State v. Shank: No Lesser-Included Third-Degree Assault Charge When Vehicle Use Satisfies ABHAN “Means Likely” Prong and Only General Intent (Recklessness) Is Required

I. Introduction

State v. Samir Kevin Shank (S.C. Sup. Ct., May 6, 2026) arises from a felony traffic stop involving a stolen vehicle. While attempting to evade Officer Ander Elder, Samir Kevin Shank reversed the vehicle on a narrow street with an open passenger-side door. The open passenger door collided with the officer’s open patrol-car door, knocking the officer to the ground and causing a scraped knee.

Shank was indicted for, among other offenses, Assault and Battery of a High and Aggravated Nature (ABHAN) under S.C. Code Ann. § 16-3-600(B)(1). At trial, Shank requested a lesser-included-offense instruction on Third-Degree Assault and Battery under § 16-3-600(E)(1), arguing (1) lack of intent to injure and (2) minor injury. The trial court refused. The jury convicted as indicted.

The court of appeals reversed, holding the refusal to charge the lesser-included offense was reversible error. On certiorari, the South Carolina Supreme Court reversed the court of appeals and reinstated the ABHAN conviction, holding the record did not support a rational inference that Shank was guilty only of the lesser offense.

II. Summary of the Opinion

The Supreme Court held that a trial court must give a lesser-included-offense instruction only when evidence permits a rational inference that the defendant committed the lesser offense rather than the greater offense. Viewing the facts in the light most favorable to Shank, the Court concluded the evidence still established ABHAN under the statute’s “means likely to produce death or great bodily injury” prong, because Shank reversed a vehicle toward a nearby officer while fleeing and knocked him down through forceful door-to-door impact.

The Court further held that (1) ABHAN is a general-intent crime, commonly satisfied by recklessness; (2) the State was not required to prove Shank intended to strike the officer; and (3) minor injury does not defeat ABHAN when the “means likely” prong is met. Accordingly, no evidentiary basis supported the requested Third-Degree Assault and Battery charge, and the refusal to charge it was proper. The court of appeals’ decision was reversed.

III. Analysis

A. Precedents Cited

  • State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001): Cited for the appellate standard in criminal cases—reviewing errors of law and deferring to trial-court factual findings unless clearly erroneous. In Shank, this frames the Supreme Court’s posture: the issue is legal (entitlement to a jury charge) assessed against an evidentiary record.
  • State v. Pittman, 373 S.C. 527, 647 S.E.2d 144 (2007): Supplies two key rules: (1) refusal of a legally correct, applicable charge is an error of law; and (2) abuse-of-discretion review applies to the charge decision. The Court uses Pittman to emphasize that even though jury-charge decisions are discretionary, they become legal error when the governing lesser-included standard is misapplied.
  • State v. Williams, 427 S.C. 148, 829 S.E.2d 702 (2019): Reinforces that jury charges are reviewed “as a whole” in light of the evidence and issues at trial. Here, the Court evaluates whether the entire evidentiary picture supported any reasonable route to convict on only the lesser offense.
  • State v. Sams, 410 S.C. 303, 764 S.E.2d 511 (2014): Central to the lesser-included inquiry. The Court quotes Sams for: (1) the requirement to charge a lesser-included offense when evidence supports an inference of guilt of only the lesser; (2) the “light most favorable to the defendant” lens; and (3) the converse rule—if no evidence tends to show guilt of the lesser offense, the charge is properly rejected. Shank is an application decision: even under defendant-favorable viewing, the “means likely” element remains satisfied.
  • State v. Geiger, 370 S.C. 600, 635 S.E.2d 669 (Ct. App. 2006): Quoted for the formulation that the evidence must allow a “rational inference” the defendant was guilty only of the lesser. This case provides the decision’s operative test; Shank turns on the “only” concept.
  • State v. Burkhart, 350 S.C. 252, 565 S.E.2d 298 (2002): Cited for harmless-error logic: even if a trial court’s reasoning is flawed, the refusal to charge is not reversible if the result (no entitlement to the charge) is correct. This insulates the judgment from attack based on the trial court’s focus on the State’s “means” theory rather than articulating the decision purely in evidentiary terms.
  • United States v. Clemons, 442 S.C. 670, 901 S.E.2d 280 (2024): Used for statutory-intent analysis: when a statute is silent on mens rea, courts consult common law and statutory development to determine whether criminal intent is required and at what level. In Shank, this supports framing ABHAN as not requiring a specific intent to cause serious injury.
  • State v. Smith, 430 S.C. 226, 845 S.E.2d 495 (2020): Cited (notably in a footnote) for the proposition that “ABHAN is a general-intent crime.” The Court uses this to reject the defendant’s argument that lack of intent to harm the officer entitled him to a lesser charge.
  • State v. Kinard, 373 S.C. 500, 646 S.E.2d 168 (Ct. App. 2007), overruled on other grounds by State v. Burdette, 427 S.C. 490, 832 S.E.2d 575 (2019): Kinard is cited for defining “general intent” as commonly taking the form of recklessness or negligence, which helps the Court articulate the minimum mental state consistent with ABHAN. The “overruled on other grounds” parenthetical matters: the portion relied upon (general-intent characterization) remains usable, while signaling the Court is not relying on any overruled holding.

B. Legal Reasoning

  1. Statutory structure: two routes to ABHAN. ABHAN under § 16-3-600(B)(1) requires an unlawful injury plus either: (a) great bodily injury results, or (b) the act is accomplished by means likely to produce death or great bodily injury. The Court emphasizes the prosecution proceeded on prong (b), so the seriousness of the actual injury is not dispositive.
  2. Lesser-included framework: the “guilty only of the lesser” requirement. Third-Degree Assault and Battery is expressly a lesser-included offense of ABHAN under § 16-3-600(E)(3). But entitlement to the instruction depends on evidence that would permit a rational jury to convict on the lesser while acquitting on the greater. Under Sams and Geiger, the question is not whether the defendant could be guilty of the lesser in the abstract, but whether the record supports guilt only of the lesser.
  3. Applying the “means likely” prong to the use of a vehicle while fleeing. Even accepting Shank’s pro-defense description (slow backing, straight path, constant braking, door-to-door collision), the Court treats as decisive: Shank knew the officer was present; the passenger door was open; and he reversed on a narrow street toward the officer while fleeing. The impact knocked the officer down with enough force to dislodge the officer’s gun and bend the patrol-car door frame. The Court holds that a vehicle used in this manner constitutes “means likely to produce death or great bodily injury.” The opinion stresses risk: the officer could have been crushed by the door or run over, and the fact those outcomes did not occur does not erase the inherent danger of the act.
  4. Mens rea: ABHAN’s general intent defeats “no intent” as a basis for the lesser charge. Relying on State v. Smith and the general-intent discussion in State v. Kinard, the Court treats ABHAN as requiring no specific intent to cause great bodily harm. The mental state can be satisfied at least by recklessness—consciously disregarding a substantial and unjustifiable risk. Thus, Shank’s asserted lack of intent to strike the officer does not create a lesser-included entitlement where the evidence still shows reckless, dangerous conduct using a vehicle while fleeing.
  5. Doctrinal cleanup: injury severity is not the element under prong (b). The defense’s emphasis on the officer’s scraped knee could matter under the “great bodily injury results” prong, but not under the “means likely” prong. Under prong (b), the statute requires only that the means used be capable of producing great bodily injury or death, not that such injury actually occurred.
  6. Harmless error backstop. Even if the trial court’s stated rationale focused too heavily on the State’s theory, State v. Burkhart permits affirmance if the refusal was correct on the record. The Supreme Court therefore concentrates on whether any evidence supported a rational inference of guilt only of Third Degree; it found none.

C. Impact

The decision’s practical rule is clear: where ABHAN is prosecuted under § 16-3-600(B)(1)(b), a defendant is not entitled to a lesser-included Third-Degree Assault and Battery instruction merely because (1) the victim’s injury is minor or (2) the defendant claims no intent to harm, if the evidence shows the act was accomplished by means likely to cause death or great bodily injury.

Likely effects include:

  • Vehicle-as-dangerous-means guidance. The Court signals that a car used to flee in close proximity to an officer can qualify as “means likely” even without direct bodily impact by the vehicle’s body (here, door-to-door contact causing a fall). The Court also cautions that not every car strike will necessarily meet the standard, but this fact pattern does.
  • Narrower lane for lesser-included instructions in “means” prosecutions. Trial courts may deny third-degree charges where the danger mechanism (vehicle, weapon-like object, etc.) is inherently capable of causing grave harm under the circumstances, because the jury could not rationally acquit of ABHAN while convicting only of the lesser.
  • Reinforcement of general-intent framing for ABHAN. Defense strategies hinging on “no intent to hurt” may be less effective at the charging stage in ABHAN cases unless they negate recklessness (e.g., true accident with no conscious disregard of risk).
  • Appellate review signal. The decision reaffirms that appellate courts may uphold the refusal of a requested charge despite imperfect trial-court reasoning when the record provides no evidentiary predicate for the instruction.

IV. Complex Concepts Simplified

Lesser-included offense instruction
A jury instruction allowing conviction of a less serious crime that is necessarily part of the greater crime. It is required only if the evidence would let a reasonable jury conclude the defendant committed the lesser crime but not the greater one.
ABHAN “means likely to produce death or great bodily injury”
One way to prove ABHAN does not depend on the victim actually suffering severe harm. It depends on whether the method used (the “means”) was capable, under the circumstances, of causing death or serious injury.
General intent vs. specific intent
“Specific intent” requires proof the defendant meant a particular result (e.g., meant to cause serious harm). “General intent” typically requires only that the defendant intentionally did the act, often satisfied by recklessness—taking a substantial, unjustifiable risk and consciously disregarding it. The Court treats ABHAN as general intent.
Recklessness
Acting while consciously disregarding a substantial and unjustifiable risk. In this case, reversing a vehicle to flee while an officer is close by and an open door creates a substantial risk of crushing or running over the officer.
Harmless error
Even if the trial court explains itself imperfectly, an appellate court will not reverse if the outcome is correct—here, if the evidence did not support giving the lesser-included instruction.

V. Conclusion

State v. Shank establishes a concrete application of South Carolina’s lesser-included-offense doctrine in ABHAN prosecutions under the “means likely” prong: when the undisputed circumstances show the defendant injured someone through conduct using a vehicle (or comparable dangerous means) in a way likely to cause death or great bodily injury, a Third-Degree Assault and Battery instruction is not warranted absent evidence supporting a rational inference of guilt only of the lesser offense.

The decision also reinforces two doctrinal anchors: ABHAN’s general-intent nature (where recklessness may suffice) and the principle that the absence of severe injury does not defeat ABHAN when the statutory route is the dangerousness of the means rather than the injury’s ultimate severity.