State v. Price , 400 S.C. 110 ( 2012 )

FEW, C.J.

Demetrius Price appeals his conviction for assault and battery with intent to kill (ABWIK). He argues the trial court erred in instructing the jury it could infer malice from the use of a deadly weapon. We affirm.

I. Facts and Procedural History

Deon Cannick was shot in the neck at close range. The bullet exited through his back, leaving his spinal cord exposed. He was instantly paralyzed, but survived. There was no evidence the shooting was unintentional.

On the day of the shooting, Price and Lucius Simuel went to the apartment Deon shared with his brother, Deverol. The men asked Deon if he wanted to buy some drugs. When Deon declined, they asked him to go get Deverol so they could see if he wanted to make a purchase. Deon went upstairs and told Deverol the men wanted to see him. Deverol walked downstairs and outside to speak with Price and Simuel. Price offered to sell him pills and cocaine. When Deverol said “no,” the men forced him back into the apartment and pulled out guns. They asked him, “where is the iron at?”, which Deverol understood to mean, “where are the guns?”¹

Meanwhile, Deon was upstairs playing a video game. His dog got out of the room, and he chased after her. When he caught the dog on the stairs, he looked up and saw Price pointing a gun at him from below. He also saw that Simuel had a gun aimed at Deverol’s chest. Deon put his hands up and said, “please don’t shoot me. You can have anything you want.” Price and Simuel instructed Deon to come to them. With his hands still up, Deon began walking towards them. Price ran up the stairs, moved his gun to the left side of Deon’s neck, and shot him. Deon tumbled down the stairs. As Deon lay bleeding at the foot of the staircase, Price and Simuel again asked, “where’s the iron at?” and then ran away. Deverol went outside to look for Price and Simuel’s car, and he was shot in his hand and abdomen.

Price was indicted and tried for ABWIK, first degree burglary, possession of a firearm during the commission of a violent crime, and unlawful possession of a firearm under section 16-23-30(B) of the South Carolina Code (Supp.2011). In its jury charge, the trial court instructed the jury that malice was an element of ABWIK and that “malice may be inferred from the conduct of a person if that conduct shows a total disregard for human life. Inferred malice may arise when the deed is done with a deadly weapon.” The court also charged ABHAN as a lesser-included offense. During deliberations, the jury asked the court for a “summary of the conditions for ABWIK.” The trial court recharged the jury on ABWIK and ABHAN, including the instruction that malice may be inferred from the use of a deadly weapon. The jury found Price guilty of all charges, and the court sentenced him to life without the possibility of parole on both the ABWIK and burglary convictions.² Price appeals only the conviction for ABWIK.

II. Charge on Inferring Malice from Use of a Deadly Weapon

Price argues the trial court erred in instructing the jury that malice could be inferred from the use of a deadly weapon. See State v. Belcher, 385 S.C. 597, 685 S.E.2d 802 (2009).

A. Issue Preservation

The State claims this issue is not preserved because Price did not object to the instruction in the charge conference or when the court initially charged the jury, but only after the court recharged the jury. The State argues Price was required to object before the jury began deliberating, and by failing to do so, he waived any objection to the charge. See Rule 20(b), SCRCrimP (“[T]he parties shall be given the opportunity to object to the giving or failure to give an instruction before the jury retires, but out of the hearing of the jury---- Failure to object in accordance with this rule shall constitute a waiver of objection.”).³ Price argues, however, that the jury’s question on the “conditions of AJBWIK” demonstrates its deliberations were controlled by the recharge, not the initial charge. By objecting to the instruction that actually affected the jury’s decision, Price argues, he preserved the issue. We recognize there is a substantial question as to whether Price preserved this issue for appeal. However, we choose to address the merits of the issue. Cf. Atl. Coast Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 330, 730 S.E.2d 282, 285 (2012) (stating “we ... resolve the issue on preservation grounds when it clearly is unpreserved”).

B. The Inferred Malice Charge

Whether a trial court will be reversed for instructing the jury that malice may be inferred from the use of a deadly weapon depends on whether the jury was presented with evidence that, if the jury believed it, would reduce, mitigate, excuse, or justify the offense. Belcher, 385 S.C. at 610, 685 S.E.2d at 809 (holding “the ‘use of a deadly weapon’ implied malice instruction has no place in a[n] ... assault and battery with intent to kill[ ] prosecution where evidence is presented that would reduce, mitigate, excuse or justify the ... assault and battery with intent to kill”). We agree with the trial court that there was no evidence of self-defense or anything else which could excuse or justify ABWIK. We disagree, however, with the court’s conclusion that there was evidence of an absence of malice, which would reduce or mitigate the offense. In deciding to give the ABHAN charge, the court stated:

[Sjome of the testimony has indicated, indirectly though it might be, that this was something perhaps other than just a knocking down the door and going in there and shooting up everybody. And so there may be something there that is sufficient to indicate the absence of malice in this particular case.

We find no such evidence in the record. Our review of the record reveals no evidence that could reduce, mitigate, excuse, or justify this crime.

On appeal, Price points to testimony indicating that Deon and Deverol were drug-dealing gang members and that Deon’s shooting may have been part of a drug deal gone wrong. We disagree that these facts would reduce, mitigate, excuse, or justify the crime. It is undisputed that someone shot Deon in the neck, causing him serious injury. The shooter raised the gun, pointed it at Deon, approached him, and shot him at close range as he stood with his hands up. There was no evidence to the contrary. There may have been conflicting evidence as to who did these things, but it is not possible to interpret the evidence to support any conclusion other than that the person who shot Deon committed ABWIK. Therefore, if the jury believed Price is the person who shot Deon, Price is necessarily guilty of ABWIK. See State v. Coleman, 342 S.C. 172, 177, 536 S.E.2d 387, 389-90 (Ct.App. 2000) (affirming trial court’s decision to not charge ABHAN as lesser-included offense of ABWIK, where “Coleman’s manner in using the weapon — pointing the gun at Victim and then deliberately raising the gun to aim at Victim’s head just before he fired — could have only been reasonably calculated to kill or cause great bodily harm to Victim. Moreover, the resulting wound was near-fatal.” (footnote omitted)).

Belcher does not prohibit the trial court from instructing the jury that it may infer malice from the use of a deadly weapon where the only jury question created by the evidence is whether the defendant is the person who committed ABWIK. See Belcher, 385 S.C. at 612, 685 S.E.2d at 810 (stating “the permissive inference charge concerning the use of a deadly weapon remains a correct statement of the law where the only issue presented to the jury is whether the defendant has committed ... assault and battery with intent to kill”). On the facts of this case, we find no error.

Price’s ABWIK conviction is AFFIRMED.

SHORT, J., concurs in result only. HUFF, J., dissents.

1 . Urban Dictionary defines "iron” as "[a] gat, peice, heat, or any kind of handgun.” See Iron, Urban Dictionary (Apr. 13, 2004), http://www. urbandictionary.com/define.php?term=iron. Time Magazine rated Urban Dictionary as one of its "50 Best Websites” in 2008, the year Price shot Deon, and described it as follows: "To stay hip, visit Urban Dictionary, which has millions of user-submitted words and definitions. Visitors can vote on the best entries....” Anita Hamilton, Urban Dictionary — 50 Best Websites 2008, Time (Jun. 17, 2008), http://www. time.com/time/specials/2007/article/0,28804,1809858-1809955-1811527,00.html. On the date of publication of this opinion, the cited definition had 164 "up" votes and 48 "down” votes. "Peice,” according to Urban Dictionary, is not a misspelling. However, that entry has more down votes than up.

2 . The trial court sentenced Price to life for ABWIK pursuant to section 17-25-45 of the South Carolina Code (Supp.2011) because Price had prior convictions from Georgia for armed robbery and burglary in the first degree.

3 . The State makes the interesting argument that it is not possible for a trial court to correct an erroneously given charge that malice may be inferred from the use of a deadly weapon. The State points out that even under Belcher, malice may be inferred from the use of a deadly weapon. See Belcher, 385 S.C. at 612 n. 9, 685 S.E.2d at 810 n. 9 ("[W]e [do not] restrict the State from arguing to the jury for a finding of malice from the use of a deadly weapon.... 'Do jurors need the court's permission to infer something? The answer is, of course not.' ” (citation omitted)). Belcher simply prohibits the trial court from telling that to the jury under the circumstances described in the opinion. Because the inference is permitted, the trial court has no way of correcting itself when it improperly gives the charge, as a corrective statement about the charge may give the jury the incorrect impression it is not allowed to draw the inference.