All Elements of Domestic Violence 1st Degree Must be Charged to the Jury: State v. Workman

In State v. Workman, decided July 13, 2022, the SC Supreme Court reversed a conviction for CDVHAN (criminal domestic violence of a high and aggravated nature) because the trial court:

  1. Instructed the jurors that they could convict the defendant of domestic violence first degree as a lesser included offense of CDVHAN, and
  2. Instructed the jurors on the elements of DV 1st degree, but
  3. Did not instruct the jurors on the elements of DV 2nd degree, when one of the elements of DV 1st degree is the commission of DV 2nd degree in the presence of a minor.

If a defendant is on trial for domestic violence 1st degree, and one possible way to convict the defendant is by finding that the defendant committed domestic violence second degree + an aggravating factor like committing the offense in the presence of a minor, the jurors must know what the elements of DV 2nd are before they can make an informed decision…

Domestic Violence of a High and Aggravated Nature

To understand the different degrees of domestic violence in SC, we must first look at domestic violence third degree, which is the “baseline” for all DV charges.

Under SC Code § 16-25-20, you can be convicted of third-degree domestic violence if you:

  1. Cause injury to a household member, or
  2. Threaten or attempt to cause injury to a household member.

DV 3rd degree is a misdemeanor punishable by up to 90 days in prison that is usually heard in either the magistrate or municipal court.

SC Code § 16-25-65 says that a person is guilty of domestic violence of a high and aggravated nature – a felony punishable by up to 20 years in prison – if they commit DV 3rd degree and:

  1. The defendant showed “extreme indifference to the value of human life and great bodily injury to the victim results,”
  2. The defendant showed “extreme indifference to the value of human life” and a reasonable person would have feared “imminent great bodily injury or death,” even if there was no accompanying battery, or
  3. The defendant committed DV 1st degree while violating a protection order.

Great Bodily Injury

SC Code § 16-25-10 defines “great bodily injury” as “bodily injury which causes a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of a bodily member or organ.”

Circumstances Manifesting Extreme Indifference to the Value of Human Life

16-25-65 defines “circumstances manifesting extreme indifference to the value of human life” as including, but not limited to:

  • Using a deadly weapon,
  • Choking a person and causing “stupor or loss of consciousness for any period of time,”
  • Committing the offense in the presence of a minor,
  • Committing the offense against a pregnant person,
  • Committing the offense during the commission of a robbery, burglary, kidnapping, or theft, or
  • Using physical force to prevent a person from calling for police or EMS.

As applied in Workman, the jurors were instructed on CDVHAN and CDV 1st offense, which is appropriate because 1) DV 1st degree is a possible element of DVHAN, and 2) DV 1st degree was a lesser included offense in the case.

Elements of Domestic Violence 1st Degree

The problem in Workman arose when the trial court instructed the jurors on the elements of domestic violence 1st degree but not domestic violence 2nd degree.

Although DV 2nd degree was not an option in the case as a lesser included offense, DV 2nd degree is a possible element of DV 1st degree, and, therefore, the jurors could not have reached an informed decision as to guilt on the DV 1st degree offense without also understanding the elements of DV 2nd degree…

What are the elements of domestic violence first degree?

First, the defendant must have committed DV 3rd degree – causing, threatening, or attempting physical harm against a household member. The charge becomes first-degree if the defendant also:

  • Caused great bodily injury or “the act is accomplished by means likely to result in great bodily injury,”
  • Committed domestic violence second degree while violating a protective order,
  • Has two or more convictions for domestic violence in the past ten years,
  • Used a firearm during the offense, or
  • While committing DV 2nd degree, 1) a minor was present, 2) the alleged victim was pregnant, 3) it was committed during the commission of a robbery, burglary, kidnapping, or theft, 4) choked the alleged victim, or 5) prevented the alleged victim from calling police or EMS.

There are five different ways that a person can be convicted of DV 1st degree for actions they took while committing DV 2nd degree; therefore, jurors could not decide whether the defendant committed DV 1st degree without first considering the elements of DV 2nd degree.

Because the trial court in Workman did not also instruct the jurors on the elements of DV 2nd degree, the SC Court of Appeals reversed his conviction for CDVHAN.

Elements of Domestic Violence 2nd Degree

What are the elements of domestic violence second degree?

First, the defendant must have committed DV 3rd degree – causing, threatening, or attempting physical harm against a household member. The charge becomes second-degree if the defendant also:

  • Caused moderate bodily injury or “the act is accomplished by means likely to result in moderate bodily injury,”
  • Committed domestic violence third degree while violating a protective order,
  • Has one prior conviction for domestic violence in the past ten years,
  • Used a firearm during the offense, or
  • While committing DV 3rd degree, 1) a minor was present, 2) the alleged victim was pregnant, 3) it was committed during the commission of a robbery, burglary, kidnapping, or theft, 4) choked the alleged victim, or 5) prevented the alleged victim from calling police or EMS.

In Workman’s case, although DV second degree was not an option for the jurors to choose as a lesser included offense, the trial court was required to instruct them on the elements of DV 2nd degree because it was a possible element of DV 1st degree, which the jurors could choose as a lesser included offense.

Similarly, if a defendant is charged with domestic violence second degree (or if it is an option as a lesser included offense at trial), the trial court must charge the elements of DV 3rd degree because it is one of the elements of DV 2nd degree…

Domestic Violence Defense Lawyers in Charleston, SC

Grant B. Smaldone is a criminal defense lawyer based in Charleston, SC whose law practice is focused on state and federal criminal cases in SC including preliminary hearings in SC state court.

If you’ve been charged with a crime in the Charleston or Myrtle Beach areas, call now at (843) 808-2100 or contact us through our website for a free consultation.


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