State v. Young, Sr.

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Aaron Young, Sr., Appellant.

Appellate Case No. 2016-000873

Appeal From Beaufort County
Thomas W. Cooper, Jr., Circuit Court Judge

Unpublished Opinion No. 2019-UP-233
Submitted December 6, 2018 – Filed June 26, 2019

AFFIRMED

Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Attorney General J. Anthony Mabry, and Senior
Assistant Deputy Attorney General Melody Jane Brown,
all of Columbia; and Solicitor Isaac McDuffie Stone, III,
of Bluffton, for Respondent.
PER CURIAM: Aaron Young, Sr. appeals his conviction of murder in the death
of Khalil S. (Victim). On appeal, Young, Sr. contends the trial court erred in
refusing to direct a verdict of acquittal for murder (1) when the State's evidence of
murder was dependent upon a combination of mutual combat, accomplice liability
and transferred intent to an innocent third party who was not engaged in mutual
combat and (2) when the State failed to establish mutual combat at the time of the
fatal shooting. We affirm.

1. We find the trial court did not err in refusing to direct a verdict of acquittal
when the State's evidence of murder was dependent upon a combination of mutual
combat, accomplice liability and transferred intent to an innocent third party not
engaged in mutual combat. In State v. Young, Jr., 424 S.C. 424, 818 S.E.2d 486
(Ct. App. 2018), cert. granted (May 9, 2019), this court determined that under such
a factual scenario, even though a non-participating innocent bystander was the
victim, mutual combat is an appropriate basis for a murder charge. See id. at 434,
818 S.E.2d at 490-91 (finding, under this scenario, the trial court did not err in
finding mutual combat a viable theory of prosecution for the murder charge); id. at
434-35, 818 S.E.2d at 491 (determining the trial court did not err in applying the
doctrine of transferred intent to Young, Jr., noting there was evidence Robinson
fired at the Youngs with intent to kill such that his intent was transferred to Victim,
and under the theory of mutual combat, all combatants are deemed equally
responsible for the natural consequences of their actions during combat and all
may be held equally guilty of murder when a combatant dies, regardless of which
combatant fired the fatal shot).

Additionally, there is no merit to Young, Sr.'s arguments that accomplice liability
is inapplicable to establish murder because he was not aiding, abetting, assisting or
conspiring with Tyrone Robinson and neither he nor his son, Aaron Young, Jr.,
were shooting at the time Victim was shot. The theory of criminal responsibility
here was not based upon any assertion that the Youngs and Robinson were
working in concert; rather, it was that Young, Sr. and Young, Jr. aided and abetted
each other in mutual combat with Robinson in their attempt to kill Robinson,
ultimately culminating in the death of Victim. See State v. Harry, 420 S.C. 290,
299, 803 S.E.2d 272, 276-77 (2017) ("Under the 'hand of one is the hand of all'
theory [of accomplice liability], one who joins with another to accomplish an
illegal purpose is liable criminally for everything done by his confederate
incidental to the execution of the common design and purpose." (alteration in
original) (quoting State v. Thompson, 374 S.C. 257, 261-62, 647 S.E.2d 702, 704-
05) (Ct. App. 2007))). Accordingly, the trial court properly denied Young, Sr.'s
motion for directed verdict of acquittal for murder that was based upon a theory of
criminal liability drawn from a combination of the legal doctrines of mutual
combat, transferred intent and accomplice liability, which established the elements
necessary to submit the murder charge to the jury. See State v. Weston, 367 S.C.
279, 292, 625 S.E.2d 641, 648 (2006) ("When reviewing a denial of a directed
verdict, [the appellate court] views the evidence and all reasonable inferences in
the light most favorable to the state."); id. at 292-93, 625 S.E.2d at 648 ("If there is
any direct evidence or any substantial circumstantial evidence reasonably tending
to prove the guilt of the accused, the [appellate court] must find the case was
properly submitted to the jury.").

2. We also find no error in the trial court's refusal to direct a verdict of acquittal
for murder on the basis of Young, Sr.'s argument that the State failed to establish
mutual combat at the time of the fatal shooting. On appeal, Young, Sr. contends
the evidence shows he and Young, Jr. were leaving the neighborhood in his truck
when Robinson shot Victim, witness Charlese Mitchell saw Young, Sr. coming
from Allen Road toward Spanish Wells five minutes after hearing the second set of
rapid shots—at which point she heard the last three shots fired by Robinson, one of
which killed Victim—and Mitchell confirmed no one was firing from Young, Sr.'s
truck at that time. Young, Sr. argues, even if this court extends the doctrine of
mutual combat to apply when a noncombatant is killed by a combatant, "the State
must still prove that two combatants were firing at each other in order to establish
mutual combat." The specific arguments Young, Sr. made in support of his
directed verdict motion were (1) that he did not aid, abet, assist or conspire with
Robinson; (2) there was no indication he ever fired a weapon; (3) there was no
evidence Victim's death was the natural consequence of the actions of shooting up
a car; (4) the elements of murder had not been satisfied; and (5) "mutual combat
has not been proven." Thus, he only generally asserted to the trial court in his
directed verdict motion that mutual combat had not been proven, but provided no
explanation for why it had not been proven. Even assuming his arguments—that
there was no evidence he ever fired a weapon or that Victim's death was the natural
consequence of his actions—supported his claim that the evidence was insufficient
to show mutual combat, he does not argue these bases on appeal. Further, he never
argued to the trial court, as he does on appeal, that the State failed to establish
mutual combat because it failed to prove Young, Sr. was engaged in mutual
combat at the time of the fatal shooting. Young, Sr. never argued to the trial court
that the State was required to show he was engaged in the exchange of gunfire with
Robinson at the exact moment Victim was shot by Robinson, or that the evidence
showed he had withdrawn from the mutual combat at the time of the fatal shot.
Accordingly, we question whether these arguments are preserved for our review.
See State v. Legg, 416 S.C. 9, 11 n.2, 785 S.E.2d 369, 370 n.2 (2016) (noting issues
and arguments are preserved for appellate review only when they are raised to and
ruled upon by the trial court).

Nonetheless, even assuming the matter is preserved, we find the State presented
sufficient evidence of mutual combat such that the trial court properly presented
the matter to the jury. There is evidence from witness Mitchell and witness Tyrone
Delaney that Robinson indicated to them the combatants had been shooting at each
other. Thereafter these witnesses heard a set of rapid gunshots and then three
different sounding gun shots, ultimately resulting in Victim's death. Although
Mitchell testified she thought approximately ten minutes passed between the
second set of rapid shots and the three different sounding shots, Delaney testified
the rapid fire shots and the set of three shots were not far apart from each other and
were closer together than five to ten minutes. Additionally, there is evidence from
Young, Sr.'s statement to the authorities that Robinson was walking and shooting
at their truck when Young, Jr. returned gunfire at Robinson. There also is evidence
in the record of Robinson being out of his truck and walking during the exchange
of gunfire between the parties when he was in the Allen Road area right before
Victim was shot. Accordingly, evidence was presented from which the jury could
conclude the Youngs and Robinson were engaged in mutual combat around the
time Victim was fatally shot. See Weston, 367 S.C. at 292, 625 S.E.2d at 648
("When reviewing a denial of a directed verdict, [the appellate court] views the
evidence and all reasonable inferences in the light most favorable to the state."); id.
at 292-93, 625 S.E.2d at 648 ("If there is any direct evidence or any substantial
circumstantial evidence reasonably tending to prove the guilt of the accused, the
[appellate court] must find the case was properly submitted to the jury."). The
parties were not required to be shooting at each other at the exact same moment a
fatal shot was delivered in order for mutual combat to apply. Further, as in Young,
Jr., there was evidence presented in Young, Sr.'s case that the Youngs and
Robinson manifested a mutual intent and willingness to fight, an antecedent
agreement to fight—shown by a pre-existing dispute and ill will between the
parties—and that the Youngs knew Robinson was armed and that Robinson knew
the Youngs were armed. See Young, Jr., 424 S.C. at 435-36, 818 S.E.2d at 491-92
(addressing Young, Jr.'s argument there was no evidence of mutual combat
because Young, Jr. and Robinson never engaged in combat "at the same time," and
finding that evidence of mutual combat was presented under such factual scenario
because the State presented direct and circumstantial evidence of each of the
necessary elements of mutual combat, i.e. mutual intent and willingness to fight, an
antecedent agreement to fight, and that the combatants be armed and know the
other party is armed). Finally, no evidence suggests Young, Sr. withdrew from the
conflict in good faith or that by word or act he made such known to Robinson. See
State v. Graham, 260 S.C. 449, 451, 196 S.E.2d 495, 495-96 (1973) ("Where a
person voluntarily participates in . . . mutual combat for purposes other than
protection, he cannot justify or excuse the killing of his adversary in the course of
such conflict on the ground of self-defense . . . unless, before the homicide is
committed, he withdraws and endeavors in good faith to decline further conflict,
and, either by word or act, makes that fact known to his adversary. . . ." (quoting 40
C.J.S. Homicide § 122, p. 9961)).

AFFIRMED.2

HUFF, SHORT, and WILLIAMS, JJ., concur.

1
See also 40 C.J.S. Homicide § 205 (2019) ("One who voluntarily participates in a
mutual combat for purposes other than protection forfeits the right of self-defense
unless, before the homicide is committed, the person withdraws and endeavors to
decline further combat and makes that fact known to his or her adversary.").
2
We decide this case without oral argument pursuant to Rule 215, SCACR.