State v. Samir K. Shank

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Samir Kevin Shank, Appellant.

Appellate Case No. 2022-000650

Appeal From Greenville County
R. Scott Sprouse, Circuit Court Judge

Unpublished Opinion No. 2025-UP-114
Submitted March 1, 2025 – Filed April 2, 2025

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Appellate Defender Jessica M. Saxon, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Ambree Michele Muller, both of
Columbia; and Solicitor William Walter Wilkins, III, of
Greenville, all for Respondent.

PER CURIAM: Samir Kevin Shank was convicted of assault and battery of a
high and aggravated nature (ABHAN), failure to stop for a blue light, and use of
vehicle without permission. Shank appeals his conviction for ABHAN and
sentence of eighteen years' imprisonment. 1 On appeal, Shank argues the trial court
erred by refusing to charge the jury on the lesser-included offense of third-degree
assault and battery. We reverse Shank's conviction for ABHAN and remand
pursuant to Rule 220(b), SCACR.

We hold the trial court erred in refusing to charge the lesser-included offense of
third-degree assault and battery because the evidence presented at trial supported
the charge. See State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001) ("In
criminal cases, the appellate court sits to review errors of law only."); State v.
Williams, 427 S.C. 148, 156, 829 S.E.2d 702, 706 (2019) ("In reviewing jury
charges for error, we examine the trial court's charge as a whole in light of the
evidence and issues presented at trial."); State v. Rogers, 275 S.C. 485, 486, 272
S.E.2d 792, 792 (1980) ("The law to be charged must be determined from the
evidence presented."); State v. Mathis, 287 S.C. 589, 594, 340 S.E.2d 538, 541
(1986) ("A trial [court] is required to charge the jury on a lesser included offense if
there is evidence from which it could be inferred that a defendant committed the
lesser, rather than the greater offense."); Williams, 427 S.C. at 156, 829 S.E.2d at
706 ("In determining whether the evidence requires a charge on a lesser-included
offense, we view the facts in the light most favorable to the defendant."); State v.
Weaver, 265 S.C. 130, 137, 217 S.E.2d 31, 34 (1975) ("No instruction should be
given by the trial [court], at the request of the appellant, which tenders an issue
which is not presented or supported by the evidence."); S.C. Code Ann.
§ 16-3-600(E)(1) (2015) (stating a person commits third-degree assault and battery
"if the person unlawfully injures another person, or offers or attempts to injure
another person with the present ability to do so"); S.C. Code Ann.
§ 16-3-600(B)(1) (2015) ("A person commits the offense of [ABHAN] 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(A)(1) (2015) ("'Great bodily
injury' means 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."). Further, the refusal to charge the
lesser-included offense contributed to the verdict and, therefore, was not harmless.
See State v. Middleton, 407 S.C. 312, 317, 755 S.E.2d 432, 435 (2014) ("When
considering whether an error with respect to a jury instruction was harmless, we

1
On appeal, Shank did not challenge his convictions of failure to stop for a blue
light and use of vehicle without permission. Thus, we affirm his convictions for
failure to stop for a blue light and use of a vehicle without permission.
must 'determine beyond a reasonable doubt that the error complained of did not
contribute to the verdict.'" (quoting State v. Kerr, 330 S.C. 132, 144-45, 498 S.E.2d
212, 218 (Ct. App. 1998))); id. ("In making a harmless error analysis, our inquiry
is not what the verdict would have been had the jury been given the correct charge,
but whether the erroneous charge contributed to the verdict rendered." (quoting
Kerr, 330 S.C. at 145, 498 S.E.2d at 218)).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 2

WILLIAMS, C.J., and GEATHERS and TURNER, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.