State v. Williams ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
James Caleb Williams, Appellant.
Appellate Case No. 2017-001601
Appeal From Sumter County
Howard P. King, Circuit Court Judge
Opinion No. 5835
Heard May 27, 2021 – Filed July 14, 2021
REVERSED AND REMANDED
Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant
Attorney General William Frederick Schumacher, IV,
both of Columbia, and Third Circuit Solicitor Ernest
Adolphus Finney, III, of Sumter, all for Respondent.
MCDONALD, J.: James Caleb Williams appeals his convictions for attempted
murder and possession of a weapon during the commission of a violent crime,
arguing the circuit court erred in denying his motion for a directed verdict because
no direct or substantial circumstantial evidence supports a finding that Williams
had a specific intent to kill the victim. We find the doctrine of transferred intent
inapplicable to this charge of attempted murder; thus, we reverse Williams's
convictions.1
Facts and Procedural History
In the early morning hours of May 2, 2015, Corporal Randy Jones of the Sumter
Police Department (SPD) was dispatched to a shooting outside Club Cream in
Sumter. In the club parking lot, Corporal Jones found Ashley R., a fifteen-year-old
female who had been shot in the leg. Law enforcement subsequently recovered six
shell casings and a black Springfield model XD .40 Smith and Wesson from the
parking lot area.
On March 17, 2016, the Sumter County Grand Jury indicted Williams for two
counts of attempted murder and one count of possession of a weapon during the
commission of a violent crime. Williams pled not guilty, and his jury trial began
on July 17, 2017.
Chelsea Rogers reluctantly testified that on May 2, 2015, she went to Club Cream
for a teen party. She explained a "teen party" is "where a lot of teens get together,
you know, have fun, but something bad always ends up happening." Rogers and
her friends arrived around 11:30 p.m. or 12:00 a.m. and were "dancing and having
fun" when she saw "something going on" on the other side of the club; however,
when nothing materialized, the group went back to dancing.
Sometime between 1:00 and 2:00 a.m., Rogers left the club to go home. Her then-
boyfriend, Malik Myers, exited a few minutes later. Rogers recalled, "After that,
we [were] walking to the car and I told [Myers] to come on, let's go. When we got
over there to the car, I heard a gunshot." At that point, Myers "ran over there—to
where his friends were, I guess, and that's when I—I heard another gunshot, and
then I heard another one come back from right where everybody was at." She
further stated, "I didn't know if [Myers] had [a gun] or not, but I did not see him
with one."
Ashley R. arrived at the party between 10:00 and 11:00 p.m., and was leaving Club
Cream as it closed at 2:00 a.m. When Ashley R. reached the parking lot, she heard
"fight, gun, shooting. That's when—by the time I could duck down, [it felt] like a
1
With respect to Williams's conviction for possession of a weapon during the
commission of a violent crime, we reverse and remand.
bee sting. I touched my leg, and started to panic."2 She heard gunshots and saw
Myers, whom she had met earlier that day. Ashley R. testified, "I [saw] him shoot
after—I [saw] the other like two—two shots before he [shot], that's when I ducked
down." After initially answering that she did not see Myers shoot first, Ashley R.
explained, "I [saw Myers] with a gun, that's when I heard the—before he [shot], I
heard like two more, two or three gunshots before he [shot]." On the night of the
incident, Ashley R. told law enforcement she was shot by an "unknown black man"
and recalled at trial that she did not really know Myers until he "came to me and
apologized to me afterwards. That's how I [got] to know him."
On cross-examination, Ashley R. admitted that in her written statement to police,
she identified Myers as the man who started the shooting and her statement did not
include that she heard shots before Myers fired his weapon. Defense counsel
asked her on cross-examination:
Q: You can't testify today who was shooting the shots,
who was actually shooting, can you?
A: Not the first two shots.
....
Q: And the shot that hit you, you pretty sure who shot
you?
A: Like when it first happened?
Q: Uh-huh.
A: Since I [saw Myers], I thought he shot me, but that's
when—because after that, because he came to me, he
apologized—
...
Q: Why would he apologize if he did not shoot you?
What is he apologizing for?
2
Ashley R. estimated four or five shots were fired before she realized she had been
shot in the leg and was bleeding.
A: I'm not sure.
Q: He apologized for shooting you?
A: I'm not sure. After he said that, I said, "You good.
I'm not mad at you." He said, "Okay."
Q: Okay. But you don't know what he was apologizing
for?
A: No sir.
Myers pled guilty to one count of assault and battery of a high and aggravated
nature (ABHAN) for his involvement in the Club Cream incident. Despite his
prior written statement to the police indicating he and Williams "had beef" in the
past, Myers testified at trial: "Man, I just came from a hospital, man. I wasn't
thinking right when I was writing my statement. . . . [I]t wasn't no altercation. It
was just some words." Myers also contradicted his written statement—in which
Myers claimed Williams shot him in the leg—by denying Williams made any hand
gestures toward him while inside the club. Myers admitted he had his .38 revolver
that night "because anything could have happened after the club," and repeatedly
denied any knowledge of whether Williams was the person who shot him. Myers
testified, " I didn't know whether James Williams was shooting or not. I'm just
saying—I—you telling me—I just know I got shot. You're saying he's the shooter.
I'm telling you[,] I didn't know he was shooting. That's what this statement said."
At the conclusion of the State's case, Williams moved for a directed verdict,
arguing neither Ashley R. nor Myers could identify their shooter and the State's
expert could not conclusively connect the bullet removed from Ashley R.'s leg with
Williams's weapon.3 The circuit court denied the motion, finding "there is
3
SLED ballistics and firearms agent Michelle Eichenmiller testified that in her
opinion, cartridge cases found at the scene "were fired by [the Springfield model
XD .40 Smith and Wesson]." As to the bullet removed from Ashley R.'s leg,
Eichenmiller "didn't see enough individual characteristics to form an opinion as [to
whether] it was fired by that firearm." However, she noted "both the Springfield
XD and the bullet [she] received were six right, conventional rifling with
approximately the same land and groove width." The bullet removed from the
victim's leg "could have been [fired from] a 10-millimeter firearm or a 40 S&W."
evidence in the record, both direct and circumstantial that would support the
charges." The circuit court explained its "recollection of the testimony [was] that
the defendant, Mr. Williams, fired first and was firing at both Mr. Malik Myers and
that by transferred intent, at the other victim in this case."
Williams testified in his own defense. He arrived at the club alone around 11:00
p.m. and, at some point during the party, Myers bumped into him. Williams
explained, "We didn't say nothing to each other or anything, but I already knew
like something was going to happen, like once I left. That's why I was already in
my car getting ready to go ahead and leave." Williams knew something was going
to happen with Myers "[b]ecause we had problems since we [were] in middle
school, like we always had words. But I [knew] it was probably going to end up
coming to something one day."
Williams stated he was walking to his car when he saw Myers approaching. As
Myers had a gun and began shooting at him, Williams "started shooting, and that's
when I ran off when I [saw] the security guard coming, and I threw my gun
under—up under the tree." Williams testified, "But when I was shooting, I was
shooting into the back of my car so he would think I was shooting back at my car."
Williams claimed he shot into the back of his own car so that Myers "would have
thought I was shooting at him, and he would have been—he would have tried to
run off." However, Myers did not run. Instead, Myers "came close to shooting
[Williams]" and shot Qawiyy McFadden in the ear. Williams then left the parking
lot to drive McFadden to the hospital.4
On cross-examination, Williams admitted he had a black .40 caliber Springfield
with him in the parking lot and that he fired shots into his own car in an effort to
scare Myers. He found five bullet casings on top of his car, and regarding the
sixth, testified, "I probably shot it into the ground." Williams reiterated that Myers
Eichenmiller explained, "It's a little bit larger than a .38. Depending on the
firearm, I have seen some that have worn barrels that it could have been fired from,
but not usually." On cross-examination, Eichenmiller admitted a Glock 22 also
fires a .40 bullet.
4
Myers, who was initially charged with two counts of attempted murder, pled
guilty to one count of ABHAN for shooting McFadden in the left ear. McFadden
testified Myers's shot hit him from the front, and there is no evidence in the record
to the contrary.
shot at him first and claimed there were more than two shooters in the parking lot.5
He testified he did not shoot Ashley R., and he did not intend to shoot anyone.
McFadden was sitting in Williams's car when he saw "everybody coming out the
club." Williams's car was backed into the parking space, with the front of the car
facing the club. McFadden testified, "I got out the car to see what was the next
move for the night. And then mix-up—the shots starting going off when I was out
of the club. I [saw Williams] go like towards the back of his car and by maybe the
first five shots, I was already hit." On cross-examination, McFadden admitted he
did not know if Williams did any of the shooting, nor did he know who fired the
first shot.
At the end of his case, Williams renewed his motion for a directed verdict. The
circuit court denied the motion, finding, "there is evidence in the record by which
the jury could conclude that the offenses occurred . . . and the believability of those
witnesses will be a matter for the jury to determine."
The jury found Williams guilty of the attempted murder of Ashley R., but not
guilty of the attempted murder of Myers. The jury also found Williams guilty of
possession of a weapon during the commission of a violent crime. The circuit
court sentenced Williams on the attempted murder conviction to fifteen years'
imprisonment, suspended upon the service of ten years, and five years' probation.
As to his conviction for possession of a weapon during the commission of a violent
crime, the court sentenced Williams to a concurrent five years' imprisonment.
Standard of Review
"In ruling on a motion for directed verdict in a criminal case, a trial court must
view the evidence in the light most favorable to the State." State v. James, 362
S.C. 557, 561, 608 S.E.2d 455, 457 (Ct. App. 2004). "The trial court is concerned
with the existence or nonexistence of evidence, not its weight." Id. "The accused
is entitled to a directed verdict when the State fails to present evidence on a
material element of the offense charged." State v. Brannon, 388 S.C. 498, 503, 697
S.E.2d 593, 596 (2010).
5
SPD crime scene investigator Amanda Snapp testified during the defense's case.
Based on her examination, "it appeared that there [were] five bullet holes in the
roof line of the vehicle." Snapp further stated "there [were] no bullet holes in the
front of [Williams's] vehicle, so I can only imagine that they came from the back of
the vehicle, most likely."
Law and Analysis
Williams argues the circuit court erred in failing to direct a verdict on the
attempted murder charge because the State failed to present any direct or
substantial circumstantial evidence that he had the specific intent to kill anyone—
either Myers or Ashley R. He asserts the circuit court erroneously applied the
doctrine of transferred intent because the offense of attempted murder requires a
specific intent to commit murder. We agree.6
6
Our dissenting colleague urges us to decline to consider the applicability of the
doctrine of transferred intent to this charge of attempted murder. The dissent
would find the matter unpreserved for our review on the basis that the trial court
"was not given the opportunity to consider all the relevant facts, law, and argument
and rule on this issue." (Huff, J., dissenting). Our review of the record, however,
reveals the trial judge had such opportunity when defense counsel moved for a
directed verdict on the basis that the State had not met its burden of proof beyond a
reasonable doubt. In response, the State argued, "And also just specifically
because he [Williams] was not shooting directly at Ashley, I would point out that
we're proceeding under transferred intent and we do believe that he was firing his
gun with malice and the bullet struck Ashley R." The circuit court ruled
immediately−giving defense counsel no chance to reply to the State's
argument−citing Rule 19 of the South Carolina Rules of Criminal Procedure and
recollecting its understanding of the testimony that "the defendant, Mr. Williams,
fired and was firing at both Mr. Malik Myers and that by transferred intent, at the
other victim in this case."
While we acknowledge the defense could have better articulated the precise
question of transferred intent at trial, like the dissent, we recognize "a party need
not use the exact name of a legal doctrine in order to preserve it, but it must be
clear that the argument has been presented on that ground." State v. Carmack, 388
S.C. 190, 200–01, 694 S.E.2d 224, 229 (Ct. App. 2010) (quoting State v. Dunbar,
356 S.C. 138,142, 587 S.E.2d 691, 94 (2003)). Notably, the State did not raise
preservation as an issue in its respondent's brief. See I'On, L.L.C. v. Town of Mt.
Pleasant, 338 S.C. 406, 418 n.6, 526 S.E.2d 716, 722 n.6 (2000) ("Under present
rules, the appellant receives notice of the respondent's additional sustaining
grounds through the respondent's brief. The appellant may address those
additional grounds in a reply brief." (citing Rule 208(a)(3), SCACR.")); Atl. Coast
Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 332–33, 730 S.E.2d 282, 287
(2012) ("When the opposing party does not raise a preservation issue on appeal,
courts are not precluded from finding the issue unpreserved if the error is clear.
In State v. King, our supreme court affirmed this court's opinion that "the
Legislature intended to require the State to prove specific intent to commit murder
as an element of attempted murder." 422 S.C. 47, 55, 810 S.E.2d 18, 22 (2017)
(quoting State v. King, 412 S.C. 403, 411, 772 S.E.2d 189, 193 (Ct. App. 2015));
S.C. Code Ann. § 16-3-29 (2015) ("A person who, with intent to kill, attempts to
kill another person with malice aforethought, either expressed or implied, commits
the offense of attempted murder."). The supreme court explained, "Because the
phrase 'with intent to kill' in section 16-3-29 does not identify what level of intent
is required, the Court of Appeals properly looked to the legislative history of
section 16-3-29 and appellate decisions holding that 'attempt crimes require the
State to prove the defendant had specific intent to complete the attempted crime.'"
Id. (quoting King, 412 S.C. at 409, 772 S.E.2d at 192). Although the supreme
court agreed with the State that certain language referenced from State v. Sutton,
340 S.C. 393, 532 S.E.2d 283 (2000), was dicta, it found Sutton's definition of
"specific intent" to be an accurate statement of the law. King, 422 S.C. at 55–56,
810 S.E.2d at 22 ("'Attempted murder would require the specific intent to kill,' and
'specific intent means that the defendant consciously intended the completion of
acts comprising the [attempted] offense.'" (quoting Sutton, 340 S.C. at 397, 532
S.E.2d at 285)).
In State v. Gerald Williams, our supreme court considered a case in which one of
the issues raised involved "whether and to what extent the common law doctrine of
transferred intent applies to the newly-codified crime of attempted murder." 427
S.C. 148, 149, 829 S.E.2d 702, 702 (2019). There, the petitioner was convicted of
three counts of attempted murder related to his alleged shooting into an occupied
mobile home where he knew his intended victim was present, but did not realize
two other individuals were in the trailer as well. Id. at 150, 829 S.E.2d at 702. The
court explained:
Under the common law, transferred intent makes a whole
crime out of two halves by joining the intent to harm one
victim with the actual harm caused to another. Normally,
transferred intent applies to general-intent crimes.
However, attempted murder is a specific-intent crime in
However, the silence of an adversary should serve as an indicator to the court of
the obscurity of the purported procedural flaw." (Toal, C.J., concurring in result in
part and dissenting in part)).
South Carolina, and we have not yet addressed whether
transferred intent may supply the requisite mens rea for
such a crime.
Because this case was tried without objection as a
general-intent crime, we find the doctrine of transferred
intent applies in this instance. We therefore decline to
address the applicability of transferred intent to a
specific-intent crime such as attempted murder and
vacate the portion of the court of appeals' opinion dealing
with this issue.
Id. at 150, 829 S.E.2d at 702–03.7
Although not directly on point, our supreme court's more recent opinion in State v.
Smith, 430 S.C. 226, 845 S.E.2d 495 (2020), is helpful to our analysis here. Smith
involved an attempted murder conviction resulting from the accidental shooting of
an innocent victim in the vicinity of a dispute among rival gang members. Id. at
228, 845 S.E.2d at 496. There, the court explained, "[i]t was undisputed Smith did
not intend to harm [the victim]. Rather, Smith claimed he was acting in self-
7
As in Gerald Williams, this case was tried before our supreme court's decision in
King, but after the General Assembly's 2010 codification of the crime of attempted
murder. See 427 S.C. at 153 n.4, 829 S.E.2d at 705 n.4. However, unlike the
attempted murder charge in Gerald Williams, Williams's attempted murder charge
was not tried as a general intent crime. In the charge to the jury here, the circuit
court instructed that "an attempt includes a specific intent to do a particular
criminal act with an act falling short of the act intended." The court's instructions
on transferred intent and self-defense followed, without objection. Although a
brief charge conference was held on the record prior to closing arguments, and
defense counsel initially expressed concern about the transferred intent charge, the
remainder of the charge discussion was omitted from the record on appeal.
Williams has not appealed any error related to the circuit court's jury instructions
and argues only that the circuit court erred in denying his motion for a directed
verdict because "there was no substantial circumstantial evidence that appellant
intended to kill or murder Ashely R." Given the facts of this case and these
distinctions—including the unsettled status of the application of the doctrine of
transferred attempt to statutory attempted murder—we disagree with our good
colleague that any failure by Williams to challenge the circuit court's "transferred
intent" jury instruction forecloses our review of the legal issue raised here.
defense by shooting at a group of men who had threatened him. Id. Smith missed
his intended target and hit the victim by accident." Id. In conceding guilt to a
felon-in-possession possession charge, but denying the attempted murder charge
and asserting a claim of self-defense, "Smith implicitly acknowledged he had an
express intent to kill the men at whom he was shooting, but asserted his actions
were justified given his belief that he faced an imminent threat to his own life." Id.
at 229, 845 S.E.2d at 496. Perhaps recognizing "[t]he law at the time of trial
precluded an implied malice jury charge (based on the use of a deadly weapon)
when a viable self-defense claim existed . . . . the State sought to create a new
category of implied malice for 'felony attempted-murder,' with the predicate felony
being the felon-in-possession charge." Id. The supreme court reversed Smith's
conviction, addressing both the question of whether South Carolina recognizes the
charge of felony attempted murder (finding that, like the majority of states, we do
not) as well as the State's request for the erroneous implied malice charge. Id. at
230, 845 S.E.2d at 496–97.
As these issues were dispositive, the court declined to address Smith's additional
argument that "the court of appeals erred in finding the doctrine of transferred
intent applied to attempted murder because it is a specific-intent crime. Id. at 234
n. 9, 845 S.E.2d at 499 n. 9. In particular, Smith argue[d] the requisite specific
intent necessary to support an attempted murder conviction must be the specific
intent to kill a specific person." Id. The court's footnote then referenced the State's
plan—if the court were to reverse Smith's convictions—to "charge Smith with
three counts of attempted murder for shooting at the rival group, and one count of
assault and battery of a high and aggravated nature (ABHAN) for shooting the
victim" and noted that because ABHAN is a general-intent crime, "there would be
no question on remand as to the applicability of the doctrine of transferred intent."
Id.; see also Gerald Williams, 427 S.E.2d at 157, 829 S.E.2d at 707 ("It is well-
settled in South Carolina that the doctrine of transferred intent applies to general-
intent crimes.").
Considering this footnote along with our supreme court's recent pronouncements in
King and Gerald Williams, along with Williams's acquittal here of the attempted
murder of Malik Myers, we find the doctrine of transferred intent inapplicable in
the context of the current indictment charging Williams with the attempt "to kill
another person, Ashley R., with malice aforethought, either express or implied, by
firing a gun numerous times at Malik Raekwon Myers, and striking Ashely R. with
a bullet in her thigh." While it is undisputed that Williams was armed and fired his
weapon in the parking lot, we cannot reconcile the jury's acquittal of Williams on
the attempted murder charge for the shooting of Myers with its guilty verdict for an
attempted murder of Ashley R. The language of the indictment and the State's
contention that it was "proceeding under transferred intent and we do believe that
[Williams] was firing his gun with malice and the bullet struck Ashely R." are
incongruous with such a result.
At oral argument, the State reiterated it was proceeding under the doctrine of
transferred intent and admitted Williams did not possess a specific attempt to kill
Ashley R. with malice aforethought. This was a reasonable position in light of our
case law at the time of trial; however, we do not understand how the specific intent
for an attempted murder for which Williams was acquitted (shooting at Myers)
could be transferred for purposes of establishing a specific intent to kill Ashley
R.—even if the doctrine of transferred intent were applicable to South Carolina's
codification of attempted murder, a specific-intent crime.
Conclusion
We find the doctrine of transferred intent inapplicable to this charge of attempted
murder. The circuit court erred in denying Williams's directed verdict motion
because § 16-3-29 requires proof of a specific intent to kill. The jury acquitted
Williams of the attempted murder of Myers, and no evidence in the record suggests
Williams possessed any intent to kill Ashley R. See Gerald Williams, 427 S.C. at
150, 829 S.E.2d at 702–03 (holding attempted murder is a specific-intent crime in
South Carolina); Brannon, 388 S.C. at 503, 697 S.E.2d at 596 (explaining a
defendant "is entitled to a directed verdict when the State fails to present evidence
on a material element of the offense charged."). Thus, we reverse Williams's
conviction for attempted murder. Given that we reverse Williams's conviction for
attempted murder, "we must also reverse and remand his conviction for possession
of a weapon during the commission of a violent crime." Smith, 430 S.C. at 230
n.4, 845 S.E.2d at 497 n.4. Williams "must be reconvicted of committing a violent
crime before he can properly be found to have illegally possessed a weapon during
that crime."8 Id.; see also S.C. Code Ann. § 16-23-490(A) (2015) (requiring where
a person is in possession of a firearm "during the commission of a violent crime
and is convicted of committing or attempting to commit a violent crime as defined
in Section 16-1-60, he must be imprisoned five years, in addition to the punishment
provided for the principal crime.").
8
As the State notes in its brief, a proper remedy on remand "would be retrial of
Williams on the charge of ABHAN and possession of a weapon during the
commission of a violent crime."
REVERSED and REMANDED.
THOMAS, J., concurs.
HUFF, J., dissenting in a separate opinion.
HUFF, J.: I respectfully dissent. First, and most importantly, whether the
doctrine of transferred intent was properly applied in this attempted murder case
was never an issue raised to the trial court, and was certainly not a basis of
Appellant's motions for directed verdict before the trial court. Accordingly, this
argument is not preserved for our review. The only preserved issue is whether the
State presented sufficient evidence that Appellant shot Ashley R. Because,
viewing the evidence in a light most favorable to the State, I find the trial court
properly submitted this case to the jury and denied Appellant's directed verdict
motions, the inquiry should end here. However, further addressing the majority
opinion, I also note Appellant never raised an issue to the trial court in regard to
any inconsistencies with the verdicts and does not appear to have done so on
appeal. Rather, the majority latches on to this, at least in part, as an underlying
basis for reversing Appellant's convictions. Nonetheless, even assuming there is
no error preservation problem in this regard as well, given the evidence and
arguments presented at trial, I do not have the same problem the majority does in
"reconcil[ing] the jury's acquittal of [Appellant] on the attempted murder charge
for the shooting of Myers with its guilty verdict for an attempted murder of Ashley
R." As more fully set out below, based upon the evidence presented at trial—
particularly that by Appellant—as well as the argument of defense counsel, the
jury could have concluded that Appellant fired the bullet that struck Ashley R. but
that a third person fired the bullet that struck Myers. Finally, I disagree with the
majority's conclusion that—based upon our supreme court's recent
pronouncements in this area of law—the doctrine of transferred intent is
inapplicable in this attempted murder case. Accordingly, I would affirm
Appellant's convictions.
I. FACTUAL/PROCEDURAL BACKGROUND
Around 1:30 a.m. on May 2, 2015, gunfire broke out in the parking lot of Club
Cream in Sumter, where a teen party had just taken place. Three individuals
suffered gunshot wounds during the incident: Ashley R., a then fifteen-year-old
female who was shot in her left leg; Malik Myers, a then seventeen-year-old male
who was shot in his left leg and admitted he fired a .38 revolver during the
incident; and Qawiyy McFadden, who was outside Appellant's car at the time of
the shooting and suffered a gunshot wound to his ear. Upon securing the scene,
officers located a Springfield model XD .40 Smith and Wesson pistol in a grassy
area, as well as six spent shell casings. All six of the fired cartridge cases were
later determined to have been fired from the recovered Springfield Smith and
Wesson—a gun Appellant admitted he fired and abandoned at the scene on the
night in question. No other weapon was found at the scene and it was noted that if
a revolver had been shot, it would not have left any shell casings, as such would
have remained in the cylinder of the gun.
Appellant was indicted on two counts of attempted murder: one for the attempted
murder of Myers, based upon his firing a gun at Myers, and the second for the
attempted murder of Ashley R., based upon his firing a gun at Myers but striking
Ashley R. Appellant was also charged with possession of a weapon during the
commission of a violent crime. Myers was likewise indicted on two counts of
attempted murder: one for the attempted murder of Appellant, based upon his
firing a gun at Appellant, and the second for the attempted murder of McFadden,
based upon his firing a gun at Appellant and hitting McFadden. He was also
charged with possession of a weapon during the commission of a violent crime
stemming from this incident. Myers thereafter entered a guilty plea in regard to
this matter and was serving his sentence at the time of Appellant's trial.
On May 4, 2015, Myers gave a statement to law enforcement indicating that on the
night in question Appellant bumped into him while in the club and also made a
hand gesture, pointing his finger at Myers as if he had a gun, pulling a trigger.
Myers indicated in his statement that Appellant left the club first and, when Myers
went outside and saw Appellant's car, he walked to his own car and retrieved a .38
gun. He was attempting to leave when he heard shooting and looked behind him to
see that it was Appellant pointing a black gun at him and shooting. Myers stated
he pulled out the .38 and shot back, "shoot[ing] [Appellant's] car about 5 time[s]."
Myers indicated he had been shot in his left leg and was taken to the hospital by a
friend. He stated Appellant "had beef with [him] in the pas[t]," saying things to
him and trying to fight him. Myers also noted in his statement that there was "a
girl [he] was playing dice[] [with] on Poplar Square[] [and] she got shot by
[Appellant's] gun." Myers's statement was published to the jury.
While on the stand in Appellant's trial, Myers was less than cooperative, denying
that he and Appellant had ever had disagreements, denying anything happened
between him and Appellant at the club that night, and denying that there was an
altercation between them. When confronted with his written statement, Myers
claimed he had "just come from the hospital" when he gave his statement and he
"wasn't thinking right." He denied that he and Appellant bumped into each other
that night, and when asked if Appellant shot him that night, Myers replied, "Nope.
I don't know." He agreed that he told law enforcement that Appellant bumped into
him that night, but testified he really did not see his face and only "figured it was
[Appellant]." He acknowledged, however, that he had identified Appellant as the
person who made the hand gestures at him and told law enforcement that Appellant
began shooting at him and he shot back. He testified that once he was outside the
club, he armed himself with a .38 revolver, not because of an altercation inside the
club with Appellant but "because anything could have happened after the club."
When asked on the stand how many shots he fired at Appellant, Myers stated he
fired all six shots from the revolver. Myers testified he did not know if Appellant
was shooting or not, and he just knew that he got shot and he did not know who
shot him.
Ashley R. testified she exited the club and was in the parking lot when she heard
"fight, gun, shooting." By the time she could duck down, she felt something akin
to a bee sting, touched her leg, and began to panic. She heard two or three
gunshots and saw Myers begin to shoot after those gunshots. She specifically
testified she did not see Myers shoot first.9 About four or five gunshots were fired
before she felt herself get hit by a bullet. She told law enforcement she did not
know who it was, but there was an unknown black male—and she described his
clothing—who was one of the people involved in the shooting that night. She did
not know Myers at the time of the shooting, but he later apologized to her about the
incident and that was how she got to know him. Ashley R. testified she had been
at Poplar Square earlier on the day of the incident playing dice, and she had seen
one of the unknown suspects there at that time. This person at Poplar Square was
the person she identified as the one who started shooting after she heard the two
9
The majority indicates Ashley R. "admitted in her written statement to police, she
identified Myers as the man who started the shooting and her statement did not
include that she heard shots before Myers fired his weapon." My reading of the
record is not in accord. On cross-examination, Ashley R. was asked if she
identified to the police the man who started the shooting as the one who she saw at
Poplar Square. She responded, "Yes, but. . . after I heard the two shots shooting."
Thus, she clearly indicated she had identified the person she saw at Poplar Square
as one of the shooters, but not as the first shooter. Further, when challenged as to
whether she mentioned to the police that someone else had shot first, Ashley R.
twice insisted that she did write that, and she thereafter continued to maintain that
she heard two shots before Myers began shooting. Ashley R.'s written statement is
not included in the record.
shots, i.e., Myers. Ashley R. did not know who fired the first two shots. Asked
why Myers would apologize to her if he had not shot her, Ashley R. stated she was
not sure. She clarified that she heard at least two people shooting guns that night,
and she did not know who fired the gun that resulted in her injury. Myers's then
girlfriend, Chelsea Rogers, testified that she exited the club with Myers following
behind her that night; as she got to the car she heard gunshots; when the gunshots
started, Myers who had been behind her, began running toward his friends on the
opposite side of the gunfire; and she saw Myers when the first gunshot rang out
and he was not firing.
South Carolina Law Enforcement (SLED) Agent Michelle Eichenmiller, qualified
as an expert witness in ballistics and firearm examination, testified that she tested
the six cartridge cases found at the scene, the bullet recovered from Ashley R., and
a bullet test fired from the gun recovered at the scene. The agent opined all the
fired cartridge cases found at the scene were fired by the Springfield model XD .40
Smith and Wesson. When she compared the test fired bullet to the bullet recovered
from Ashley R., however, there were not enough individual characteristics to form
an opinion as to whether the bullet recovered from Ashley R. was fired from that
gun. Agent Eichenmiller observed they "rifled the same," they had "six lands and
grooves" that were approximately the same width, and both had six twists to the
right, but the comparison was deemed inconclusive. Agent Eichenmiller testified it
was not uncommon to be unable to make a conclusive match, even when she has
observed a bullet shot from a firearm, explaining that a well-produced or well-
cared for firearm may not have enough individual marks from which to form an
opinion, and a Springfield is typically a little bit better manufactured gun. She
testified the recovered bullet could have been fired from a 10-millimeter firearm or
a .40 Smith and Wesson. When asked if it could have been fired from a .38, the
agent stated it was a little bit larger than a .38 and, depending on the firearm, she
had seen some that had worn barrels that it possibly could have been fired from,
"but not usually." Agent Eichenmiller also agreed there were other weapons that
would fire a .40 round, but observed those firearms have different rifling than what
they saw in the Springfield and in the bullet they had. Notably, the State presented
no evidence concerning ballistics or the bullet wound in regard to Myers other than
he sustained an injury to his left leg.
Detective Nathalie Kelly testified Appellant gave a statement on May 6, 2015,
following his arrest. Appellant's statement was admitted without objection and
published to the jury, providing as follows:
I got to Club Cream at like 11:00 in my green Mustang. I
went in the club and danced around until the party was
over. When I got out, I was sitting in my car about to
leave. I seen [Myers] about to walk up to my car, so I
got out and went to the back, opened my car, and by the
time I got to the back to open my car, [Myers] had his
gun and I had a gun. So he started shooting, so I started
shooting, but I was shooting in the back of my car so the
bullets wouldn't hit nobody. And I didn't want him to
think I was shooting in the air. And when I was inside
the club, [Myers] bumped into me, so I already knew he
was up to something.
I was behind my car shooting into my car so my gun
looked like it was pointing at him. He was in the front of
my car shooting and threw my gun under the tree because
I seen a security.
Detective Kelly testified that, outside of his written statement, Appellant indicated
that the gun they recovered was the gun he referred to in his statement as being
thrown under a tree that he used that night. Detective Kelly testified that Myers
was charged with shooting at Appellant and with shooting McFadden, who had
been in Appellant's car, and that Appellant's Mustang sustained bullet holes. She
further stated that Appellant claimed he shot into the back of his car. Law
enforcement had several pictures depicting holes in the canopy portion of
Appellant's car.
Following Detective Kelly's testimony, the State rested, at which point Appellant
moved for a directed verdict. The following colloquy occurred:
[Defense Counsel]: . . . . Your, Honor, at this time I
would move for a directed verdict on behalf of my client.
I certainly don't think the State has met its burden beyond
a reasonable doubt. From its own witness testimony
today, it was very difficult for [Myers]. Said he's not
sure who shot him. Of course, we sort of heard from
him, it's sort of hard to believe what he says. But even
some of the other testimony, even the expert witness they
had, she couldn't say conclusively that that bullet that
was pulled out of Ashley's leg was shot by this weapon
that we have here in court.
[The Court]: She didn't say it was not, either.
[Defense Counsel]: Yeah, but she didn't say it was,
either. Anyway, I'm making that motion here on — —
on those grounds, Your Honor.
. . .
[Solicitor]: Your Honor, there's testimony on the record
from multiple witnesses, some through impeachment
purposes, but [from] multiple witnesses that [Appellant]
shot first. [Appellant] himself admitted that there had
been bad blood between them in the club. [] Myers
through his statement under impeachment acknowledged
they had bad blood in the club. They both armed
themselves, and started a shootout. I think this becomes
a jury question. I certainly think we've established
malice aforethought. As it pertains to Ashley R., Your
Honor, I think there is strong evidence that the bullet did
come from the gun. The barreling, the rifling is all the
same. It was not able to be conclusive, but there's plenty
for me to argue, and I think it's a jury question at this
point. And also just specifically because he was not
shooting directly at Ashley, I would point out that we're
proceeding under transferred intent and we do believe
that he was firing his gun with malice and the bullet
struck Ashley R.
...
And Your Honor, the other thing, these are violent crimes
and he's admitted he had a gun.
[The Court]: All right. Rule 19 of the South Carolina
rules of criminal procedure provides that upon the motion
of the defendant or on its own motion, the Court should
direct a verdict for defendant — — in the defendant's
favor on any offense charged in [an] indictment after the
evidence on either side is closed if there's a failure of
competent evidence tending to prove the charges in the
indictment. . . . [T]he rule goes on to say that in ruling on
this motion, the trial judge shall consider only the
existence or nonexistence of the evidence and not its
weight.
My recollection of the testimony was that — — whether
it's believable or not does not matter, but my recollection
of the testimony is that the defendant, [Appellant], fired
first and was firing at both [] Myers and that by
transferred intent, at the other victim in this case. And
my job is to determine the existence or nonexistence of
the evidence and not its weight. That is a matter solely
for the jury to determine, and it would be improper for
me to interpose my opinion of the evidence or to weigh
the evidence and grant a . . . directed verdict if there is
any evidence in the record. And there is evidence in the
record, both direct and circumstantial that would support
the charges in this case. The motion is respectfully
denied.
Thereafter, Appellant presented witnesses on his own behalf. First, McFadden
testified he left Club Cream around 1:00 a.m. and was sitting in Appellant's
Mustang10 when he saw everyone coming out of the club, at which time he exited
the car to see what everyone was planning for the night. Then, "shots started going
off" and he saw Appellant go toward the back of his car. By about the first five
shots, McFadden had been shot in his left ear. He did not see who was shooting,
and he did not see Appellant shooting. After he was shot, Appellant drove him to
the hospital.
Appellant also presented Crime Scene Investigator Amanda Snapp as his witness.
Investigator Snapp took pictures of Appellant's car several days after the incident.
Investigator Snapp stated she was not an expert and could not testify concerning
10
McFadden testified Appellant's car had been backed into the parking space
with his car facing toward the club.
the trajectory of a bullet. However, she did state she found what appeared to be
five holes in the roof line of Appellant's vehicle. Additionally, when asked about
the direction of the bullets, she stated, "there [were] no bullet holes in the front of
the vehicle, so I can only imagine that they came from the back of the vehicle,
most likely."
Lastly, Appellant testified in his own defense. Like Myers, he was seventeen years
old at the time of the incident. Appellant testified that on the night in question,
Myers bumped into him while inside the club, and he knew "something was going
to happen" once they left the club because the two of them "had problems since
[they were] in middle school." Appellant stated he exited the club around 1:30 and
went to his car, which he had backed into a parking space. He saw Myers coming
toward his car and observed Myers had a gun. According to Appellant, he then got
out of his car and when he got to the back of his car, Myers started shooting.
That's when Appellant started shooting and then ran off and threw his gun under a
tree when he saw a security guard. Appellant explained that when he was
shooting, he shot into the back of his car so Myers would think he was shooting at
him and he would run off, but Myers did not run. Rather, Myers came close to
shooting Appellant and Appellant ran. When Appellant returned to the car, he
found out McFadden had been shot and took him to the hospital. Appellant stated
he was not sure why Myers wanted to shoot him but he knew they "had beef" since
middle school. He denied shooting first, claiming Myers shot first, Myers shot
more than one time, and there were no bullet holes in the front of his car but
several in the rear where Appellant was standing. Appellant denied shooting
Myers or Ashley R. that night.
On cross-examination, Appellant admitted the shell casings found at the scene
came from his black Springfield .40 that he dropped in the bushes. Appellant
stated he was not sure if he fired every round directly into his car, but he tried to
get all of them in the car, and there were five holes in the top of his car. When
asked what happened to the sixth bullet, Appellant stated that he "probably shot it
into the ground." He stated "everything was happening too fast" but that he knew
that he "was shooting the back of [his] car so [he] wouldn't hit anybody." When
questioned about how many rounds Myers fired at him, Appellant stated it was
more than one but he was not sure if it was more than two or three. When the
solicitor then asked if he and Myers were the only two shooters out there that
night, Appellant replied, "No. It was other shooters out there because I — — yeah.
It was other shooters out there." When the solicitor challenged Appellant as to
why he had not stated that during questioning by defense counsel or told
Investigator Kelly, Appellant maintained he had told both defense counsel and the
investigator, and continued to maintain in his testimony that there was another
shooter that night.
The defense rested and the State called Investigator Kelly in reply, who testified
Appellant never indicated to her that there was any other shooter in this matter
besides him and Myers. After the State again rested, defense counsel stated, "Your
Honor, just move again for a directed verdict in this matter for the reasons I stated
earlier." The trial court again noted it was to consider only the existence or
nonexistence of evidence, not its weight, found there was evidence in the record
from which the jury could conclude that the offenses occurred, and denied
Appellant's motion.
During the solicitor's closing argument, he argued Appellant was guilty of the
attempted murder of Ashley R. based upon the doctrine of transferred intent.
Defense counsel argued in closing that the defense did not contest the fact that
Myers and Ashley R. were shot, but argued the State failed to prove that Appellant
shot both of them. Counsel also argued the evidence showed that five bullets
entered the back of Appellant's car, which left one remaining bullet, and suggested
this one "magic bullet" would have had to hit Myers, "make a right turn, go around
Ashley, [and] hit Ashley on the other side on her left leg" to fit the State's theory.
During a discussion on jury charges, the solicitor requested an instruction on
transferred intent, which the court indicated it intended to charge with no objection
from the defense.11 The trial court thereafter instructed the jury on the doctrine of
transferred intent without objection. The jury was instructed that if it were to find
Appellant not guilty of both the attempted murder of Myers and Ashley R., it was
to go no further in its deliberations, but if it found Appellant "guilty of either of the
attempted murder charges," it was to then consider the separate charge of
possession of a weapon during the commission of a violent crime. Accordingly,
the jury was implicitly instructed that permissible verdicts included guilty verdicts
as to only one of either of the attempted murder charges. Following deliberations,
11
We note the trial court asked defense counsel if he believed a charge on
transferred intent was appropriate, to which counsel replied, "Yes, sir," but he then
noted some hesitancy because he mistakenly believed—as verified by review of
the indictments—that Myers had been charged with shooting Ashley R. When it
was clarified that Myers had not been charged with shooting Ashley R. but had
been charged with shooting McFadden and Appellant had been charged with
shooting Ashley R., defense counsel raised no objection to a transferred intent
charge.
the jury found Appellant not guilty of the attempted murder of Myers, guilty of the
attempted murder of Ashley R., and guilty of possession of a firearm during the
commission of a violent crime.
II. STANDARD OF REVIEW
"When ruling on a motion for a directed verdict, the trial court is concerned with
the existence or nonexistence of evidence, not its weight." State v. Prather, 429
S.C. 583, 608, 840 S.E.2d 551, 564 (2020) (quoting State v. Hernandez, 382 S.C.
620, 624, 677 S.E.2d 603, 605 (2009)). "In an appeal from the denial of a directed
verdict motion, the appellate court must view the evidence in the light most
favorable to the State." Id. (quoting State v. Cope, 405 S.C. 317, 348, 748 S.E.2d
194, 210 (2013)). "When the evidence presented merely raises a suspicion of the
accused's guilt, the trial court should not refuse to grant the directed verdict
motion." State v. Phillips, 416 S.C. 184, 192, 785 S.E.2d 448, 452 (2016).
"However, the trial court must submit the case to the jury if there is 'any substantial
evidence which reasonably tends to prove the guilt of the accused, or from which
his guilt may be fairly and logically deduced.'" Id. at 192-93, 785 S.E.2d 448(quoting State v. Mitchell, 341 S.C. 406, 409, 535 S.E.2d 126, 127 (2000)).
III. LAW/ANALYSIS
On appeal, Appellant argues there is no substantial circumstantial evidence that he
shot Ashley R. or that he specifically intended to attempt to murder her. He argues
the same was true of Myers, the jury acquitted him of that attempted murder, and if
he did not possess the intent to shoot Myers, it is hard to fathom how the trial court
thought there was substantial circumstantial evidence he attempted to shoot and
kill Ashley R. Appellant points to the testimony of the SLED expert that the
comparison of the bullet removed from Ashley R.'s leg to that of one test fired
from the Springfield .40 caliber weapon yielded an inconclusive result. He
maintains that such an inconclusive result does not rise to the level of substantial
circumstantial evidence, and further argues "there is no evidence [he] intended to
shoot and kill Ashley." Appellant contends the trial court committed error in
reasoning that the State carried its burden at the directed verdict stage because he
could be guilty by reason of transferred intent. I disagree.
A. Preservation of Transferred Intent Argument
It is well settled that, in order to be preserved for appellate review, an issue must
be raised to and ruled upon by the trial court. State v. McKnight, 352 S.C. 635,
646, 576 S.E.2d 168, 174 (2003). "The general rule of issue preservation is if an
issue was not raised to and ruled upon by the trial court, it will not be considered
for the first time on appeal." State v. Porter, 389 S.C. 27, 37, 698 S.E.2d 237, 242
(Ct. App. 2010). "Imposing this preservation requirement is meant to enable the
trial court to rule properly after it has considered all the relevant facts, law, and
arguments." Id. at 38, 698 S.E.2d at 242. An appellate court is limited by
appellate rules that allow the court to consider only the precise question that was
before the trial court and ruled upon by the court. State v. Whitten, 375 S.C. 43,
47, 649 S.E.2d 505, 507 (Ct. App. 2007). "[E]rror preservation has been a critical
part of appellate practice in this State for a long time, serving to ensure . . . that we
do not reach issues which were not ruled upon by the trial court." Atl. Coast
Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 329, 730 S.E.2d 282, 285
(2012). "Issue preservation rules are designed to give the trial court a fair
opportunity to rule on the issues, and thus provide us with a platform for
meaningful appellate review." Id. (quoting Queen's Grant II Horizontal Prop.
Regime v. Greenwood Dev. Corp., 368 S.C. 342, 373, 628 S.E.2d 902, 919 (Ct.
App. 2006)). "[T]hese rules must . . . be applied consistently and not selectively."
Id. "[T]his is not a 'gotcha' game aimed at embarrassing attorneys or harming
litigants, but rather is an adherence to settled principles that serve an important
function." Id. at 329-30, 730 S.E.2d at 285. "While it may be good practice for us
to reach the merits of an issue when error preservation is doubtful, we should
follow our longstanding precedent and resolve the issue on preservation grounds
when it clearly is unpreserved." Id. at 330, 730 S.E.2d at 285. "A party need not
use the exact name of a legal doctrine in order to preserve it, but it must be clear
that the argument has been presented on that ground." State v. Dunbar, 356 S.C.
138, 142, 587 S.E.2d 691, 694 (2003). "[T]he issue must be sufficiently clear to
bring into focus the precise nature of the alleged error so that it can be reasonably
understood by the [trial court]." Herron v. Century BMW, 395 S.C. 461, 466, 719
S.E.2d 640, 642 (2011).
As noted, the only basis for Appellant's directed verdict motion was that the State
failed to meet its burden to prove he shot Myers or that the bullet that struck
Ashley R. was shot by Appellant's weapon. Because Appellant was acquitted of
the attempted murder of Myers, the only preserved issue on appeal is whether the
trial court erred in denying his motion for directed verdict as related to the charge
concerning Ashley R., i.e., whether there was sufficient evidence Appellant's bullet
struck Ashley R. The Solicitor specifically addressed the argument actually raised
by Appellant, asserting there was "strong evidence" that the bullet which hit
Ashley R. did come from Appellant's gun. Although the solicitor included in his
response that the State was proceeding under the theory of transferred intent in
regard to Ashley R., the mere fact that he noted this as the State's theory of the
case, and the trial court recognized this as the State's theory, did not raise to the
trial court that Appellant contested the applicability of that theory. Notably, when
the solicitor specifically stated during the directed verdict motion that the State was
proceeding on this basis, Appellant raised no objection and made no argument that
he was entitled to a directed verdict because transferred intent could not be applied
to a specific intent crime. Further, the trial court charged transferred intent to the
jury without objection, thereby evidencing Appellant's acquiescence to the theory
in his trial. Indeed, as observed by the State in oral argument, the solicitor made
clear from the outset of the case the State was proceeding with the attempted
murder of Ashley R. charge—through the theory of transferred intent—based upon
Appellant's firing a gun at Myers, and at no time during the trial did Appellant
object to that theory. Accordingly, at a minimum, the theory of transferred intent
was tried by consent, and Appellant should not now be allowed to grasp onto it as a
basis for his directed verdict motion simply because it was mentioned by the
solicitor as the State's theory of the case when presenting the State's case in
response. I do not believe that in any manner the trial court could have possibly
understood from Appellant's directed verdict motion that he was challenging the
sufficiency of the evidence on the attempted murder charge in relation to Ashley R.
on the basis that Appellant was required to have a specific intent to shoot her and
could not be guilty by virtue of transferred intent. While the trial court clearly
recognized—and restated—that the State was proceeding under the theory of
transferred intent in this attempted murder, specific-intent crime, Appellant did not
raise to the court that such was improper, and neither did the trial court consider
"all the facts, law, and arguments" regarding the same and make a ruling on such.
See Porter, 389 S.C. at 37-38, 698 S.E.2d at 242 ("Imposing [the preservation
requirement that an issue be raised to and ruled upon by the trial court] is meant to
enable the trial court to rule properly after it has considered all the relevant facts,
law, and arguments."). Because the trial court was not given an opportunity to
consider all the relevant facts, law, and argument and rule on this issue, I would
find it is not preserved for appellate review.12
12
I acknowledge the State did not challenge Appellant's preservation of this issue
in its appellate brief. It is well settled, though, that an appellate court is "not
precluded from finding an issue unpreserved even when the parties themselves do
not argue error preservation to us." Lewis, 398 S.C. at 329, 730 S.E.2d at 285
(2012). As aptly observed by the majority, an adversary's silence may "serve as an
indicator to the court of the obscurity of the purported procedural flaw." Id. at 333,
730 S.E.2d at 287 (Toal, C.J., concurring in result in part and dissenting in part). I
note, however, at the time of the filing of its brief, the State relied on this court's
As to Appellant's argument that the evidence was insufficient to rise to the level of
substantial circumstantial evidence that he shot Ashley R., I also disagree. Though
the evidence was inconclusive as to whether the bullet recovered from Ashley R.'s
leg was fired from Appellant's weapon, it is undisputed that all six of the cartridges
at the scene were fired from Appellant's Springfield model XD .40 Smith and
Wesson. Further, the SLED expert testified a comparison of the bullet fired from
that weapon and the bullet retrieved from Ashley R.'s leg showed they were rifled
the same, they had "six lands and grooves" that were approximately the same
width, and they had six twists to the right. Though a .38 caliber weapon could fire
a .40 round if the barrel was worn enough, the expert testified that was not usually
the case. Further, while there were other weapons that could fire a .40 round, those
other weapons did not have the same rifling as seen on a Springfield. Additionally,
aside from the ballistic evidence, Ashley R. identified Myers as the person she had
seen earlier on the day of the shooting when she was at Poplar Square playing dice,
and in his written statement to law enforcement, Myers indicated that a girl he was
playing dice with on Poplar Square "got shot by [Appellant's] gun" that night.
Thus, there is additional evidence Appellant shot Ashley R. that night.
Accordingly, viewing the evidence in the light most favorable to the State, I would
find no error in the trial court's determination of the sufficiency of evidence to send
the matter to the jury. See Prather, 429 S.C. at 608, 840 S.E.2d at 564 ("When
ruling on a motion for a directed verdict, the trial court is concerned with the
existence or nonexistence of evidence, not its weight." (quoting Hernandez, 382
S.C. at 624, 677 S.E.2d at 605)); id. ("In an appeal from the denial of a directed
verdict motion, the appellate court must view the evidence in the light most
favorable to the State." (quoting Cope, 405 S.C. at 348, 748 S.E.2d at 210));
Phillips, 416 S.C. at 192-93, 785 S.E.2d at 452 ("[T]he trial court must submit the
case to the jury if there is 'any substantial evidence which reasonably tends to
prove the guilt of the accused, or from which his guilt may be fairly and logically
deduced.'" (quoting Mitchell, 341 S.C. at 409, 535 S.E.2d at 127)).
B. Verdict Inconsistencies
Appellant argues the jury acquitted him of the attempted murder of Myers, and if
he did not intend to shoot Myers, "it is hard to fathom how the [trial court] thought
recent case law—discussed further below—in which this court unwaveringly
applied the doctrine of transferred intent to the crime of attempted murder.
Further, at oral argument, the State left no doubt that it was, in fact, challenging the
preservation of this issue on appeal.
there was substantial circumstantial evidence [he] attempted to shoot and kill
Ashley R." The majority notes it "cannot reconcile the jury's acquittal of
[Appellant] on the attempted murder charge for the shooting of Myers with its
guilty verdict for an attempted murder of Ashley R.," maintaining the indictment
language and the State's contention it was proceeding under the doctrine of
transferred intent whereby Appellant was firing his gun with malice and struck
Ashley R. were "incongruous with such a result." In effect, Appellant and the
majority are maintaining Appellant's convictions should be reversed, in part, based
upon the inconsistencies in the verdicts. I disagree. First, Appellant has not set
forth any inconsistency in the verdict in his issues on appeal. See Rule
208(b)(1)(B), SCACR ("Ordinarily, no point will be considered which is not set
forth in the statement of the issues on appeal."). At any rate, I have no problem
reconciling the jury's verdict of acquittal on the charge in regard to Myers and the
guilty verdict in regard to Ashley R. I readily concede the jury could have returned
guilty verdicts of the attempted murder of Myers and Ashley R. based on its belief
that Appellant shot six bullets, five hit his car, and one hit Ashley R., with his
intent that a bullet strike Myers but did not. Whether a bullet he aimed at Myers
actually struck him is of no consequence, for attempted murder does not require an
injury to the person. See S.C. Code Ann. § 16-3-29 (2015) ("A person who, with
intent to kill, attempts to kill another person with malice aforethought, either
expressed or implied, commits the offense of attempted murder."). However, it is
understandable that the jury did not appreciate this nuance, especially given the
fact that (1) Myers discouraged the jury from holding Appellant responsible for
shooting him; (2) the defense introduced evidence there was a third shooter
present; (3) the State presented evidence the bullet that struck Ashley R. could
have been fired from the gun used by Appellant that night but presented no
evidence concerning the bullet that struck Myers; (4) the defense argued to the jury
that five of the six bullets shot by Appellant hit Appellants car and it would have
had to have been a "magic bullet" to have hit both Ashley R. and Myers, implying
to the jury that Appellant could not be guilty of shooting both of them; and (5) the
jury was implicitly instructed a permissible verdict included one in which
Appellant could be found guilty on either count of attempted murder without being
found guilty on the other. Notably, Appellant raised no exception to the jury
instruction in this regard, nor did he raise any argument to the trial court that the
verdicts were inconsistent. Further, while Appellant argues it is hard to fathom
how the trial court could think there was substantial circumstantial evidence he
attempted to shoot and kill Ashley R. if he did not intend to shoot Myers—as
evidenced by Appellant's acquittal of the attempted murder of Myers—what
Appellant fails to appreciate is that the trial court was not looking at the evidence
through the lens of what the jury would eventually, in fact, determine. Rather, the
trial court was looking at the evidence through the lens of what the jury could,
based upon the evidence, determine. See Phillips, 416 S.C. at 193, 785 S.E.2d at
452 ("[T]he lens through which a [trial] court considers circumstantial evidence
when ruling on a directed verdict motion is distinct from the analysis performed by
the jury." (quoting State v. Bennett, 415 S.C. 232, 236, 781 S.E.2d 352, 354
(2016)). In short, I believe any perplexities in the jury's verdict result, not from the
trial court's proper denial of Appellant's succinct directed verdict motion, but from
the manner in which the case was tried and the successful argument of trial counsel
that Appellant could not be responsible for both bullets that hit Ashley R. and
Myers.
C. Transferred Intent and Attempted Murder
Finally, I disagree with the majority's determination that, given Appellant's
acquittal of attempted murder as relates to Myers, the recent pronouncements by
our supreme court in State v. King, 422 S.C. 47, 810 S.E.2d 18 (2017), State v.
Gerald Williams, 427 S.C. 148, 829 S.E.2d 702 (2019) (Gerald Williams II), and
State v. Smith, 430 S.C. 226, 845 S.E.2d 495 (2020) (Smith II) mandate a
determination that the doctrine of transferred intent is inapplicable to the attempted
murder charge as relates to Ashley R. As noted, the fact that Appellant was
acquitted of the attempted murder of Myers is understandable based upon the
manner in which the case was tried before the jury. Whether certain arguments
and motions should have been raised by defense counsel at trial is a matter perhaps
to be addressed in a post-conviction relief action, but matters not addressed to the
trial court should not be the basis for reversal on appeal.
Undoubtedly, King provides the crime of attempted murder is a specific-intent
crime which requires proof of specific intent to commit murder. 422 S.C. at 55,
810 S.E.2d at 22. However, what remains to be resolved by our supreme court is
whether the doctrine of transferred intent applies to attempted murder. This court,
however, has twice addressed the issue, and on both occasions has answered the
question in the affirmative.
In the first case, Gerald Williams I, this court found the doctrine of transferred
intent applied to that attempted murder case, finding the statute governing the
crime did not require the specific intent to murder a specific victim; rather, the
requisite specific intent for attempted murder is the specific intent to commit
murder. State v. Gerald Williams, 422 S.C. 525, 542, 812 S.E.2d 917, 925-26 (Ct.
App. 2018), aff'd in part as modified, vacated in part, 427 S.C. 148, 829 S.E.2d
702 (2019). However, our supreme court granted certiorari and ultimately vacated
the portion of this court's opinion in Gerald Williams I concerning the application
of transferred intent in an attempted murder scenario. Gerald Williams II, 427 S.C.
at 158, 829 S.E.2d at 707. There, our supreme court noted this court had found the
doctrine of transferred intent applied to the specific-intent crime of attempted
murder; however, inasmuch as Williams failed to challenge the trial court's jury
instruction that specific intent to kill was not an element of attempted murder, but
there must be a general intent to commit serious bodily injury, that unappealed
ruling became the law of the case. Id. at 157, 829 S.E.2d 706-07. Accordingly,
Williams's attempted murder case was tried, without objection, as a general-intent
crime. Id. at 158, 829 S.E.2d 707. Because this court had erroneously "treated the
case as if it had been tried as a specific-intent crime," our supreme court vacated
that portion of our opinion dealing with the issue of transferred intent and,
pointedly, decided to "leave for another day the determination of whether the
doctrine [of transferred intent] applies to attempted murder." Id. at 157-58, 829
S.E.2d 707 (emphasis added).
In the second instance, Smith I, this court addressed numerous issues raised by
Smith following his conviction for attempted murder. In particular, Smith argued
three separate bases for reversal: (1) he was entitled to a directed verdict based on
the State's failure to prove he had the specific intent to kill the victim; (2) he was
entitled to a mistrial based upon improper statements made by the prosecution in
closing arguments; and (3) the trial court erred in instructing the jury it could infer
malice based upon the "felony murder rule." State v. Smith, 425 S.C. 20, 24, 819
S.E.2d 187, 189 (Ct. App. 2018), rev'd and remanded, 430 S.C. 226, 845 S.E.2d
495 (2020). This court affirmed Smith's conviction finding (1) a mistrial was not
warranted based upon the solicitor's improper remarks, 425 S.C. at 39, 819 S.E.2d
at 197, and (2) no error under any of the several bases argued by Smith concerning
the "felony murder rule." 425 S.C. at 39-47, 819 S.E.2d at 197-201. Further, we
disagreed with Smith's argument that "he was entitled to a directed verdict on the
attempted murder charge because the State was required to show his specific intent
to kill [the victim] and the State could not rely on the transferred intent doctrine to
make this showing." 425 S.C. at 28, 819 S.E.2d at 191. After examining, among
other things, our law on transferred intent, this court concluded "the State properly
relied on the transferred intent doctrine to show specific intent as to [the victim]"
and affirmed the denial of Smith's directed verdict motion. 425 S.C. at 32-34, 819
S.E.2d at 193-94. Our supreme court granted certiorari and issued an opinion
reversing and remanding Smith's attempted murder and possession of a weapon
during the commission of a violent crime convictions. Smith II, 430 S.C. at 230,
845 S.E.2d at 496-97. The basis for the reversal was solely on improper jury
instruction because (1) "felony attempted-murder is not a recognized crime in
South Carolina, and, therefore, any jury charge to that effect [is] error" and (2)
"trial courts may no longer give an implied malice charge when there has been
evidence presented that the defendant acted in self-defense." 430 S.C. at 230, 845
S.E.2d at 496. Although Smith also argued that this court erred in finding the
doctrine of transferred intent applied to attempted murder because it was a
specific-intent crime—which required the specific intent to kill a specific person—
our supreme court specifically declined to reach the issue, finding resolution of the
other issues dispositive and noting the State indicated its intent, on retrial, to
charge Smith with a general intent crime for the shooting of the victim in that
matter. 430 S.C. at 234 n.9, 845 S.E.2d at 499 n.9.
In sum, I find nothing in King, Gerald Williams II, and Smith II to indicate our
courts have concluded the doctrine of transferred intent is inapplicable to a charge
of attempted murder. Further, I can discern no analysis from the majority as to
why transferred intent should not apply in such a case. Inasmuch as our supreme
court chose not to address the issue, I would decline to depart from the well-
reasoned analysis as set forth by Judge Geathers in Smith I. However, as I
expressed from the outset, I do not believe we should reach this issue. Appellant
failed to raise this as a basis for his motion for directed verdict. Further, even
assuming the mention of the theory by the State and the trial court during
discussion of the motion was sufficient to encompass the theory as a basis of
Appellant's directed verdict motion, I do not believe the question of whether the
doctrine of transferred intent applied to the specific-intent crime of attempted
murder here should be addressed, as Appellant never challenged the trial court's
instruction to the jury on transferred intent. See Gerald Williams II, 427 S.C. at
157-58, 829 S.E.2d at 707 (vacating the portion of this court's decision dealing
with the issue of transferred intent and a specific-intent crime because Williams
failed to challenge the trial court's instruction to the jury that specific intent to kill
was not an element of the crime of attempted murder, but there must be a general
intent to commit serious bodily injury and, accordingly, Williams's attempted
murder case was tried, without objection, as a general-intent crime).