State v. Sebastion D. Kaisk

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.

Sebastian Dominic Kaisk, Appellant.

Appellate Case No. 2022-000181

Appeal From Horry County
H. Steven DeBerry, IV, Circuit Court Judge

Unpublished Opinion No. 2024-UP-286
Submitted May 1, 2024 – Filed July 31, 2024

AFFIRMED IN PART
REVERSED AND REMANDED IN PART

Appellate Defender Lara M. Caudy, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General Melody Jane Brown,
both of Columbia, for Respondent.

PER CURIAM: This is a direct appeal in a murder case. For the following reasons,
we find no error by the trial court in refusing to charge self-defense and in allowing
the challenged statements into evidence, but we remand the case for resentencing in
light of the fact that the firearm charge at issue allows for a consecutive or concurrent
sentence.

Self-Defense

A trial court is bound to give a requested self-defense charge if "any evidence" exists
to support each element of self-defense. State v. Burkhart, 350 S.C. 252, 260, 565
S.E.2d 298, 302 (2002); State v. Wiggins, 330 S.C. 538, 545, 500 S.E.2d 489, 493
(1998) (setting forth the elements of self-defense). Whether any evidence exists is
a question of law. State v. Williams, 427 S.C. 246, 249, 830 S.E.2d 904, 906 (2019).

Self-defense is available only when the accused is without fault in bringing on the
difficulty. State v. Wigington, 375 S.C. 25, 31–32, 649 S.E.2d 185, 188
(Ct. App. 2007). Here, Appellant admitted he was armed with a deadly weapon
when the encounter took place between him and the victim. We have viewed the
video of this encounter multiple times. The footage shows Appellant initiating a
physical confrontation with the victim and Appellant advancing on the victim not
once, but twice.

It is true that an aggressor's right to self-defense can be restored if the aggressor
"withdraws in good faith from the conflict" and announces his intent to withdraw
"by word or act." State v. Bryant, 336 S.C. 340, 345, 520 S.E.2d 319, 322 (1999)
(citations omitted). Here, however, there is no evidence to suggest that Appellant
attempted to withdraw from his initial assault against the victim such that the
availability of a self-defense instruction would have been restored. On top of that,
and as noted above, the video of this encounter shows Appellant advancing on the
victim multiple times. Self-defense also requires some evidence that the defendant
had no other means of avoiding danger than to act as he did. Id. The video reveals
ample opportunity for Appellant to flee the situation.

We have also carefully considered the recorded statement Appellant made to the
police after his arrest. Appellant stated that the victim tried to throw him to the
ground and get on top of him, that he tried to protect himself, that he may have
accidently fired his weapon, that "it wasn't even supposed to go that far," and that
the shooting "really was self-defense." Even if we take Appellant's statement to
mean that he acted in fear for his life or in fear of serious bodily injury, we cannot
say that the video evidence shows he was "actually" in such danger or that "a
reasonable person of ordinary firmness would have entertained the same belief."
State v. Dickey, 394 S.C. 491, 499, 501–02, 716 S.E.2d 97, 101, 102 (2011).
Appellant's Statement

We find no error in the trial court's reading of State v. Liverman, 386 S.C. 223, 687
S.E.2d 70 (Ct. App. 2009) and the court's denial of a request to redact Appellant's
comment regarding "his official G's" from the video Appellant recorded on his cell
phone. The video appeared to show the victim pleading for his life and was relevant
evidence supporting the State's case. There was no testimony explaining the
challenged portion of Appellant's statement as any sort of reference to gang activity.
In fact, the State never referenced gang activity in any part of the case and there was
no discussion of what an "official G" was or could be inferred to mean.

We do not know how the trial court would have viewed the "probative versus
prejudicial" evaluation that Rule 403, SCRE, requires. The court did not perform
this balancing on the record. Still, this does not warrant reversal. First, the trial
court was not asked to conduct the Rule 403 balancing on the record. Appellant
argued the language in question was an obvious reference to gang affiliation, more
prejudicial than probative, and cited Liverman. After the trial court ruled Liverman
was distinguishable, Appellant asked for a limiting instruction and the court granted
the request. Second, and as already noted, there was no testimony explaining the
challenged portion of Appellant's statement as any sort of reference to gang activity.
Even if we assumed it was error to not redact these words, the error would plainly
be harmless. See State v. Pagan, 369 S.C. 201, 212, 631 S.E.2d 262, 267 (2006)
("Generally, appellate courts will not set aside convictions due to insubstantial errors
not affecting the result.").

Consecutive Sentences
When a defendant is found guilty of possessing a deadly weapon in furtherance of a
violent crime, the trial court must impose a five-year sentence in addition to any
sentence rendered for the principal crime. S.C. Code Ann. § 16-23-490(A) (2015).
This sentence, however, may be imposed to run either consecutively or concurrently.
S.C. Code Ann. § 16-23-490(B) (2015). The parties here do not dispute that the trial
court was not aware both types of sentences were allowed.
Our supreme court recently modified the rule concerning unpreserved sentencing
errors and held:

[W]hen a trial court imposes what the State concedes is an illegal
sentence, the appellate court may correct that sentence on direct appeal
or remand the issue to the trial court even if the defendant did not object
to the sentence at trial and even if there is no real threat of incarceration
beyond the limits of a legal sentence.

State v. Plumer, 439 S.C. 346, 351, 887 S.E.2d 134, 137 (2023) (emphasis added).
It was legal error for the trial court to rely on an erroneous interpretation of section
16-23-490. See, e.g., State v. Hawes, 411 S.C. 188, 191, 767 S.E.2d 707, 708 (2015)
(finding legal error when the trial court relied on a previous version of a statute and
believed its discretion was limited). Where, as here, the statute grants discretion to
the trial judge, the judge "must exercise [that] discretion based on the evidence
presented . . . ." Id. Appellant's sentence on the firearm charge is therefore remanded
to the trial court for consideration consistent with this opinion.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART. 1

GEATHERS, HEWITT, and VINSON, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.