THE STATE OF SOUTH C AROLINA
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.

Attorn ey 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 direct e d verdict and in instructing the jury on self

- defense and
intent

. We affirm

.

Facts and Procedural HistoryOn 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, a rrested

, 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 describ ed 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

wa s playing with Stevens's breasts when Victim grabbed his arm and said " t hat's my girlfriend. " Jimer responded, " w ell 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 ." H owever, 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 pers on who struck Victim.

Stevens's account differed

— Stevens claimed she 

### " went to give [Jimer] a hug and
he touched my breast ." "S o I told him not to touch me and I went and said something to [Victim] , and he went and talked to [Jimer]

. " A fter 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 leav ing

, Stevens went to the restroom and Victim st ood against a wall toward the entrance talking to someone 1 while he waited for her , but when Stevens returned

, "he was gone." Stevens did not see what happened

, but she was " ce rtain 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
bo uncers 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, t he y 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 i dentity ; they gave law enforcement two phones, two sets of keys, and a wallet, in which officers found an identification card. O fficers then went to Broadway at the Be ach, where Carlo s 'n Charlie's i s 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 victi m and two other individuals. T hey then
searched Facebook for Victim's name

, seeking a photograph or other information that might assist the investigation

. O fficers also went Carlos 'n Charlie' s to gather
video surveillance

.

Dr. Joseph Cheatle , the neurosurgeon who treated Victim at Grand Strand

, testified
Victim suff e red a subgaleal hematoma on the back of his head a s 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 bra kes real hard and
the seat belt holds you, the brain d oes 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 [ c oup] , which means at the direc t site, or a [contrecoup] injury. So, what happens is that you ha ve something that hits you, you can have the exact opposite so contra meaning opposite, [coup] means area of injury. You have the opposite ar ea 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 perfo rmed a decompr essive craniotomy to open a skull flap and relieve
the pressure on Victim’s brain. Howeve r, after several days, Victim's brain began
to swell . In an effort to save Victim's life, doctors performed a second surger y to

remo v e 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

, "[Vic tim] had an assault to the back of his head ." Dr. Cheatle admitted oncross

- examination that while he had no kno wledge 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 cou ld have come from human contact, such as a punch, an object

e mployed 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 S tate's case, Appellant moved for a d irected verdict on the basis
that the State failed to prove causation as to Victim ' s injury, specifically the
mechanism of the blow to t he 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

poss ible 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

- punch ed Victim in the back of the
head

. When the circuit court asked whether the State was "shifting gears" and arguing Appellant could have pu n ched 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

c o uld determine Victim received a frontal blow and the fatal injury result ed from
his head striking the floor. The State emphasized it was undisputed Appellant punched Victim and great bodily injury resulted fro m the blow to the back of
Victim's head.

The circuit court d enied 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 a nd, even though the State

— I don't know
that there's evide nce that proves their theory or where a reasonable juror ca n 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 [Appel lant] , that cre ated great bodily injury to the victim and coupled with

— what was it the doctor

— well, t hat's substantiated by Dr. C heatle's testimony of the great bodily injury, and [Jimer]'s testimony that no,
there was no hassle, we shook hands , we were ok ay, 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
h asn'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 th ink 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 junctur e.

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 goi ng 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 th is alterca t ion 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 o n 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 c ommotion 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 ." Thelarger man then threw a punch at Appellant , who responded by hit ting " 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 conc lu sion of the defense 's case, Appellant renewed his motion for a
directed verdict, which the circuit court again denied

. The court subsequent ly
instructed the jury on AB HAN, 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?" Ov e r Appellant 's objection, the court instructed the jury:

To convict the D efendant of assault and battery of a high and aggravated nature, the State must prove beyond a
reasonable doubt that the D efendant intended to unlawfully injure another person, and either great bodi ly injury to that person resulted or the act was accomp lished by means likely to produce d eath or great bodily injury.

I nstructions on intent and the l esser

- 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 S tate 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 asuspicion of the accused's guilt, the trial court should not refuse to grant the
directed verdict motion. " Id. " 'S uspicion ' implies a belief or opinion as to gui lt 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. "
St ate 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 eve ry 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 rul ing 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, 32 9 , 89 S.E.2d 924, 926 (1955) )

. W hile " 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 offe nse 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 accompli shed 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 substa ntial 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 support ing 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 t he video
surveillance and still photographs do not show Appellant striking Victim

, they do
show Victim f

alling backward and landing with his feet pointed toward the ceiling

. T he video surveillance and still photographs also show two bouncers dragging
Vict im 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 af ter 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 favo rable to the State, substantial
circumstantial eviden ce 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, 5 67 , 748 S.E.2d 265, 27 2 (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 cho o se to believe . T he State's theor y— supported by t he photograph of Victim 's face a nd Dr. Cheatle 's test imony as to the
hem atoma on the back of Victim' s head

— was that Victim sustained a [ contr ec oup]

2 Despite Appellant 's contention that he did "not use deadly force" and "all of the evidence indicated Appellant struck [Victim] once ," that s i ngle 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

ma y ha v e instead chose n 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 contr ecoup 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 r esult would not have occurr ed. " ). Accordingly , the
circuit court properly denied Appellant's motion for a directed verdict

.

II. Self

- Defense

Appellant next a rgues 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, 47 9 , 697 S.E.2d 578, 583 (20 10) ("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 a nd adequately covers the law." Id.

During the charge conference, Appellant objected to the portions of the
self

- defense inst ruction requiring that the evidence show he was in immi nent danger of death or serious bodily injury (or reasonably believed he was) to invoke the protection of self

- defense. He argued that "from the D efense point of view,"
this i ncident involved "a punch for a punch."

The S tate 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 i s not posed. According to the S tate, in order to exercise one's right to self

- defense , one "must be in fear of death or serious bodily injury" —a nything less would preclude
an instruction on s elf

- defense in a case such as this

.Noting these argument s , the circuit court instructed the jury on the elements of

ABHAN , includin g the lesser

- included offenses, and charged as follows regarding
the elements of self

- defense:

First, the D efendant must be without fault in bringing on the difficulty. If the D efendant's conduct was the type
which was reasonably calculated to and did provoke an assault resulting in death or great bodily injury, the

D efendant would be at fault for bringing on the difficulty

an d would not be entitled to an acquittal based on self

- defense. The second element of self

- defense is that
the D efendant was actually in imminent danger of death or serious bodily injury or that the Defe ndant actually believed he was in imminent danger of death or serious bodily injury

. If the D efendant was actually i n imminent danger, self

- defense requires that the circumstances warranted a person o f ordinary firmness and courage to strike the fatal blow to prevent death or serious bodily injury

. If the D efendant believed he was in imminent danger of death or serious bodily injury , self

- defense requires that a reasonably prudent person o f ordinary firmness and courage would have had the same belief. In deciding whether the D efendant actuall y was or belie ved
he was in imminent danger of death or serious bodily injury , you should consider all the facts and
circumstances surrounding t he crime including the physical condition and characteristics of the D efendant
and the victim. The D efendant doe s not have to show that he was actually in danger. If t he D efendant believed
he was in imminent danger and a reasonably prudent

pe rson with ordinary firmness and courage would've had the same belief, then the De fendant has the right to act on appearances, even though the D efendant's beliefs may
have been mistaken. You must decide whether the

D efendant's fear of immediate danger of death or serious bodily injury was reasonable and would have been fe lt by an ordinary person in the same situation. Words accompanied by hos tile acts may, depending on the circumstances, establish self

- defense. How ever, mere words, no matter how abusive, insulting, vexatious orthreatening they may be, will not justify an assault and battery unless accompanied by an actual offer of physica l
violence. The relative sizes, ages and weights of the

D efendant and t he 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 D efendant had no other probable way to avoid the danger of death
or serious bodily injury and to act as the De fendant did in this particular instance. A perso n cannot be required to
make an exact calculation as to the degree or amount of force which may be nee ded to avoid death or serious bodily harm. Therefore, in self

- defense, the D efenda nt 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 fo rce used by the victim. The D efendant 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

.

T o 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 seriou s 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

perso n of ordinary firmness and courage would have entertained the belief that he was actually in imminent danger and that the circumstances were such as wouldwarrant a person of ordinary prudence, firmness, and courage to strike the fatal blow in order to sav e 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 questio n 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 o wn 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 s eparate 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 ) ( "T here 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 simp ly walked away from the
situation on the dance floor

.

Regardless , the circuit court provide d a specialized and appropriate jury instruction in light of the evidence presented at trial

. See Mattison , 388 S.C. at 47 9 , 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. 44 0 , 44 3 , 377 S.E.2d 328, 33 0 (1989) (" In charging self

- defense, we instruc t 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 jur y on the elements of self

- defense, but then went further and added language i nstructing ( 1 ) Appellant was entitled to
act on appearances; and ( 2 ) Appellant was no t required to wait for a person to be

ac tually attacked before acting. 4 B ecause 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 ju ry by giving a supplemental instruction that to find Appellant guilty of AB HAN, 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 i s whether there is a
reasonable likelihood that the jury applied the challenged instruction in a way t hat
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 ch arge 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 e rroneous and prejudicial to the defendant." Id.

4 At Appellant's request, the circuit cour t removed language instructing the jury
that Appellant had the right to act in defense of others.In the indictment for ABHAN , the S tate alleged Appellant committe d "an unlawful

act of injury to [Victim,] which resulted in gre at bodily injury or the act was accomplished by means likely to produce death or g reat bodily injury to the victim
in violati on of Section 16

- 3

- 600( B ), S.C. C ode 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 an d battery in the second and third degrees and instructed the jury accordingly

. 5

During deliberations, the jury asked, "[A]re we to co nsi der 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

, t he circuit court stated it planned to instru ct the j ury:

To convic t the D efendant of assault and battery of a high
and ag gravated nature, the State must prove beyond a
reasonable doubt that the D efendant intended to

u nlawfully injure another person and either great bodily injury to that person resu lted or the act w as accomplished by means likely to p roduc e 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 C ourt'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 cir cuit 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 a ssault 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, t he State must

prove a defendant "unlawfully injure[d] another person, or offer[ed] or attempt[ed] to injur e 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 D efendant of [ABHAN], the State must prove beyond a reasonable doubt that the

D efendant intended to unlawfully injure anot her person, and either great bodily injury to that person resulted or the act was accomplished by m eans likely to produce
death or gr eat bodily injury. If you find that the State has proved this beyond a reasonable doubt, then you find the Defendant guilt y 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.

T he 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 r eached a verdict , convicting Appellant of ABHAN

.

In argument before this court , t he State a sserted 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 inten t to inj ure

— 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 in tent 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 applic able to the trial ev idence

.

Conclusion

For the foregoing reasons, Appellant's ABHAN conviction is

AFFIRMED.

WILLIAMS
, C.J
., and LOCKEM Y, A.J

. , concur.