State v. Young

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Aaron Scott Young Jr., Petitioner.
Appellate Case No. 2018-001861
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Beaufort County
Thomas W. Cooper Jr., Circuit Court Judge
Opinion No. 27942
Heard November 20, 2019 – Filed February 5, 2020
AFFIRMED
F. Elliotte Quinn IV, of The Steinberg Law Firm, LLP, of
Summerville, and Jennifer K. Dunlap, of Parker Poe
Adams & Bernstein, LLP, of Charleston, for Petitioner.
Attorney General Alan Wilson, Deputy Attorney General
Donald J. Zelenka, and Senior Assistant Deputy Attorney
General Melody J. Brown, all of Columbia; and Solicitor
Isaac McDuffie Stone III, of Bluffton, for Respondent.
ACTING CHIEF JUSTICE KITTREDGE: In the course of a gun battle
between mutual combatants, a bullet fired at Petitioner Aaron Young Jr. (Young
Jr.) missed its intended mark and killed an unintended victim; all involved in the
gun battle, including Young Jr., were charged with murder. The heart of this case
deals with the reach of the doctrines of mutual combat and transferred intent.
Young Jr. and his father Aaron Young Sr. (Young Sr.) willingly engaged a rival,
Tyrone Robinson, in a cat-and-mouse gun battle in a residential neighborhood.
The gun battle came to a tragic conclusion when Robinson shot and killed an
unintended victim, an eight-year-old child who was playing in the area. The State
charged all three combatants with the murder of the victim. Robinson's murder
charge stemmed from a straightforward application of the doctrine of transferred
intent. The Youngs' murder charges stemmed from an application of the doctrine
of mutual combat,1 under which each combatant is criminally responsible for a
death caused by any of the other combatants, regardless of whether he fought with
or against the killer-combatant.
Today, we hold mutual combat can properly serve as the basis for a murder charge
for the death of a non-combatant under the "hand of one is the hand of all" theory
of accomplice liability. When two or more individuals engage in combat via a
reckless shootout, they collectively trigger an escalating chain reaction that creates
a high risk to any human life falling within the field of fire. In that type of
gunfight, all individuals are willing to use lethal force and display a depraved
indifference to human life. More importantly, an innocent bystander would not be
shot but for the willingness of all combatants to turn an otherwise peaceful
environment, often a residential or commercial setting, into a battlefield. In a real
sense, each combatant aids and encourages all of the other combatants—whether
friend or foe—to create the lethal crossfire. We therefore find the law sanctions
holding Young Jr. responsible for the actions of Robinson in causing the victim's
death. Both men were equally culpable. As a result, we affirm Young Jr.'s murder
conviction and sentence.2
1
To be clear, the Youngs were charged with murder, not mutual combat. Of
course, mutual combat is not a stand-alone crime in South Carolina. Rather, it is a
theory of criminal liability that underlies a recognized crime such as murder or
manslaughter. As we will explain later, the mutual combat doctrine is most
commonly used to negate self-defense, but may also be used as a basis to sustain a
murder or manslaughter conviction.
2
Young Jr. also appeals his conviction for the attempted murder of Robinson. At
one point in the combat, Young Jr. had his gun pointed at Robinson. When Young
Jr. pulled the trigger, the gun jammed and did not fire. This action resulted in a
I.
Prior to the date of the gun battle, Robinson and Young Jr. had a history of violent
confrontations with one another. On the day in question, Robinson drove to the
Youngs' house and began arguing with Young Jr. outside, eventually pulling out a
.38 caliber revolver and moving toward Young Jr. Young Sr. was present and
attempted to take Robinson's gun away. While the two struggled for possession of
the weapon, the revolver discharged. Young Sr. backed away, but Robinson fired
once or twice more at the ground by Young Sr.'s feet. Robinson then returned to
his vehicle and sped away.
This confrontation began a series of armed exchanges between the Youngs and
Robinson across multiple residential neighborhoods over the next hour, wherein
one side would catch up with the other, shoot, and flee. During the penultimate
exchange, the Youngs were unable to locate Robinson but saw his unoccupied
vehicle, so Young Jr. "swiss cheese[d] that car"—shooting at it over twenty
times—despite the fact that he (Young Jr.) had just seen a group of children
playing on a trampoline a short distance away. As the Youngs fled again,
Robinson emerged from hiding and shot at their car three times, missing the
Youngs, but tragically hitting the victim, who had been playing on the trampoline.
Following their arrests, all three men were charged with the victim's murder.
Prior to the start of trial, Young Jr. moved to dismiss the murder indictment,
arguing the charge was based on the theory of mutual combat, which was not a
stand-alone theory of criminal responsibility in South Carolina, but instead a
limitation on self-defense.3 The State acknowledged that, prior to charging Young
Jr., the doctrine of mutual combat had not been used to impose liability for the
death of a non-combatant. See, e.g., State v. Brown, 108 S.C. 490, 499, 95 S.E. 61,
63 (1918) ("[E]very one [sic] is presumed to know the consequences of his act, and
if one voluntarily enters a mutual combat where deadly weapons are used, knowing
that they are being used, and death results to one of the participating parties, every
charge of attempted murder. We affirm the conviction for attempted murder
pursuant to Rule 220(b), SCACR, as any argument that Young Jr. did not attempt
to kill Robinson is manifestly without merit.
3
See, e.g., Jackson v. State, 355 S.C. 568, 571, 586 S.E.2d 562, 563 (2003)
("Mutual combat bars a claim of self-defense because it negates the element of 'not
being at fault.'" (citing State v. Graham, 260 S.C. 449, 450, 196 S.E.2d 495, 495–
96 (1973))).
one [sic] engaged in such combat is equally guilty, regardless of whether he used a
deadly weapon or not. And regardless of whether he was on one side or the other
makes no difference, and where all are participating in the mutual combat, all are
equally responsible for the natural consequences." (emphasis added)). The State
argued it was a reasonable extension of the mutual combat doctrine to impose
liability on all combatants for the death of an innocent bystander as well.
Importantly, Young Jr. conceded the theory of mutual combat would apply to hold
Young Jr. responsible for murder if, for example, Robinson had shot and killed
Young Sr. instead of the victim because Young Sr. was a co-combatant. However,
because the victim was not a combatant, Young Jr. argued he could not be found
criminally responsible for the victim's murder.
The trial court denied Young Jr.'s motion to dismiss the indictment, noting that in
mutual combat situations all participating parties were responsible for their fellow
combatants' actions resulting in injuries to other participants in the combat.
Although the experienced trial judge recognized the facts of this case represented
an extension of the existing case law, he found Young Jr. could be held liable for
the murder of the victim based on the theories of mutual combat and transferred
intent, agreeing with the State's argument that
it would be very difficult to understand how if multiple people are
shooting at each other and someone in the group is killed and
everyone's responsible how they would also not be responsible if an
innocent third party was shot.
Comparing this mutual combat scenario with the "hand of one is the hand of all"
doctrine, the trial judge concluded, "[I]t is not the identity of the victim that
controls, it is the intent, the state of mind which led to the mutual combat in the
first place and the consequences that followed from that."
Ultimately, the jury convicted Young Jr. of murder, and the trial court sentenced
him to thirty years' imprisonment. Young Jr. appealed, and the court of appeals
affirmed. State v. Young, 424 S.C. 424, 818 S.E.2d 486 (Ct. App. 2018). We
granted Young Jr.'s petition for a writ of certiorari to review the decision of the
court of appeals.
II.
Young Jr. argues mutual combat cannot be used as the grounds on which to base
criminal responsibility for murder, but instead may only be used as a limitation on
self-defense. We disagree.
A.
"The doctrine of mutual combat has existed in South Carolina since at least 1843,
but has fallen out of common use in recent years." State v. Taylor, 356 S.C. 227,
231, 589 S.E.2d 1, 3 (2003). To constitute mutual combat, there must be a mutual
intent and willingness to fight, "manifested by the acts and conduct of the parties
and the circumstances attending and leading up to the combat." Graham, 260 S.C.
at 450, 196 S.E.2d at 495; see also Taylor, 356 S.C. at 235, 589 S.E.2d at 5 ("The
mutual combat doctrine is triggered when both parties contribute to the resulting
fight."); Brown, 108 S.C. at 499, 95 S.E. at 63 ("[T]o constitute mutual combat, it
is not necessary that there should be a positive agreement between the participating
parties to enter the combat; it is sufficient if they [willfully] enter into the conflict,
upon the impulse of the moment."). The State is required to prove the rival
combatants were armed for the mutual combat with deadly weapons and each
combatant knew the others were armed. Taylor, 356 S.C. at 233–34, 589 S.E.2d at
4–5. Mutual combat may be the basis of either a murder or manslaughter
conviction depending on the combatant's state of mind at the time of the killing,
i.e., whether the combatant acted with malice aforethought. Id. at 232, 589 S.E.2d
at 3–4 (quoting State v. Andrews, 73 S.C. 257, 260, 53 S.E. 423, 424 (1906)).
The majority of jurisdictions impose criminal responsibility on all combatants for
the consequences of mutual combat. In line with the majority approach, South
Carolina law has long recognized that criminal liability may be imposed on all
combatants for the death of one of the participating parties because all are
presumed to know and intend the consequences that naturally flow from their
unlawful acts. Brown, 108 S.C. at 499–500, 95 S.E. at 63. In South Carolina and
many other jurisdictions, the criminal liability stemming from mutual combat does
not depend on which side(s) the combatant or the deceased fought. Id. Thus, for
example, a combatant may properly be found guilty of murder for the death of a
friendly co-combatant at the hands of a rival combatant. See id. In the eyes of the
law, it does not matter that the combatant did not intend any harm to the friendly
co-combatant. People v. Sanchez, 29 P.3d 209, 223 (Cal. 2001) (Kennard, J.,
concurring); see also Brown, 108 S.C. at 491–500, 95 S.E. at 61–63 (upholding the
manslaughter convictions of three non-striking employees/combatants who
participated in a fight between strikers and non-strikers that resulted in the death of
a striker at the (accidental) hands of a fellow striker). Rather, the death of the
friendly co-combatant was a harm that both in kind and degree was within the
foreseeable risks the participants expected and intended to result from the mutual
combat. See Sanchez, 29 P.3d at 223 (Kennard, J., concurring); Roy v. United
States, 871 A.2d 498, 507–09 & n.10 (D.C. 2005) (collecting cases);
Commonwealth v. Santiago, 681 N.E.2d 1205, 1215 (Mass. 1997) (noting death is
"a natural result of a shootout").
However, the existence of mutual combat is not wholly dispositive of criminal
liability. A combatant may withdraw from mutual combat if he "endeavors in
good faith to decline further conflict, and, either by word or act, makes that fact
known to his adversary." Graham, 260 S.C. at 451, 196 S.E.2d at 496 (citation
omitted). Should a combatant satisfy the requirements to withdraw from mutual
combat, he may no longer be held liable for the actions of his former co-
combatants. Cf. id. (explaining that although a mutual combatant ordinarily may
not validly claim self-defense, if he withdraws from the mutual combat, his right to
self-defense is restored); State v. Hendrix, 270 S.C. 653, 659 n.3, 244 S.E.2d 503,
506 n.3 (citing 40 C.J.S. Homicide §§ 121, 133 (1944)) (explaining that
withdrawing from the conflict restores a defendant's right to self-defense).
B.
No appellate court in South Carolina, however, has addressed the import of the
mutual combat doctrine on the death of an innocent bystander. Jurisdictions that
have considered a factual scenario analogous to the present case are nearly
unanimous in finding mutual combat may serve as the basis for criminal liability
for all combatants charged with murder or manslaughter, regardless of who fired
the fatal shot. A number of jurisdictions reached this result under an aiding and
abetting theory similar to South Carolina's "hand of one is the hand of all" doctrine.
See, e.g., State v. Spates, 779 N.W.2d 770, 777–79 (Iowa 2010) (collecting cases
and adopting this approach).
For example, in Alston v. State, the Court of Appeals of Maryland affirmed a
second-degree murder conviction of a participant in a gun battle, despite proof that
the innocent bystander was shot and killed by a member of the rival group. 662
A.2d 247, 247–48 (Md. 1995), aff'g 643 A.2d 468 (Md. Ct. Spec. App. 1994). In
rejecting the defendant's argument that he did not aid and abet his rival in killing
the bystander, the court explained the "argument rests heavily on [the defendant]
disassociating himself from the [rival group's actions] and from the particular shot
that killed [the bystander]. The relevant frame of reference, however, is [the
defendant's] participation in the gun battle." Id. at 252 (emphasis added). The
court found significant the fact that both groups "were armed and prepared to do
battle whenever and wherever their forces encountered one another" and "opened
fire, returned fire, and continued to fire in mindless disregard of the lives of the
people on the street and in the surrounding houses." Id. Likewise, the court
determined the firefight demonstrated each participant was willing to use lethal
force and exhibited the malice necessary to support a second-degree murder
conviction. Id. The court concluded that "all of the participants, driven by an
unwritten code of macho honor, tacitly agreed that there would be mutual
combat. . . . Though the groups were adversaries at one level of analysis, at the
level of analysis relevant to depraved[-]heart murder, each group aided, abetted,
and encouraged the other to engage in urban warfare." Id. at 254 (emphasis
added).
Similarly, in People v. Russell, the Court of Appeals of New York upheld a
defendant's second-degree murder conviction even though the State was unable to
establish which of the three combatants fired the shot that fatally wounded an
innocent bystander. 693 N.E.2d 193, 194 (N.Y. 1998). The court explained the
State "was not required to prove which defendant fired the fatal shot when the
evidence was sufficient to establish that each defendant acted with the mental
culpability required for the commission of depraved[-]indifference murder, and
each defendant 'intentionally aided' the defendant who fired the fatal shot." Id. at
195 (emphasis added). The court rejected the co-combatants' arguments that, as
adversaries in a gun battle, they did not "share[] the 'community of purpose'
necessary for accomplice liability," explaining that each of their respective actions
made the gun battle possible, as there would not have been a firefight at all had
they not been shooting at one another. Id. at 195–96 (discussing People v. Abbott,
445 N.Y.S.2d 344, 347 (App. Div. 1981),4 and citing, inter alia, People v. Fabian,
586 N.Y.S.2d 468, 471 (Sup. Ct. 1992) ("Although [the] defendants were trying to
injure, if not kill each other, at the very same time they acted in concert to create an
explosive condition which resulted inevitably in [the victims' death and
injuries].")). The court therefore held the evidence was sufficient for the jury to
find all three co-combatants acted with the mental culpability required for
depraved-indifference murder, and the three men "intentionally aided and
encouraged each other to create the lethal crossfire that caused the death of [the
victim]." Id. at 196 (emphasis added).
4
In Abbott, the court held a defendant/drag racer equally complicit in the death of a
bystander killed by the defendant's rival racer because the defendant's "conduct
made the race possible." 445 N.Y.S.2d at 347. In particular, the court found that
the defendant "accepted [his rival racer's] challenge and shared in the venture.
Without [the defendant's] aid[, the rival racer] could not have engaged in the high-
speed race which culminated in the tragedy. The accident was 'the culmination of
a continuum of events' in which both [racers] participated." Id. (citation omitted).
We find the aiding and abetting approach outlined in Alston and Russell dovetails
with our "hand of one is the hand of all" doctrine. See, e.g., State v. Harry, 420
S.C. 290, 299, 803 S.E.2d 272, 276–77 (2017) (explaining that under the "hand of
one is the hand of all" doctrine, one who joins with another to accomplish an
illegal purpose—whether by encouraging or aiding and abetting—is guilty as a
principal). We agree with those jurisdictions that have concluded co-combatants
who aid and incite one another to engage in the fight that leads to the death or
injury of an innocent bystander are equally criminally liable.5 As a result, we
extend our mutual combat jurisprudence to permit finding all mutual combatants
criminally liable in situations where an innocent bystander is killed by one of the
combatants.6 Cf. Roy, 871 A.2d at 507 ("We think it important to note that while
proximate causation as a theory of second-degree murder liability has been
recognized in our case law for some time, the factual scenario of a 'gun battle' on
city streets, as in this case, is relatively new. While urban gun battles years ago
involved revolvers or clipped pistols of limited fire power, they have now escalated
5
See, e.g., Reyes v. State, 783 So. 2d 1129, 1132–33 (Fla. Dist. Ct. App. 2001);
March v. State, 458 So. 2d 308, 309 (Fla. Dist. Ct. App. 1984) (per curiam); Spates,
779 N.W.2d at 779–80 (discussing with approval State v. Brown, 589 N.W.2d 69,
74–75 (Iowa Ct. App. 1998), overruled on other grounds by State v. Reeves, 636
N.W.2d 22 (Iowa 2001)); State v. Garza, 916 P.2d 9, 15 (Kan. 1996); Alston, 662
A.2d at 252–54; Santiago, 681 N.E.2d at 1215; Russell, 693 N.E.2d at 195–96.
6
Other jurisdictions have reached a similar result by finding the mutual combat
was the proximate cause of the innocent bystander's death, rather than by applying
an aiding and abetting theory. See Spates, 779 N.W.2d at 777 (collecting cases).
In doing so, the courts held the defendant criminally responsible as a principal on
the basis of his own conduct. See, e.g., Sanchez, 29 P.3d at 217–20 (collecting
cases); id. at 223 (Kennard, J., concurring); Roy, 871 A.2d at 507–08 & n.10
(collecting cases); Brown, 589 N.W.2d at 74–75; Phillips v. Commonwealth, 17
S.W.3d 870, 875 (Ky. 2000); cf. Commonwealth v. Gaynor, 648 A.2d 295, 297,
299 (Pa. 1994) (reaching the same result under a state statute dealing with mutual
combat and transferred intent). We view the proximate cause theory of liability
and the "hand of one is the hand of all" theory of liability as overlapping theories,
tightly intertwined with one another. See, e.g., Santiago, 681 N.E.2d at 1215
(noting that a defendant may be the proximate cause of a bystander's death because
death is the natural result of a shootout, and because "the shootout could not occur
without participation from both sides"); People v. Daniels, 431 N.W.2d 846, 851
(Mich. Ct. App. 1988).
to the use of automatic and semiautomatic weapons. The results are pocket wars
with no rules of engagement resulting in a highly increased risk to noncombatants.
It is this increased risk to innocent bystanders which justifies the application of
proximate cause liability to those participants who willfully choose to engage in
these battles.").
C.
As applied here, the Youngs and Robinson were clearly engaged in mutual
combat.7 In a real sense, although they were adversaries, the Youngs and
Robinson jointly incited one another to continue the cat-and-mouse gun battle that
resulted in the victim's death. While Robinson may have been the man who pulled
the trigger and formally killed the victim, he would not have fired that shot had it
not been for the "aid" and "encouragement" of the Youngs. To myopically narrow
the focus only to Robinson's actions misses the point.
We therefore find the deadly homicidal force here was not the single bullet that
struck and killed the victim, but rather a collective fusillade that spanned several
neighborhoods over the course of one hour. See Alston, 643 A.2d at 469; see also
Roy, 871 A.2d at 507 n.10 ("[C]ourts have determined that the combined hail of
bullets that result from such a battle are jointly responsible for the fatal injury, such
that a determination of which defendant's bullet 'actually' caused the death is
unnecessary."). The Youngs and Robinson voluntarily and jointly created a
battlefield that encompassed any number of innocent and unwilling bystanders—
including young children like the victim. See Russell, 693 N.E.2d at 195. Given
the Youngs and Robinson's collective actions in carrying out the gun battle, it is
reasonable for the law of mutual combat to serve as the foundation of a murder
charge—to hold each one responsible for both his own actions and the actions of
the others. Id. Because we find the deadly force used in this case was the result of
collective action, we hold the responsibility for the victim's death was collective as
well. Accordingly, we hold Young Jr. was properly charged with the victim's
murder under the theory of mutual combat.
7
Young Jr. moved for a directed verdict on the murder charge by claiming there
was no evidence he and Robinson were engaged in mutual combat. The trial court
denied the motion for a directed verdict, finding the evidence showed the shootout
was the culmination of a running argument between the Youngs and Robinson.
We agree. Any argument that there was no evidence of mutual combat is
manifestly specious, as the evidence of mutual combat was overwhelming.
III.
Today, we extend our jurisprudence and hold that each participant who willingly
engages in mutual combat may be held accountable for the death or injury of an
innocent bystander resulting from that confrontation. As each combatant aids and
encourages the others to fire and continue firing the hail of bullets that results in a
victim's death or injury, each may be found guilty under the "hand of one is the
hand of all" theory of accomplice liability. Accordingly, we affirm the court of
appeals' decision upholding Young Jr.'s convictions and sentences.8
8
As a final matter, at trial, Young Jr. asked the trial court to instruct the jury on the
end of mutual combat, claiming that by fleeing after "swiss cheesing" Robinson's
car, he had ended the fight. The trial court refused to give such an instruction,
stating that the Youngs' flight at that point was more akin to a temporary retreat
than an unequivocal cessation of the gun battle, which the law requires. Pointing
to the fact that the fight spanned several neighborhoods, the trial court found it
"unlikely that the shooting of the car and then leaving is a signal that [the Youngs]
have chosen at that point in time to fold their tents and move away and that the
battle is over and truce has been declared." See Graham, 260 S.C. at 451, 196
S.E.2d at 496 (explaining that in order to withdraw from mutual combat, the
defendant must—before the homicide is committed—"withdraw[] and endeavor[]
in good faith to decline further conflict, and, either by word or act, make[] that fact
known to his adversary" (emphasis added) (citation omitted)). In support of the
trial court's observation, we note that Young Jr. admitted to police that after
Robinson fired the shots at the Youngs' fleeing truck following the "swiss-
cheesing" of Robinson's car, he yelled at his father to turn the truck around and
return to the gun battle. There is no indication that the Youngs' retreat after "swiss-
cheesing" Robinson's car was any different than any of their previous—and, more
importantly, temporary—retreats. Significantly, Young Jr. made no attempt to
communicate to Robinson that this retreat was a complete withdrawal from the
ongoing gun battle.
We nevertheless need not reach the challenge of Young Jr. that the trial court's
failure to instruct the jury on the end of mutual combat was reversible error. This
is because of Young Jr.'s concession at trial that he would have been guilty of
murder via the mutual combat doctrine had Robinson shot and killed Young Sr.
instead of the victim. In so conceding, Young Jr. tacitly admitted the mutual
combat was ongoing at the time of the victim's death. That concession removed
any basis on which to instruct the jury on the end of mutual combat.
AFFIRMED.
JAMES, FEW, JJ., and Acting Justice Aphrodite K. Konduros, concur.
HEARN, J., dissenting in a separate opinion.
JUSTICE HEARN: I respectfully dissent. While I agree with the majority to
affirm the conviction for attempted murder, I disagree with extending the doctrine
of mutual combat to hold Aaron Young Jr. responsible for the murder of the
bystander victim. Specifically, I find the lapse of time between when the gun shots
were fired at Robinson's car and when the fatal shots occurred prevents the extension
of the mutual combat doctrine under our "hand of one is the hand of all" theory.
Moreover, even if the doctrine applied here, the trial court erred in failing to charge
the jury on the end of mutual combat.
In extending the doctrine of mutual combat, the majority relies on several
cases from other jurisdictions, all of which are factually and materially distinct from
this case. Every case cited by the majority involves individuals or groups on
opposite sides who engaged in a gun battle where both sides contemporaneously
opened fire on one another. There, the gunfire was characterized as the "combined
hail of bullets," "shower of bullets," "lethal crossfire," and "gang-style gun play" in
which both parties participated and induced the other to engage in a battle that
proximately caused the death of an innocent bystander. Here, the majority portrays
the events of this case as a continuous, ongoing gun battle in which the parties'
collective action resulted in a bystander's death. However, unlike the cases on which
the majority relies, there is no evidence to support that a simultaneous exchange of
bullets occurred and caused the victim's death. Rather, a considerable amount of
time passed between Young Jr.'s attack on Robinson's empty car and Robinson's
retaliatory shooting which killed the victim. Indeed, a neighbor testified at trial that
approximately ten minutes elapsed between these two events. Even the trial court's
reasoning for charging mutual combat contemplated only the scenario where
"multiple people are shooting at each other." Moreover, at oral argument, counsel
for both parties acknowledged that a concrete lapse of time in which the "warfare"
had subsided would prevent the State from charging a defendant with murder under
a mutual combat theory. While it may be sound public policy to extend the doctrine
under circumstances analogous to those in the cases cited, and I would be inclined
to do so in the proper case, I disagree with the application of the doctrine under the
facts presented here.
Even if the mutual combat charge was appropriate, the trial court erred in
failing to instruct the jury on the end of mutual combat. The majority declines to
reach this issue because it believes Young Jr. conceded at trial that he would have
been guilty of murder through mutual combat if Robinson had shot and killed Young
Sr. instead of the victim. However, in my view, this interpretation misstates the
record. To gain a better understanding of the mutual combat doctrine and its
application in the bystander context, the trial judge posed a hypothetical to Young
Jr., stating "if the Youngs and Mr. Robinson are out there shooting at each other,
that if either one of them got shot and killed, that everybody would be guilty under
mutual combat." Young Jr. agreed, stating "there's no question but the fact that if
Aaron Sr. had gotten shot, then everybody would be responsible, but that's not what
happened." I understand his response to the judge's hypothetical to be in the context
expressed in State v. Brown, providing for criminal liability through mutual combat
when another combatant is killed, and in the cases cited by the majority, where both
parties are shooting at each other simultaneously and a bystander is killed. I do not
believe there was any concession under these facts, where the Youngs clearly were
not engaged in a shootout with Robinson at the time he fired the fatal shots.
In addition to relying on defense counsel's ostensible concession, the majority
seems to imply that the charge was wholly unnecessary as a matter of law because
there was no indication of withdrawal. As the majority notes, the trial court believed
the facts evidenced a "temporary retreat" rather than a withdrawal ending the
combat. While this may have been the case, and the jury could have agreed, the fact
remains that if there was any evidence to support withdrawal, the trial judge should
have given the charge. State v. Smith, 391 S.C. 408, 412, 706 S.E.2d 12, 14 (2011)
("If there is any evidence to warrant a jury instruction, a trial court must, upon
request, give the instruction."); State v. Shuler, 344 S.C. 604, 632, 545 S.E.2d 805,
819 (2001) ("If there is any evidence to support a charge, the trial judge should grant
the request."); State v. Burriss, 334 S.C. 256, 262, 513 S.E.2d 104, 108 (1999) ("It
is well-settled the law to be charged is determined from the evidence presented at
trial, and if any evidence exists to support a charge, it should be given. The trial court
commits reversible error if it fails to give a requested charge on an issue raised by
the evidence."). At a minimum, the Youngs' conduct of driving away constituted
some evidence of their withdrawal such that a charge on this issue was warranted.
Therefore, I would affirm the conviction for attempted murder and reverse on the
murder conviction and jury charge issues.