(concurring specially).
[¶ 77.] I concur and write specially on Issue 9 to discuss the trial court’s instruction which permitted the jury to “consider” the vaginal, back, leg and knee bruises and abrasions from the rape (rape trauma) on the charge of aggravated assault. The question is, how did the jury use that rape trauma evidence in its consideration of the aggravated assault charge. The Court focuses on a permissible use of the rape trauma evidence, while the dissent focuses on an impermissible use of that evidence.
[¶ 78.] While I cannot join the language of the dissent, I agree with its conclusion that the jury’s question and the literal language of the trial court’s responsive instruction made it theoretically possible for the jury to use the rape trauma as substantive evidence to support the charge of aggravated assault. On the other hand, the Court correctly points out that it was also possible that the rape trauma was properly used by the jury as credibility evidence9 to reject Moran’s testimony on *336the assault charge. This proper use was quite plausible because the rape trauma clearly tended to disprove Moran’s claim that the sexual intercourse was consensual. If the evidence of rape trauma caused the jury to disbelieve Moran’s claim of consensual sexual intercourse, that jury determination would also tend to discredit Moran’s claim that the aggravated assault trauma (the burn and the bite mark on the breast) were consensual, self-inflicted or caused by someone else. The problem is that we do not definitively know whether the jury properly “considered” the evidence on Moran’s credibility as suggested by the Court, or improperly as substantive evidence as suggested by the dissent.
[¶ 79.] That being the case, the disposi-tive question on appellate review is whether, in light of these two possible uses, Moran met his burden of establishing reversible error from the instruction. Moran’s burden in that regard is well settled. “An appellant has the burden to show not only that the instruction given was in error, but also that it was prejudicial error to the effect that under the evidence, the jury might and probably would have returned a different verdict if the [objectionable instruction] had [not] been given.” State v. Aesoph, 2002 SD 71, ¶47, 647 N.W.2d 743, 758 (citations omitted). Stated another way, an appellant “must demonstrate that, had the jury not been given the instruction ..., it would likely have reached a different result.” Id. at ¶48 (citing State v. Frazier, 2001 SD 19, ¶ 35, 622 N.W.2d 246, 259). Accord, State v. Pellegrino, 1998 SD 39, ¶ 9, 577 N.W.2d 590, 594 (defendant must show that refusal to grant an instruction probably would have returned a different verdict if the requested instruction had been given); State v. Rhines, 1996 SD 55, ¶ 111, 548 N.W.2d 415, 443 (defendant must show that the trial court’s refusal to give an appropriate instruction unfairly prejudiced the defendant); State v. Bartlett, 411 N.W.2d 411, 415 (S.D.1987) (defendant must successfully show a circuit court error of such proportions that the jury might and probably would have come to a different verdict if the defendant’s instruction had been given); State v. Grey Owl, 295 N.W.2d 748, 751 (S.D.1980)(appellant must show prejudicial error to the effect that under the evidence, the jury might and probably would have returned a different verdict if appellant’s instruction had been given). Therefore, assuming that the instruction was erroneous, Moran must still have established that under the evidence, the jury might, and probably would have returned a different verdict if a different instruction were given.
[¶ 80.] However, Moran failed to meet this burden for three reasons. First, as the Court points out, the jury was correctly instructed on the need to separately consider the separate charges and separate evidence supporting those charges. Supra n. 5. The jury was also correctly instructed on impeachment. Supra n. 4. Thus, the jury was correctly instructed on how to use the disputed evidence. Second, in addition to being properly instructed, there was substantial physical evidence of serious bodily injury that was wholly independent of the trauma suffered in the rape. Neither the scarring left from the cigarette burn nor the bruising and related bite mark were allegedly caused by the rape. Therefore, there was sufficient independent evidence to sustain the jury’s finding of aggravated assault.
[¶ 81.] Finally, the jury verdicts themselves suggest that the rape trauma evidence was used to impeach Moran’s credibility rather than being used as substantive evidence. After all, the only questions in dispute were whether the rape was consensual and whether the burn and bite mark were inflicted by Moran. Moran disputed both allegations *337claiming that the sexual intercourse was consensual and that the assault injuries were consensual, self-inflicted or caused by someone else. To resolve those factual disputes, the jury was required to decide whether it believed Moran or T.B.’s version of the events. Moran’s counsel even made that argument to the jury. She stated “ladies and gentlemen, I agree with [the state’s attorney] on one thing. It comes down to whom do you believe, do you believe [T.B.] or do you believe my client, Doug Moran.” By both verdicts, the jury clearly made that determination: it decided to believe T.B. rather than Moran. Because the jury obviously chose to believe T.B.’s version of the events, and because there was sufficient evidence of an aggravated assault apart from the bruises and abrasions caused by the rape, Moran has not established that the jury would have reached a different result had the trial court’s instruction not been given. For the same reasons, Moran has not established reversible error.
[¶ 82.] KONENKAMP, Justice, joins this special writing.
. The dissent concludes that neither the trial court nor the attorneys indicated that the jury question had anything to do with the credibility of witnesses. Infra n. 10. Moreover, the dissent suggests that "counsel did contemplate that the rape trauma would be used as substantive evidence of the aggravated assault.” Id. To support these propositions, the dissent relies on the defendant's, but not the states attorney's response to the jury question. However, the omitted portion of the discussion clearly suggests that the states attorney did not contemplate use of the rape trauma as substantive evidence in proving his case. The states attorney's only argument for answering the jury question in the affirmative was "I’d say yes to include the bruises in there. You have bruises on the [breast]”, which was an obvious reference to the assault trauma, not the rape trauma. This use of the evidence was consistent with the states attorney's argument to the jury. In that argument, he never even inferred that the rape trauma was substantive evidence of the aggravated assault. On the contrary, the states attorney only argued that the burn and bite supported that charge ("Then we go to get to the aggravated assault. And she had a bite here, but the burn itself is — that's complete indifference and it's — it's a serious bodily injury.”). Thus, it appears from the transcript that the state's attorney was not even referring to use of the rape trauma when he suggested that the answer to the juty question should be "yes." There is certainly nothing in the transcript to suggest that counsel contemplated using the rape trauma as substantive evidence in his prosecution of the aggravated assault charge.
If anything, the entire transcript actually explains why the jury most probably contemplated use of the rape trauma as impeachment evidence. In final argument, Moran's counsel continued the defense theme of consensual sexual relations that evening. With respect to the assault, defense counsel continued that defense by arguing that the marks on T.B.’s breast were the result of consensual activity. Moran’s counsel argued "I look at the picture and I don't see any teeth marks and it looks to me if you’ve got a — it looks like a hickey to me. I'm sorry, that’s what it looks like.” Given this defense argument, it is understandable that the jury would ask to consider the rape trauma as physical evidence that was inconsistent with Moran’s defense and tended to impeach both Moran’s claim of consensual sexual intercourse and his claim of consensual trauma on T.B.'s breast. Ultimately, however, it may be fairer to simply conclude that the cold transcript is not conclusive on this issue.