B. Assault and Battery

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

B. Assault and Battery

1. The Statutory and Common Law Crimes

In 2010, the Legislature passed the Omnibus Crime Reduction and Sentencing Reform Act. In addition to codifying the statutory crime of attempted murder, S.C. Code Ann. § 16-3-29 (Supp. 2012), the Omnibus Act also created the statutory crimes of assault and battery of a high and aggravated nature (ABHAN) and assault and battery in the first, second and third degrees. S.C. Code Ann. § 16-3-600 (Supp. 2012). The statute abolished all the common law crimes related to assaults and batteries and repealed code sections 163-612, 16-3-620, 16-3-630 and 16-3-635. The statute includes a number of definitions that help determine which crime has been committed. The following are the essential statutory elements of the new assault and battery crimes:

1. A person commits assault and battery of a high and aggravated nature if:

a. the battery resulted in "great bodily injury," which is defined 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," § 16-3-600(B)(1)(a); or
b. the actor committed an act that causes any injury and is "accomplished by means likely to produce death or great bodily injury" § 16-3-600(B)(1)(b).

Statutory ABHAN is a felony carrying a penalty of imprisonment for up to 20 years. There is no minimum sentence set forth in the statute and it is statutorily designated as a lesser-included crime of attempted murder. § 16-3-600(B)(3).

2. A person commits an assault and battery in the first degree if he does an act that "injures another person" and the injury occurs while in the act of:

a. a nonconsensual touching of another person's private parts (defined as "genital area of buttocks of a male or female or the breasts of a female") either under or above clothing and with lewd and lascivious intent;
b. commission of a robbery, burglary, kidnapping, or theft; or
c. offers or attempts to injure another with present ability to do so and the act is:

i. accomplished by means likely to produce death or great bodily injury; or
ii. occurred during the course of a robbery, burglary, kidnapping or theft.

The crime is a felony carrying imprisonment for up to 10 years and is a lesser-included crime to the statutory offenses of ABHAN and attempted murder. S.C. Code Ann. § 16-3-600(C)(2) & (c)(3). Apparently an attempted touching (an assault) on another's private parts is not a crime under this degree of the offense.

3. A person commits assault and battery in the second degree if he unlawfully injures another, "or attempts to injury another person with the present ability to do so, and:"

a. Moderate bodily injury results or could have resulted (defined as "physical injury requiring treatment to an organ system of the body other than the skin, muscles, and connective tissues of the body, except when there is penetration of the skin, muscles, and connective tissues that require surgical repair of a complex nature or when treatment of the injuries requires the use of a regional or general anesthesia"); or
b. the act involves nonconsensual touching of an adult's private parts, either under or above clothing.

The crime is a misdemeanor with a fine of up to two thousand five hundred dollars and/or imprisonment for not more than three years. It is a lesser-included offense of attempted murder and the two more serious assault and battery crimes listed above. S.C. Code Ann. § 16-3-600(D) (Supp. 2012). An attempt to touch another's private parts is covered by this offense. Apparently a person can be charged with either first or second degree assault and battery for an inappropriate touching, depending whether there is an assertion that the act was committed with a lewd and lascivious intent.

4. A person commits assault and battery in the third degree if the person "unlawfully injures another person, or offers or attempts to injure another person with present ability to do so."

The crime is a misdemeanor carrying a fine of up to five hundred dollars and/or imprisonment for not more than 30 days. As with all the assault and battery statutory offenses, this offense is a lesser-included offense of each of the more serious offenses and of attempted murder. S.C. Code Ann. § 16-3-600(E).

While the offenses are now statutory crimes, the case law that developed over time is still relevant to the prosecution of these offenses. That case law contributed to the statutory descriptions of the offenses. The inclusion of both a requirement of an "injury" and an improper touching of another's private parts may raise the issue of whether an improper touching, without more, is an adequate act to commit the offense. Earlier case law designated this type of assault as aggravated because the battery (touching) was "accompanied" by some aggravating factor - indecent liberties. See State v. Jones, 133 S.C. 167, 181, 130 S.E. 747, 751 (1925) (discussed infra at Assault and Battery of a High and Aggravated Nature). Whether the inclusion of the word "and" in the statutory version of the statute requires a different finding will be resolved by the courts.

The common law crimes that were abolished by the 2010 Omnibus Crime bill had a long history in our case law.

An 'assault' is an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another. A 'battery' is the successful accomplishment of such attempt. While there is no statutory definition of the offense of 'assault and battery' in this [S]tate, common usage for convenience has divided the offense into three degrees: (1) Assault and battery with intent to kill and murder; (2) assault and battery of a high and aggravated nature; (3) simple assault and battery.

State v. Jones, 133 S.C. 167, 179, 130 S.E. 747, 751 (1925).

The often cited Jones case also pointed out that simple assault and battery is a lesser-included offense of assault and battery of a high and aggravated nature (ABHAN) and that both are lesser-included offenses of assault and battery with intent to kill and murder (ABIK). That the Legislature codified the lesser-included offense provisions into the code is not surprising. Nonetheless, under long-standing case law, a jury need not be instructed on lesser assault and battery offenses in every case. Such instructions are unnecessary "unless there is testimony tending to show that the defendant is only guilty of [the lesser offense]." Id. at 173, 130 S.E. at 749, quoting from State v. Knox, 98 S.C. 114, 82 S.E. 278 (1914); State v. Mallory, 270 S.C. 519, 242 S.E.2d 693 (1978); State v. Foxworth, 269 S.C. 496, 238 S.E.2d 172 (1977); State v. Brown, 269 S.C. 491, 238 S.E.2d 174 (1977); State v. DeBerry, 250 S.C. 314, 157 S.E.2d 637 (1967); State v. Johnson, 187 S.C. 439, 198 S.E. 1 (1938).

In Jones, a typical example, there was uncontradicted evidence that the defendant wounded the victim with a shotgun blast. The defense was self-defense. In that situation it was clear that the defendant was either not guilty or was guilty of aggravated assault and battery. There was no evidence indicating only simple assault and battery. Foxworth added that the mere possibility that the jury might disbelieve the State's evidence of the factors in aggravation and then convict of simple assault and battery on the other evidence will not require instructions on the lesser offense. However, it must be noted that in Foxworth the evidence in aggravation, that the defendant pointed a gun in the ribs of the victim, was uncontradicted.

Even though it may appear that the three classes of assault and battery are all lesser included offenses of criminal homicide because all the elements of assault and battery would appear included within the homicide offenses, the Court has explicitly held they are not when there is no dispute that the victim died as a result of the battery. State v. Fields, 314 S.C. 144, 442 S.E.2d 181 (1994). Actually, this case considered only simple assault and battery and assault and battery of a high and aggravated nature. It is quite difficult to conceive of a criminal homicide which does not include some type of assault and battery. Indeed, the Court in Jones observed that assault and battery with intent to kill and murder "contains all of the elements of murder except the actual death of the party assaulted." Jones, at 172, 130 S.E. at 751. Nonetheless, applying the test of Knox, assault and battery instructions would appear unnecessary in a homicide case because it is difficult to imagine a homicide case in which the evidence indicates that the defendant is guilty of only the lesser offense. Although the Court in Fields did not detail its rationale, presumably this is what the court had in mind.

One possible exception to the Fields rule would be where the actual death was caused by an intervening agency so unforeseeable that it broke the causal chain between the defendant's act and the death of the victim. Cases suggesting this possibility are discussed in the subsection A.1.d. Causation, supra.

Common law assault and battery of a high and aggravated nature was a lesser-included offense of criminal sexual assault in the first degree. State v. Mathis, 287 S.C. 589, 340 S.E.2d 538 (1986); State v. Drafts, 288 S.C. 30, 340 S.E.2d 784 (1986); and State v. Lambright, 279 S.C. 535, 309 S.E.2d 7 (1983). Consequently, in a prosecution for the greater offense, the jury must be instructed on the lesser one if there is evidence that the defendant is guilty of only the latter. Id. The same should be true when the statutory assault and battery crimes are charged.

Common law assault and battery of a high and aggravated nature was not a lesser-included offense of kidnapping. Phillips v. State, 281 S.C. 41, 314 S.E.2d 313 (1984). Consequently, indictment for the latter will not support conviction of the former absent a written wavier of the indictment. Id.

Common law assault...