¶1(dissenting):
¶2I respectfully dissent.
¶3The sole question on appeal is whether the trial court committed reversible error in refusing to instruct the jury on the law of assault of a high and aggravated nature. I would hold it committed no error.
¶4I agree with the majority’s opinion that an assault of a high and aggravated nature may be charged as a lesser-included offense of first degree criminal sexual conduct with a minor where there is evidence the defendant committed only that offense rather than some greater offense. Cf. State v. Forbes, 296 S.C. 344, 345, 372 S.E.(2d) 591, 592 (1988) (“[Assault and battery of a high and aggravated nature] may be a lesser included offense of first degree [criminal sexual conduct] with a minor when there is evidence the defendant committed only the lesser rather than the greater offense.”). But this is not a *327case of that kind. There is no evidence pointing to Murphy’s having committed only the offense of assault of a high and aggravated nature.
¶5As the majority opinion indicates, an assault differs from a battery in that there is no touching of the victim in an assault. State v. Mims, 286 S.C. 553, 335 S.E. (2d) 237 (1985); Ford v. State, 330 Md. 682, 625 A. (2d) 984 (1993); see also People v. Abrams, 48 Ill. (2d) 446, 458, 271 N.E. (2d) 37, 45 (1971) (“Assault is an offense distinct from battery. If there has been any touching or any other form of physical contact with the victim, a battery has been committed and not an assault, assuming the presence of the other requirements for a battery.”). Here, the evidence indisputably shows Murphy touched the victim. Murphy had his right hand on his penis and the nub of his left arm, which had been partially amputated, on the child’s shoulder or head.
¶6“Acts aggravating an assault are to be distinguished from acts constituting an assault.” 6 Am. Jur. (2d) Assault and Battery § 3, at 9 (1963). One aggravating circumstance that transforms the offense of a simple assault and battery into an offense of assault and battery of a high and aggravated nature is, as the majority’s opinion correctly states, the taking of indecent liberties or familiarities with a female without her consent. State v. Jones, 133 S.C. 167, 130 S.E. (2d) 747 (1925). In my judgment, Murphy’s placement of the nub of his partially amputated arm on the two-year-old female child’s shoulder or head while holding his penis inches away from her face is the taking of indecent liberties or familiarities with a female without her consent and therefore is at the very least an assault and battery of a high and aggravated nature. See State v. Johnson, 84 S.C. 45, 65 S.E. 1023 (1909) (the defendant’s placing of his hand on the victim’s shoulder constituted an assault and battery with intent to ravish). The conduct at issue here is not an assault of a high and aggravated nature, the only lesser offense for which Murphy sought jury instructions.
¶7Although there might have been evidence warranting an instruction on assault and battery of a high and aggravated nature, Murphy made no request for that instruction.
¶8I would affirm.