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.