Criminal domestic violence of a high and aggravated nature (CDVHAN) is “(1) an assault and battery which involves the use of a deadly weapon or results in serious bodily injury to the victim; or (2) an assault, with or without an accompanying battery, which would reasonably cause a person to fear imminent serious bodily injury or death.” S.C. Code Section 16-25-65(A) (emphasis added). “Serious bodily injury,” accordingly, is an element of CDVHAN. The criminal domestic violence portion of the code, however, does not define “serious bodily injury.” Our Court of Appeals recently declined to determine the meaning of “serious bodily injury” for CDVHAN. State v. Golston, 399 S.C. 393, 400, 732 S.E.2d 175, 179 (Ct. App. 2012).
Because Section 16-25-65(A) does not define “serious bodily injury,” it is appropriate to look to other sections of the SC Code of Laws for an appropriate definition. “Serious Bodily Injury” is defined in only one other place in our Code of Laws. Section 23-31-400 (Using a Firearm While Under the Influence of Alcohol or a Controlled Substance) provides, “’Serious bodily injury’ means a physical condition which creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of a bodily member or organ.”
A review of the Code of Laws reveals the General Assembly uses the terms “serious bodily injury” and “great bodily injury” interchangeably. The Code of Laws consistently provides, “’[G]reat bodily injury’ means bodily injury which creates a substantial risk of death or which causes serious or permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” The most relevant example is Section 16-3-600 defining “great bodily injury,” which is an element of assault and battery of a high and aggravated nature. Other examples include:
- Section 16-3-95(c) for infliction or allowing infliction of great bodily injury upon a child.
- Sections 16-3-1050 and 43-35-85 for abuse, neglect or exploitation of a vulnerable adult.
- Section 16-11-430(2) setting forth definitions for protections of persons and property.
- Section 16-11-523(D)(1) for injury to real property for purpose of obtaining nonferrous metals.
- Section 56-5-2945(B) for felony driving under the influence resulting in great bodily injury.
- Section 50-21-113 (A) and (B) for operation of moving water device while under the influence of alcohol or drugs resulting in great bodily injury or death.
- Section 56-5-750 for failure to stop motor vehicle when signaled by law-enforcement vehicle.
- Section 56-5-1210 for duties of drivers involved in accident resulting in death or personal injury.
- Section 56-5-2780 for unlawfully passing a stopped school bus.
The right to self-defense provides further guidance. The South Carolina Supreme Court uses the terms “serious bodily injury” and “great bodily injury” interchangeably. The jury instruction mandated by the Supreme Court defines the right in relation to loss of life or “sustaining serious bodily injury.” State v. Davis,282 S.C. 45, 46, 317 S.E.2d 452, 453 (1984). Historically, the Supreme Court recognized the right of self-defense to prevent “death or great bodily injury.” State v. Bodie, 33 S.C. 117, ___, 11 S.E. 624, 630 (1890). In fact, when codifying the “Castle Doctrine” and recognizing it is “proper for law-abiding citizens to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others,” the General Assembly used the term “great bodily injury.” Sections 16-11-420 and 430.
The trial judge properly instructing jurors the definition of “serious bodily injury” is necessary for a person to receive a fair trial. “[T]he trial judge is required to charge only the current and correct law of South Carolina.” State v. Burkhart, 350 S.C. 252, 261, 565 S.E.2d 298, 302 (2002). Failure to provide a clear and correct definition of this term could confuse the jurors about the distinction between CDVHAN and the lesser included offense of criminal domestic violence which requires “physical harm or injury” or “offer or attempt to cause physical harm or injury,” S.C. Code Section 16-25-20(A). Additionally, an inconsistency between the definitions used by the Court and defense counsel and the trial judge would improperly “diminish [the defendant’s] attorney’s credibility in the eyes of the jury.” State v. Jones, 343 S.C. 562, 578, 541 S.E.2d 813, 821 (2001) (improper for solicitor and trial judge to alter the instruction on reasonable doubt after defense counsel relied on court charging a particular definition).