(dissenting):
I respectfully dissent. The majority concludes the trial court erred in refusing to admit certain hearsay statements made by an unknown male bystander. In addition, the majority holds simple assault is a lesser included offense of criminal domestic violence. I disagree as to both issues.
*168I. STATEMENTS MADE BY UNKNOWN MALE BYSTANDER
LaCoste complains the trial court erred in refusing to admit, under the exception for either excited utterance or present sense impression, certain hearsay statements made by an unknown male bystander which corroborated LaCoste’s testimony. I disagree.
The admission of evidence is within the sound discretion of the trial court. State v. McDonald, 343 S.C. 319, 540 S.E.2d 464 (2000); State v. James, Op. No. 3361, 346 S.C. 303, 551 S.E.2d 591 (Ct.App.2001). A court’s ruling on the admissibility of evidence will not be reversed by this Court absent an abuse of discretion or the commission of legal error which results in prejudice to the defendant. State v. Hamilton, 344 S.C. 344, 543 S.E.2d 586 (Ct.App.2001); State v. Mansfield, 343 S.C. 66, 538 S.E.2d 257 (Ct.App.2000).
South Carolina’s hearsay exceptions for excited utterances and present sense impressions are identical to those contained in the federal rules of evidence. State v. Burroughs, 328 S.C. 489, 492 S.E.2d 408 (Ct.App.1997). The Advisory Committee’s Notes to Federal rule 803, subsections (1) and (2) state that when the declarant is an unidentified bystander, the cases indicate hesitancy in upholding the statement alone as sufficient. Fed.R.Evid. 803(1), (2) advisory committee’s note.
A. Excited Utterance Exception
The issue regarding the admissibility under Rule 803(2), SCRE, of hearsay statements made by unknown declarants was examined by our Supreme Court in State v. Hill, 331 S.C. 94, 501 S.E.2d 122 (1998). Hill was found guilty of murdering a police officer in a car wash parking lot after the officer stopped him. Hill’s defense at trial was that someone who had been hiding in the backseat of his car shot the officer. In support of this claim, Hill offered the testimony of Kenneth Grant, who was a block away from the car wash when the shooting occurred. Grant arrived at the car wash fifteen minutes after the shooting. Grant testified in camera that after being at the car wash for approximately fifteen or twenty minutes, he heard an unidentifiable person in the crowd state *169that there were two suspects. The trial judge ruled this hearsay testimony was inadmissible.
On appeal, Hill contended the trial judge erred in refusing to allow Grant to testify as to the hearsay evidence under the excited utterance or res gestae exception. The Supreme Court disagreed with Hill and explained:
Rule 803(2), SCRE, states: “The following are not excluded by the hearsay rule, even though the declarant is available as a witness: ... (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”
The rationale behind the excited utterance exception is that the startling event suspends the declarant’s process of reflective thought, thus reducing the likelihood of fabrication. See State v. Harrison, 298 S.C. 333, 380 S.E.2d 818 (1989) (decided prior to the adoption of the Rules of Evidence but discussed the “excited utterance” exception in relation to res gestae). In determining whether a statement falls within the excited utterance exception, the totality of the circumstances is viewed. Id.
“Statements which are not based on firsthand information, as where the declarant was not an actual witness to the event, are not admissible under the excited utterance or spontaneous declaration exception to the hearsay rule.” 23 C.J.S. Crim. Law § 876 (1989). The hearsay statement of an unknown bystander is admissible under the excited utterance exception only when the circumstances which surround it would affect the declarant in a way that assures its spontaneity and, therefore, its reliability for trustworthiness. People v. Mares, 705 P.2d 1013, 1016 (Colo.App.1985). See also People v. Fields, 71 Ill.App.3d 888, 28 Ill.Dec. 202, 390 N.E.2d 369 (1979) (if nature of event or circumstances indicate bystander did not observe the act, declaration should be excluded); State v. Kent, 157 Mich.App. 780, 404 N.W.2d 668 (1987)(declarant must have had opportunity to personally observe the matter of which he speaks); Commonwealth v. Stetler, 494 Pa. 551, 431 A.2d 992 (1981) (declarant must have perceived the happening); Underwood v. State, 604 S.W.2d 875 (Tenn.Crim.App.1979)(excited utterance of bystanders admissible when declarant observed *170the act and the declaration arose from personal observation). Cf. Crawford v. Charleston-Isle of Palms Traction Co., 126 S.C. 447, 120 S.E. 381 (1923)(under res gestae exception, declarant must have had opportunity to personally observe the matter of which he speaks).
There is no evidence the unidentified declarant witnessed the shooting. Further, it is unknown whether the declarant was under the stress of excitement caused by the event. Therefore, the trial judge did not err in ruling this statement inadmissible.
Hill, 331 S.C. at 99-100, 501 S.E.2d at 125.
Statements made by unidentified declarants are admissible under the excited utterance exception of Rule 803(2) if they otherwise meet the criteria of the rule. Miller v. Keating, 754 F.2d 507 (3rd Cir.1985). Unlike unavailability, which is immaterial to admission under Rule 803, the unidentifiability of the declarant is germane to the admissibility determination. Id. A party seeking to introduce such a statement carries a burden heavier than where the declarant is identified to demonstrate the statement’s circumstantial trustworthiness. Id. At a minimum, when the declarant of an excited utterance is unidentified, it becomes more difficult to satisfy the established case law requirements for admission of a statement under Rule 803(2). Id. “Wigmore defines these requirements as: (1) a startling occasion, (2) a statement relating to the circumstances of the startling occasion, (3) a declarant who appears to have had opportunity to observe personally the events, and (4) a statement made before there has been time to reflect and fabricate.” Id. at 510 (citing 6 J. Wigmore, Evidence §§ 1750-51 (J. Chadbourn rev.1976)).
The situation of an unavailable, anonymous, unknown declarant who makes a hearsay statement presents serious concerns for a court considering whether to admit the statement into evidence. The fact that the statements at issue here were made by an unidentified bystander raises the question of reliability.
In the present case, there is no evidence the circumstances . which surround the hearsay statements affected the unknown declarant in a way that assures the spontaneity of the statement and, therefore, its reliability for trustworthiness. See *171Hill, 331 S.C. at 99-100, 501 S.E.2d at 125. Further, it was never ascertained whether the utterance was made while the unknown declarant was under the stress of excitement caused by the incident, as is required by Rule 803(2), SCRE. Although Officer Jeffrey Cornwell testified the declarant was “agitated,” this state of agitation could have been caused by some event other than the altercation.
Additionally, there was no evidence, other than the declarant’s statement, to establish the unknown declarant was an actual witness to the event and was giving firsthand information. When there is no evidence of personal observation of the startling event, apart from the declaration itself, courts have hesitated to allow the excited utterance to stand alone as evidence of the declarant’s opportunity to observe. See Miller, 754 F.2d at 511. See also State v. Bass, 198 Ariz. 571, 12 P.3d 796 (2000)(where sole evidence of declarant’s personal perception is declaration itself, courts are reluctant to allow excited utterance to stand alone as evidence of declarant’s opportunity to observe); Cluster v. Cole, 21 Md.App. 242, 319 A.2d 320 (Ct.Spec.App.1974)(hearsay declaration by unidentified witness to accident ruled inadmissible where nothing in statement or circumstances under which it was given would make it so inherently trustworthy as to dispense with oath and right to cross-examination). The declarant of an excited utterance must personally observe the startling event before the statement will be admitted. Miller, 754 F.2d at 511.
Officer Cornwell and James Whiting, the mall security officer, testified they did not know whether the man was in fact an eyewitness. All the two men could say with certainty was that the unknown declarant was in the parking lot at the time of LaCoste’s arrest. Officer Cornwell declared he did not “notice” the unknown declarant when he arrived at the scene. The mere fact that the unknown declarant stated he ■witnessed the altercation does not lend any more credence or trustworthiness to the out-of-court statements. See Carney v. Pennsylvania R.R. Co., 428 Pa. 489, 240 A.2d 71 (1968).
There was no proof the unknown declarant had an adequate opportunity to observe the events he described. The man spoke with Officer Cornwell and Officer Whiting after LaCoste was arrested. We have no way of knowing where this uniden*172tified person was at the time the altercation began, what ability this person might have had to hear or see what transpired, and whether the person had a relationship with the defendant so as to be biased or prejudiced in LaCoste’s favor. The allowance of this type of nebulous evidence, which cannot be effectively challenged, is an open invitation to fabrication.
Whether a statement is admissible under the excited utterance exception to the hearsay rule depends on the circumstances of each case and the determination is generally left to the sound discretion of the trial court. State v. Burdette, 335 S.C. 34, 515 S.E.2d 525 (1999). The trial court did not abuse its discretion in concluding the statements were not admissible under the excited utterance exception because there was no sufficient showing of reliability.
B. Present Sense Impression Exception
LaCoste’s assertion that the statements should alternatively be admitted under the present sense impression exception is meritless. Rule 803(1), SCRE provides an exception to the hearsay rule for a present sense impression, which is defined as “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Trustworthiness is the cornerstone of Rule 803 exceptions to the hearsay rule. State v. Bass, 198 Ariz. 571, 12 P.3d 796 (2000). In the case at bar, there is no proof, other than the declarant’s statement, that the unknown declarant “perceived” the altercation.
Viewing the totality of the circumstances, I find the statements of the unknown male bystander should not have been admitted. Thus, the trial court did not err in excluding the testimony of Officer Cornwell and Security Officer Whiting as to the hearsay statements made by the unknown male bystander.
II. SIMPLE ASSAULT IS NOT LESSER INCLUDED OFFENSE OF CRIMINAL DOMESTIC VIOLENCE
LaCoste contends the trial court erred in charging the law of simple assault because it is not a lesser included offense of criminal domestic violence. I agree.
*173A Circuit Court has subject matter jurisdiction only if: (1) there has been an indictment which sufficiently states the offense; (2) there has been a waiver of indictment; or (3) the offense is a lesser included offense of the crime charged in the indictment. State v. Lynch, 344 S.C. 635, 545 S.E.2d 511 (2001); Carter v. State, 329 S.C. 355, 495 S.E.2d 773 (1998). Upon indictment for a greater offense, a trial court has subject matter jurisdiction to convict a defendant for any lesser included offense. Browning v. State, 320 S.C. 366, 465 S.E.2d 358 (1995); State v. Patterson, 337 S.C. 215, 522 S.E.2d 845 (Ct.App.1999).
The scope of the jurisdiction conferred by an indictment is limited to the charged offense and any lesser-included offenses. State v. Gunn, 313 S.C. 124, 437 S.E.2d 75 (1993); State v. Tyndall, 336 S.C. 8, 518 S.E.2d 278 (Ct.App.1999). The trial court lacks subject matter jurisdiction to convict the defendant of a crime that is not a lesser included of the offense charged in the indictment. State v. McFadden, 342 S.C. 629, 539 S.E.2d 387 (2000). See also State v. Roof, 298 S.C. 351, 380 S.E.2d 828 (1989)(defendant cannot be convicted of crime for which he is not indicted if it is not lesser included offense to that charged in indictment). The general rule is that an indictment will sustain a conviction for a lesser offense included within a greater offense charged. State v. Fennell, 263 S.C. 216, 209 S.E.2d 433 (1974).
The test for determining whether a crime is a lesser included offense of that charged in the indictment is whether the greater of the two offenses includes all the elements of the lesser offense. McFadden, 342 S.C. at 632, 539 S.E.2d at 389; Carter, 329 S.C. at 363, 495 S.E.2d at 777; State v. Sprouse, 325 S.C. 275, 478 S.E.2d 871 (Ct.App.1996). Thus, if the lesser offense includes an element not included in the greater offense, then the lesser offense is not included in the greater. Hope v. State, 328 S.C. 78, 492 S.E.2d 76 (1997); State v. Bland, 318 S.C. 315, 457 S.E.2d 611 (1995). See also State v. Easier, 327 S.C. 121, 489 S.E.2d 617 (1997)(lesser offense is included in greater only if each of its elements is always a necessary element of greater offense); 42 C.J.S. Indictments and Informations § 218 (1991)(an offense can be considered as lesser included if, and only if, all essential elements of lesser offense are included among essential elements of great*174er offense). If, under any circumstances, a person can commit the greater offense without being guilty of the purported lesser offense, then the latter is not a lesser-included offense. Knox v. State, 340 S.C. 81, 530 S.E.2d 887 (2000).
Generally, a lesser included offense is one composed of some, but not all, of the elements of the greater offense, and which does not have any element not included in the greater offense, so that it is impossible to commit the greater offense without also committing the lesser offense. 42 C.J.S. Indictments and Informations § 218 (1991). An offense is a lesser included one of another only if, in order to commit the greater offense, it is necessary to commit the lesser. 21 Am.Jur.2d Criminal Law § 353 (1998). Where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense. 41 Am.Jur.2d Indictments and Informations § 299 (1995). The lesser offense is a lesser-included offense if proof of every fact necessary to show the lesser offense must be proven to show the greater, notwithstanding the greater offense may require proof of several additional elements. 21 Am. Jur.2d Criminal Law § 353.
An offense is lesser included if the manner and means used to commit the essential elements of the charged crime include all the elements of the lesser crime. 42 C.J.S. Indictments and Informations § 218. An offense, in order to be a lesser included offense, must be a less serious crime in terms of its classification and degree, and no offense is deemed to be a lesser offense if it carries the same penalty as the crime under consideration. Id. Furthermore, a lesser included offense cannot have a mental state greater than or different from that which is required for the charged offense, nor can it have the same or more serious injury or risk of injury as compared to the charged offense. Id. A lesser included offense is one that requires no proof beyond that which is required for conviction of the greater offense. State v. Cribb, 310 S.C. 518, 426 S.E.2d 306 (1992). The greater offense must include all the elements of the lesser. Id.
In the instant case, LaCoste was charged with criminal domestic violence (CDV). He was convicted of simple assault. For the trial court to have jurisdiction to convict LaCoste for simple assault when he was indicted for CDV, simple assault *175must be a lesser included offense of CDV. Simple assault can be a lesser included offense of CDV only if CDV contains all the elements of simple assault.
South Carolina Code Ann. § 16-25-20 (Supp.2000) sets out the definition of criminal domestic violence:
It is unlawful to: (1) cause physical harm or injury to a person’s own household member, (2) offer or attempt to cause physical harm or injury to a person’s own household member with apparent present ability under circumstances reasonably creating fear of imminent peril.
In contrast, the crime of assault involves an “attempted battery” or an unlawful attempt or offer to commit a violent injury upon the person of another, coupled with the present ability to complete the attempt or offer by a battery. State v. Sutton, 340 S.C. 393, 532 S.E.2d 283 (2000); State v. Mims, 286 S.C. 553, 335 S.E.2d 237 (1985); State v. Murphy, 322 S.C. 321, 471 S.E.2d 739 (Ct.App.1996). In addition, the Court has defined an assault as placing another in apprehension of harm. Sutton, 340 S.C. at 397, 532 S.E.2d at 285. In In re McGee, 278 S.C. 506, 508, 299 S.E.2d 334, 334 (1983), the Supreme Court held that “[w]hile words alone do not constitute an assault, if by words and conduct a person intentionally creates a reasonable apprehension of bodily harm, it is an assault.” (Citation omitted).
Facially, the offense of assault contains two elements not found in the greater offense of CDV- The difference in elements between these two offenses is that (1) an assault requires a “violent” injury, as opposed to the “physical harm or injury” element of CDV and (2) the assault must be to the “person of another,” whereas the CDV is limited to a person’s “own household member.” Each offense requires proof of an element not required by the other. These differences are dispositive. Because CDV does not necessarily include all elements of assault, the latter cannot be a lesser included offense.
Further, the legislative intent is compelling. First, the legislature could have used the phrase, “violent injury,” in § 16-25-20 in place of the phrase, “physical harm or injury,” if it meant for the two phrases to be synonymous. Second, the fundamental purpose of § 16-25-20 of the CDV Act is to *176protect against harm and violence from members of an individual’s household. Arthurs v. Aiken County, 338 S.C. 253, 525 S.E.2d 542 (Ct.App.1999). Household members are the class of persons intended to be protected by the CDV statute. Id. The common law definition of assault refers to a broader protected class, “the person of another.”
The offenses of assault and criminal domestic violence were not contemplated by the legislature to be considered together. The two offenses protect different societal interests. Assault is a broad encompassing common law offense. Criminal domestic violence is a targeted offense to protect “household members.” The legislative purpose of the CDV Act is crystal clear. The intent of the General Assembly is demonstrated with clarity from the language and framework of the legislative enactment.
Assault is not a lesser included offense of criminal domestic violence. The trial court erred in charging the jury as to simple assault. Consequently, the court lacked subject matter jurisdiction to convict LaCoste of assault.
III. CONCLUSION
The trial court did not err in refusing to admit the hearsay statements of the unknown male bystander. However, because simple assault is not a lesser included offense of criminal domestic violence, the trial court committed reversible error in charging the jury as to simple assault. Accordingly, I would reverse LaCoste’s convictions and remand for a new trial.