State v. Philip Guderyon

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Philip David Guderyon, Appellant.

Appellate Case No. 2017-002168

Appeal From Horry County
Benjamin H. Culbertson, Circuit Court Judge

Opinion No. 5955
Heard October 12, 2021 – Filed December 7, 2022

AFFIRMED

Appellate Defender Susan Barber Hackett, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., both of Columbia, and Solicitor Jimmy A.
Richardson, II, of Conway, all for Respondent.

MCDONALD, J.: Philip Guderyon appeals his conviction for assault and battery
of a high and aggravated nature, arguing the circuit court erred in failing to grant
his motion for a directed verdict and in instructing the jury on self-defense and
intent. We affirm.

Facts and Procedural History
On October 16, 2015, Justin Hodges (Victim) and his girlfriend, Mariah Stevens,
went to Carlos 'n Charlie's in Myrtle Beach to play pool and meet some friends.
Appellant and his friend, James "Jimer" Petrocine, were also at Carlos 'n Charlie's
that night. At some point, Appellant punched Victim in the face or head; Victim
suffered severe brain trauma and ultimately died. Once he was identified, arrested,
and transported to the Myrtle Beach Police Department, Appellant admitted to
striking Victim but claimed he acted in self-defense. The Horry County grand jury
subsequently indicted Appellant for assault and battery of a high and aggravated
nature (ABHAN).

At trial, witnesses described the events at Carlos 'n Charlie's, the bouncers'
response to Victim's injury, and the subsequent law enforcement investigation.
Jimer testified he was out on the dance floor when Stevens approached him. Jimer
was playing with Stevens's breasts when Victim grabbed his arm and said "that's
my girlfriend." Jimer responded, "well you can have your girl," and the two men
shook hands. According to Jimer, at that point, "[i]t was done; it was over with.
There was no extra beef with it really." However, just as Jimer was turning away,
he "felt some wind come over [his] shoulder" and heard "like a hit, and then
[Victim] was on the ground." Jimer testified he did not feel threatened by Victim,
he was not scared, and he was not in need of protection because there "was nothing
to protect." He did not see any punches thrown, nor did he see what caused Victim
"to go down." Jimer believed Appellant was standing next to the bar when Victim
hit the floor, but he later learned Appellant was the person who struck Victim.

Stevens's account differed—Stevens claimed she "went to give [Jimer] a hug and
he touched my breast." "So I told him not to touch me and I went and said
something to [Victim], and he went and talked to [Jimer]." After the two men
talked, they all played pool together and "everything was fine." Stevens never
witnessed any aggression from either man. As Stevens and Victim were leaving,
Stevens went to the restroom and Victim stood against a wall toward the entrance
talking to someone1 while he waited for her, but when Stevens returned, "he was
gone." Stevens did not see what happened, but she was "certain that there was no
sort of physical altercation or anything" before she went to the restroom.

Other witnesses recounted the events that occurred while Stevens was in the
restroom. It is undisputed that when he was struck and fell to the floor, the club's
bouncers did not wait for medical personnel to arrive before moving the

1
Stevens noted, "I think he was talking to Jimer, I don't remember."
unconscious Victim. Instead, they dragged him through the bar, dropping him
inside at least once before they left him outside. Victim was then transported to
Grand Strand Medical Center where he underwent brain surgery.

Hospital staff called the Myrtle Beach Police Department in an effort to determine
Victim's identity; they gave law enforcement two phones, two sets of keys, and a
wallet, in which officers found an identification card. Officers then went to
Broadway at the Beach, where Carlos 'n Charlie's is located, and "started walking
through the parking lot clicking key fobs." When a car chirped, the police ran the
tag and learned the vehicle belonged to Victim. Inside, officers found a woman's
purse and some mail addressed to the victim and two other individuals. They then
searched Facebook for Victim's name, seeking a photograph or other information
that might assist the investigation. Officers also went Carlos 'n Charlie's to gather
video surveillance.

Dr. Joseph Cheatle, the neurosurgeon who treated Victim at Grand Strand, testified
Victim suffered a subgaleal hematoma on the back of his head as well as a
subdural hematoma on the right frontal lobe of his brain. He explained:

[A]nytime you have an injury or a stop, just like when
you're in a car and you push on the brakes real hard and
the seat belt holds you, the brain does the same thing
where it can basically glide and that causes what's called
a [contrecoup]. In other words, the opposite injury. So,
you can have either [coup], which means at the direct
site, or a [contrecoup] injury. So, what happens is that
you have something that hits you, you can have the exact
opposite so contra meaning opposite, [coup] means area
of injury. You have the opposite area that actually has
the hemorrhage, and so that's what it appears that
happened to [Victim] was he had a force applied to the
back of his head; but the front of his head on the exact
opposite trajectory received the bleed.

Dr. Cheatle performed a decompressive craniotomy to open a skull flap and relieve
the pressure on Victim’s brain. However, after several days, Victim's brain began
to swell. In an effort to save Victim's life, doctors performed a second surgery to
remove his frontal lobe. Dr. Cheatle testified that although Victim suffered a
vascular skull fracture, he did not have a black eye nor any facial bruising. In his
opinion, "[Victim] had an assault to the back of his head." Dr. Cheatle admitted on
cross-examination that while he had no knowledge of the specific mechanism of
Victim's injury, the force to the back of Victim's head was caused by a single blow.
This blow could have come from human contact, such as a punch, an object
employed by a human being like "a bat, a blunt object, or pipe wrench," or even a
hard surface like a brick wall.

At the close of the State's case, Appellant moved for a directed verdict on the basis
that the State failed to prove causation as to Victim's injury, specifically the
mechanism of the blow to the back of his head. Appellant argued Dr. Cheatle's
testimony created an uncertainty entitling him to an acquittal as a matter of law.
Yet, Appellant conceded he told police he struck Victim in the face, and it was
possible Victim suffered the brain trauma as a result of falling and striking his head
on the floor.

In response, the State argued the circumstantial evidence, including the video
surveillance, demonstrated Appellant sucker-punched Victim in the back of the
head. When the circuit court asked whether the State was "shifting gears" and
arguing Appellant could have punched Victim in the front of his head, the State
claimed it was not pursuing a frontal blow theory due to Dr. Cheatle's testimony
and Victim's lack of facial bruising. Still, the State eventually conceded a jury
could determine Victim received a frontal blow and the fatal injury resulted from
his head striking the floor. The State emphasized it was undisputed Appellant
punched Victim and great bodily injury resulted from the blow to the back of
Victim's head.

The circuit court denied Appellant's motion, stating it "was a close call." The
circuit court elaborated:

I've reviewed the case law and it deals with the existence
of evidence and, even though the State—I don't know
that there's evidence that proves their theory or where a
reasonable juror can rely upon beyond a reasonable doubt
that there was a sucker punch to the back of the head,
they certainly have presented evidence that there was a
punch by the [Appellant], that created great bodily injury
to the victim and coupled with—what was it the doctor—
well, that's substantiated by Dr. Cheatle's testimony of
the great bodily injury, and [Jimer]'s testimony that no,
there was no hassle, we shook hands, we were okay, and
then I felt this whoosh come over my shoulder.
What I was wrestling with and I want to put it on the
record is what do you do when, yes, there is enough
evidence of a crime but not based upon the State's theory,
I mean, I don't see where there is any evidence of a
sucker punch to the back of the head, but that's the State's
case, that's the State's theory, that's what the State is
going on. Now, they have raised the argument in defense
of the directed verdict, that it doesn't matter. Well, that
hasn't been their theory at all along. I can't find a case on
point in that regard. And so based upon that, I'm gonna
go ahead and I'm gonna deny your motion although it is
the State's theory that there is a sucker punch to the back
of the head. But I think there is enough evidence to get
to the jury that there was a punch that caused—there is
evidence that it was a likelihood or did cause great bodily
injury and based upon [Jimer]'s testimony that we were
okay gets around the self-defense at this juncture.

During the defense's case, Ambrose Heavener—who met Appellant while the two
were jailed at the Horry County Detention Center—testified he was at Carlos 'n
Charlie's on the night of the incident. He recalled "there was an altercation"
between two men, which progressed from a loud argument, but "it wasn't really a
fight per [se], it was just, you know, [a] standoff, with a, you know, a swing and
that was it." The two men stood "chest to chest, face to face, it looked like they
were going at it pretty good for a minute there and, you know, standing with their
fists kind of balled at their sides and just looked like they were fixing to start a
fight, basically." Appellant approached this altercation and put his hands in
between the men, "kinda trying to separate them, calm it down." When Appellant
interceded, "the taller fellow turned real fast toward [Appellant] like he was going
to hit him, and, from what I could tell, it looked like he was about to hit him. And
when that happened is when [Appellant] swung and hit him and he fell down." "It
looked to me like [Appellant's punch] hit [Victim] on the face on the left side
because he was standing on that side of him."

Steven Sumpter, another jailhouse witness, also claimed he was at Carlos 'n
Charlie's the night Victim was struck. Sumpter testified he was sitting at the bar
when he saw Appellant "get up and go towards what looked like a little commotion
going on over near the dance floor." Appellant approached the ongoing verbal
argument between Jimer and Victim and "got in between the two of them." The
larger man then threw a punch at Appellant, who responded by hitting "him right in
the face. I'm not sure if it was the nose or where, but [Appellant] hit [Victim] in
the face." Sumpter continued, "Yeah, he went straight back. . . . like a sack of
potatoes. He just went straight backwards. Like, you know, he had like nothing
there, he's just out on his feet." When asked whether Victim had any control over
his limbs as he fell, Sumpter replied, "None whatsoever. It was like [Appellant]
knocked him out with one punch."

At the conclusion of the defense's case, Appellant renewed his motion for a
directed verdict, which the circuit court again denied. The court subsequently
instructed the jury on ABHAN, assault and battery in the second degree, assault
and battery in the third degree, and self-defense. During deliberations, the jury
asked, "[A]re we to consider intent as to which level of assault this is or is the
resulting harm the deciding factor?" Over Appellant's objection, the court
instructed the jury:

To convict the Defendant of assault and battery of a high
and aggravated nature, the State must prove beyond a
reasonable doubt that the Defendant intended to
unlawfully injure another person, and either great bodily
injury to that person resulted or the act was accomplished
by means likely to produce death or great bodily injury.

Instructions on intent and the lesser-included offenses followed. Approximately
ten minutes later, the jury found Appellant guilty of ABHAN. Appellant moved
for a new trial, which the circuit court denied. The court sentenced him to ten
year’s imprisonment.

Law and Analysis

I. Directed Verdict

Appellant first asserts the circuit court erred in declining to direct a verdict because
the State failed to present evidence that he caused the injury to the back of Victim's
head or that his single punch was likely to produce death or great bodily injury.
We disagree.

"In reviewing a motion for directed verdict, the trial court is concerned with the
existence of evidence, not with its weight." State v. Phillips, 416 S.C. 184, 192,
785 S.E.2d 448, 452 (2016). "When the evidence presented merely raises a
suspicion of the accused's guilt, the trial court should not refuse to grant the
directed verdict motion." Id. "'Suspicion' implies a belief or opinion as to guilt
based upon facts or circumstances which do not amount to proof." State v. Lollis,
343 S.C. 580, 584, 541 S.E.2d 254, 256 (2001). "If there is any direct evidence or
any substantial circumstantial evidence reasonably tending to prove the guilt of the
accused, an appellate court must find the case was properly submitted to the jury."
Id.

"[T]he lens through which a court considers circumstantial evidence when ruling
on a directed verdict motion is distinct from the analysis performed by the jury."
State v. Bennett, 415 S.C. 232, 236, 781 S.E.2d 352, 354 (2016). "The jury's focus
is on determining whether every circumstance relied on by the State is proven
beyond a reasonable doubt, and that all of the circumstances be consistent with
each other and, taken together, point conclusively to the guilt of the accused to the
exclusion of every other reasonable hypothesis." Phillips, 416 S.C. at 193, 785
S.E.2d at 452. "The trial court must view the evidence in the light most favorable
to the State when ruling on a motion for directed verdict, and must submit the case
to the jury if there is" any substantial evidence which reasonably tends to prove the
guilt of the accused, or from which his guilt may be fairly and logically deduced."
Id. (quoting State v. Littlejohn, 228 S.C. 324, 329, 89 S.E.2d 924, 926 (1955)).
While "the jury must consider alternative hypotheses, the court must concern itself
solely with the existence or non-existence of evidence from which a jury could
reasonably infer guilt." Bennett, 415 S.C. at 237, 781 S.E.2d at 354.

With respect to Appellant's ABHAN charge, the statute provides:

(B)(l) A person commits the offense of assault and
battery of a high and aggravated nature if the person
unlawfully injures another person, and:

(a) great bodily injury to another person results; or

(b) the act is accomplished by means likely to produce
death or great bodily injury.

S.C. Code Ann. § 16-3-600(B) (2015). The statute 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." S.C. Code Ann. § 16-3-600(A)(l) (2015).
As the circuit court noted, there is no direct evidence in the record supporting the
State's theory that Appellant struck Victim in the back of the head. Even the
State's expert witness, Dr. Cheatle, conceded Victim's injuries could have resulted
from Victim's head striking the floor after he fell. In fact, while the video
surveillance and still photographs do not show Appellant striking Victim, they do
show Victim falling backward and landing with his feet pointed toward the ceiling.
The video surveillance and still photographs also show two bouncers dragging
Victim away from the dance floor towards the exit.

Our review of the record confirms substantial circumstantial evidence exists to
support Appellant's guilt in that his single punch caused Victim's injuries, likely by
way of a punch to Victim's face that caused Victim to fall and strike his head on
the floor. The State presented abundant evidence, including Appellant's own
statement to police, 2 requiring the circuit court to deny his directed verdict motion.
Heavener testified Victim "went down" right after Appellant "hit [Victim] on the
face on the left side because [Appellant] was standing on that side of [Victim]."
Sumpter testified Appellant "hit [Victim] right in the face. I'm not sure if it was
the nose or where, but [Appellant] hit [Victim] in the face." Sumpter continued,
"Yeah, he went straight back. . . . like a sack of potatoes. He just went straight
backwards. Like, you know, he had like nothing there, he's just out on his feet."
Thus, considering the evidence in the light most favorable to the State, substantial
circumstantial evidence exists that tended to show Appellant punched Victim and
this punch resulted in great bodily injury and ultimately Victim's death. See State
v. Rogers, 405 S.C. 554, 567, 748 S.E.2d 265, 272 (Ct. App. 2013) (stating
"[c]ircumstantial evidence . . . gains its strength from its combination with other
evidence, and all the circumstantial evidence presented in a case must be
considered together to determine whether it is sufficient to submit to the jury.").

For purposes of the circuit court's analysis at the directed verdict stage, it does not
matter which story the jury would later choose to believe. The State's theory—
supported by the photograph of Victim's face and Dr. Cheatle's testimony as to the
hematoma on the back of Victim's head—was that Victim sustained a [contrecoup]

2
Despite Appellant's contention that he did "not use deadly force" and "all of the
evidence indicated Appellant struck [Victim] once," that single blow ultimately
caused Victim's death. Notwithstanding his argument that there "was no indication
that Appellant used a weapon or excessively beat [Victim]," Appellant, by his own
words, "kick boxed for thirteen years" and "really didn't even hit him with
everything."
injury as the result of a single blow which caused him to fall backward. The jury
may have instead chosen to believe the version presented by the defense
witnesses—that Appellant punched Victim in the face with such force that he fell
backward and sustained a contrecoup injury when his head struck the floor. In
either scenario, the blow proximately caused Victim's injuries, which eventually
resulted in his death. See State v. Des Champs, 126 S.C. 416, 120 S.E. 491, 493
(1923) ("The proximate cause of an injury is that cause which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred."). Accordingly, the
circuit court properly denied Appellant's motion for a directed verdict.

II. Self-Defense

Appellant next argues the circuit court erred in instructing the jury that in order for
self-defense to apply, Appellant must have been in fear of great bodily injury or
death when he struck Victim. We find no abuse of discretion here, as the circuit
court charged the current and correct law of self-defense in South Carolina. See
State v. Mattison, 388 S.C. 469, 479, 697 S.E.2d 578, 583 (2010) ("The trial court
is required to charge only the current and correct law of South Carolina.").

"In reviewing jury charges for error, we must consider the court's jury charge as a
whole in light of the evidence and issues presented at trial." Id. at 478, 697 S.E.2d
at 583. "A jury charge is correct if, when the charge is read as a whole, it contains
the correct definition and adequately covers the law." Id.

During the charge conference, Appellant objected to the portions of the
self-defense instruction requiring that the evidence show he was in imminent
danger of death or serious bodily injury (or reasonably believed he was) to invoke
the protection of self-defense. He argued that "from the Defense point of view,"
this incident involved "a punch for a punch."

The State agreed "the law could not be that a person must be in fear of losing his
life in every situation," but relied upon the portion of the charge regarding fear of
serious bodily injury as sufficient to cover situations in which a deadly threat is not
posed. According to the State, in order to exercise one's right to self-defense, one
"must be in fear of death or serious bodily injury"—anything less would preclude
an instruction on self-defense in a case such as this.
Noting these arguments, the circuit court instructed the jury on the elements of
ABHAN, including the lesser-included offenses, and charged as follows regarding
the elements of self-defense:

First, the Defendant must be without fault in bringing on
the difficulty. If the Defendant's conduct was the type
which was reasonably calculated to and did provoke an
assault resulting in death or great bodily injury, the
Defendant would be at fault for bringing on the difficulty
and would not be entitled to an acquittal based on
self-defense. The second element of self-defense is that
the Defendant was actually in imminent danger of death
or serious bodily injury or that the Defendant actually
believed he was in imminent danger of death or serious
bodily injury. If the Defendant was actually in imminent
danger, self-defense requires that the circumstances
warranted a person of ordinary firmness and courage to
strike the fatal blow to prevent death or serious bodily
injury. If the Defendant believed he was in imminent
danger of death or serious bodily injury, self-defense
requires that a reasonably prudent person of ordinary
firmness and courage would have had the same belief. In
deciding whether the Defendant actually was or believed
he was in imminent danger of death or serious bodily
injury, you should consider all the facts and
circumstances surrounding the crime including the
physical condition and characteristics of the Defendant
and the victim. The Defendant does not have to show
that he was actually in danger. If the Defendant believed
he was in imminent danger and a reasonably prudent
person with ordinary firmness and courage would've had
the same belief, then the Defendant has the right to act on
appearances, even though the Defendant's beliefs may
have been mistaken. You must decide whether the
Defendant's fear of immediate danger of death or serious
bodily injury was reasonable and would have been felt by
an ordinary person in the same situation. Words
accompanied by hostile acts may, depending on the
circumstances, establish self-defense. However, mere
words, no matter how abusive, insulting, vexatious or
threatening they may be, will not justify an assault and
battery unless accompanied by an actual offer of physical
violence. The relative sizes, ages and weights of the
Defendant and the victim may be considered in the [sic]
deciding the apparent or actual need for force in
self-defense and the amount of force needed.

The final element of self-defense is that the Defendant
had no other probable way to avoid the danger of death
or serious bodily injury and to act as the Defendant did in
this particular instance. A person cannot be required to
make an exact calculation as to the degree or amount of
force which may be needed to avoid death or serious
bodily harm. Therefore, in self-defense, the Defendant
has the right to use the force needed to avoid death or
serious bodily harm. The force used in self-defense does
not have to be limited to the degree or amount of force
used by the victim. The Defendant has the right to use so
much force as appeared to be necessary for complete
self-protection and which a person of ordinary reason and
firmness would've believed to be needed to prevent death
or serious bodily harm.

To establish self-defense in South Carolina, the following four elements must be
present:

(1) the defendant must be without fault in bringing on the
difficulty;

(2) the defendant must have been in actual imminent
danger of losing his life or sustaining serious bodily
injury, or he must have actually believed he was in
imminent danger of losing his life or sustaining serious
bodily injury;

(3) if his defense is based upon his belief of imminent
danger, defendant must show that a reasonably prudent
person of ordinary firmness and courage would have
entertained the belief that he was actually in imminent
danger and that the circumstances were such as would
warrant a person of ordinary prudence, firmness, and
courage to strike the fatal blow in order to save himself
from serious bodily harm or the loss of his life; and

(4) the defendant had no other probable means of
avoiding the danger.

State v. Slater, 373 S.C. 66, 69–70, 644 S.E.2d 50, 52 (2007). "If there is no
evidence to support the existence of any one element, the trial court must not
charge self-defense to the jury." State v. Williams, 427 S.C. 246, 249, 830 S.E.2d
904, 905–06 (2019).
Although Appellant agreed with "99 percent of the self-defense charge," he
objected to the use of the phrase "serious bodily injury." Appellant could not
"imagine that our courts think that it is the law that a person that is assaulted with
something less than deadly force, a fist, does not have a right to defend
himself. . . . I do not think that can possibly be the law in self-defense in this
state." While this is certainly a question our appellate courts may need to address,
and a concern other states have tackled under appropriate circumstances, such
circumstances do not exist here. 3

Initially, we question whether Appellant was entitled to a self-defense instruction
in light of the evidence presented at trial. First, it does not appear that Appellant
was "without fault in bringing on the difficulty." According to his own statement
to police as well as the testimony of his two witnesses, Appellant walked from the
safety of the bar area to the dance floor and inserted himself into a verbal
altercation between Jimer and Victim, putting his hands on the two men to separate
them. When he approached the two, Appellant was in no danger, nor could he
have believed he was "in imminent danger of losing his life or sustaining serious
bodily injury." Perhaps most significantly, Appellant had "other probable means

3
See e.g., Byrd v. Isgitt, 338 So.2d 374, 375 (La. Ct. App. 1976) ("The general rule
is that where a person reasonably believes he is threatened with bodily harm he
may use whatever force appears to be reasonably necessary to protect himself.");
Anders v. Clover, 165 N.W. 640, 641 (Mich. 1917) ("There can be no doubt that
one assaulted may justly exercise such reasonable force as may be, or as appears to
him at the time to be, necessary to protect himself from bodily harm in repelling
said assault.").
of avoiding the danger," in that he could have simply walked away from the
situation on the dance floor.

Regardless, the circuit court provided a specialized and appropriate jury instruction
in light of the evidence presented at trial. See Mattison, 388 S.C. at 479, 697
S.E.2d at 583 ("The law to be charged must be determined from the evidence
presented at trial." (quoting State v. Knoten, 347 S.C. 296, 302, 555 S.E.2d 391,
394 (2001))); State v. Fuller, 297 S.C. 440, 443, 377 S.E.2d 328, 330 (1989) ("In
charging self-defense, we instruct the trial court to consider the facts and
circumstances of the case at bar in order to fashion an appropriate charge."). As
previously stated, the circuit court charged the jury on the elements of self-defense,
but then went further and added language instructing (1) Appellant was entitled to
act on appearances; and (2) Appellant was not required to wait for a person to be
actually attacked before acting.4 Because the circuit court instructed the jury on
the correct and current law of South Carolina based upon the evidence presented at
trial, we find no error.

III. Intent

Appellant argues the circuit court erred in responding to a question from the jury
by giving a supplemental instruction that to find Appellant guilty of ABHAN, all
the State had to prove regarding intent was that Appellant intended to injure
another person with no regard to whether Appellant intended the level of injury
that occurred. We disagree, as the circuit court's response provided correct
definitions and adequately addressed the law.

"The standard for review of an ambiguous jury instruction is whether there is a
reasonable likelihood that the jury applied the challenged instruction in a way that
violates the Constitution." State v. Aleksey, 343 S.C. 20, 27, 538 S.E.2d 248, 251
(2000). "In reviewing jury charges for error, this Court must consider the circuit
court's jury charge as a whole in light of the evidence and issues presented at trial."
State v. Simmons, 384 S.C. 145, 178, 682 S.E.2d 19, 36 (Ct. App. 2009). "To
warrant reversal, a [trial] court's refusal to give a requested jury charge must be
both erroneous and prejudicial to the defendant." Id.

4
At Appellant's request, the circuit court removed language instructing the jury
that Appellant had the right to act in defense of others.
In the indictment for ABHAN, the State alleged Appellant committed "an unlawful
act of injury to [Victim,] which resulted in great bodily injury or the act was
accomplished by means likely to produce death or great bodily injury to the victim
in violation of Section 16-3-600(B), S.C. Code of Laws, 1976, as amended." The
circuit court agreed the evidence presented at trial entitled Appellant to instructions
on the lesser-included offenses of assault and battery in the second and third
degrees and instructed the jury accordingly. 5

During deliberations, the jury asked, "[A]re we to consider intent as to which level
of assault this is or is the resulting harm the deciding factor? A copy of each of the
three levels of assault may also be helpful." While discussing the question with
counsel, the circuit court stated it planned to instruct the jury:

To convict the Defendant of assault and battery of a high
and aggravated nature, the State must prove beyond a
reasonable doubt that the Defendant intended to
unlawfully injure another person and either great bodily
injury to that person resulted or the act was accomplished
by means likely to produce death or great bodily injury.

The proposed instructions for the lesser-included offenses tracked this language.
Appellant objected "to adding the word intent to the Court's previous charge" and
requested a "charge on intent as a general proposition." According to Appellant,
by adding the word "intent" and "placing emphasis on that word, intent," the circuit
court would "suggest an answer to their question."

Over Appellant's objection, the circuit court gave the following supplemental jury
instruction:

Now, as to your question regarding intent. I think the
best way to answer that is to tell you that what you must

5
To establish assault and battery in the second degree, the State must prove a
defendant "unlawfully injure[d] another person" (or attempted to unlawfully injure
another person) and "moderate bodily injury to another result[ed] or moderate
bodily injury to another person could have resulted." S.C. Code Ann.
§ 16-3-600(D)(l) (2015). For assault and battery in the third degree, the State must
prove a defendant "unlawfully injure[d] another person, or offer[ed] or attempt[ed]
to injure another person with the present ability to do so." S.C. Code Ann.
§ 16-3-600(E)(l) (2015).
first consider is whether or not the State has proved
beyond a reasonable doubt that the Defendant committed
[ABHAN]. To convict the Defendant of [ABHAN], the
State must prove beyond a reasonable doubt that the
Defendant intended to unlawfully injure another person,
and either great bodily injury to that person resulted or
the act was accomplished by means likely to produce
death or great bodily injury. If you find that the State has
proved this beyond a reasonable doubt, then you find the
Defendant guilty of [ABHAN]. If you find that the State
has not proven this beyond a reasonable doubt you then
consider whether or not the State has proved beyond a
reasonable doubt that the Defendant committed assault
and battery in the second degree.

The circuit court's instruction on the lesser included offenses followed, and the
court gave the jury a written copy of the full jury charge. Approximately ten
minutes later, the jury reached a verdict, convicting Appellant of ABHAN.

In argument before this court, the State asserted there is zero doubt Appellant
intended an injury to Victim, noting, "When you punch someone, the intent that
you have is to cause an injury." Moreover, there is no question that Victim's
resulting injury qualified as great bodily injury given the fact that he had to have
part of his brain removed before he ultimately died. Appellant's deliberate blow to
Victim's head was evidence of intent to injure—the severity of the resulting harm
provided the jury evidence of the statutory degree. See e.g., 6A C.J.S. Assault § 86
(2018) (explaining battery is a general intent crime, "and thus the required mental
state entails only an intent to do the act that causes the harm"). The circuit court's
instructions accurately communicated the law applicable to the trial evidence.

Conclusion

For the foregoing reasons, Appellant's ABHAN conviction is

AFFIRMED.

WILLIAMS, C.J., and LOCKEMY, A.J., concur.