by defining the lesser included offense of assault and battery of a high and aggravated (ABHAN) as including the element of "sudden heat and passion upon sufficient legal provocation." We reverse and remand.1

FACTS

On March 29, 1997, the...

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