State v. Ty'shun M. Bessellieu

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.

Ty'shun Mario Bessellieu, Appellant.

Appellate Case No. 2018-000622

Appeal From Georgetown County
Steven H. John, Circuit Court Judge

Unpublished Opinion No. 2021-UP-417
Submitted October 1, 2021 – Filed November 17, 2021

AFFIRMED

Appellate Defender David Alexander, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., both of Columbia, and Solicitor Jimmy A.
Richardson, II, of Conway, all for Respondent.

PER CURIAM: After firing multiple gunshots at four women gathered on a porch
and injuring one, Ty'Shun Bessellieu was convicted of four counts of attempted
murder. On appeal, he asserts the trial court erred in 1) charging the jury on the
doctrine of transferred intent and 2) failing to direct a verdict of not guilty. We
affirm.

1. The trial court erred by charging the jury on the doctrine of transferred intent.
See State v. Geter, Op. No. 5851 (S.C. Ct. App. filed Aug. 18, 2021) (Howard Adv.
Sh. No. 28 at 82, 91) (holding doctrine of transferred intent may not be applied in
prosecution for attempted murder, stating: "[s]o long as attempted murder is a
specific intent crime, transferring the intent to kill does not satisfy the necessary
mens rea to convict a defendant of the attempted murder of an unintended victim");
State v. Williams, Op. No. 5835 (S.C. Ct. App. filed July 14, 2021) (Shearouse Adv.
Sh. No. 24 at 21, 31-32) (holding doctrine of transferred intent may not be charged
when the defendant is acquitted of attempting to kill the intended victim); see also
State v. Williams, 427 S.C. 148, 158, 829 S.E.2d 702, 707 (2019) (vacating court of
appeals opinion holding transferred intent is applicable in attempted murder
prosecution); State v. King, 422 S.C. 47, 56, 810 S.E.2d 18, 23 (2017) (holding
attempted murder is a specific intent crime and "it is logically impossible to attempt
an unintended result" (quoting 22 C.J.S. Criminal Law: Substantive Principles §
156, at 221–22 (2016))); see also State v. Belcher, 385 S.C. 597, 612, 685 S.E.2d
802, 810 (2009) (holding new rule of law regarding a jury charge would apply to
"all cases which are pending on direct review or not yet final where the issue is
preserved"), overruled on other grounds by State v. Burdette, 427 S.C. 490, 832
S.E.2d 575 (2019).

However, in light of the jury charge as a whole, the erroneous transferred intent
charge does not warrant reversal of Bessellieu's attempted murder convictions. See
State v. Adkins, 353 S.C. 312, 318, 577 S.E.2d 460, 463–64 (Ct. App. 2003) ("In
reviewing jury charges for error, [an appellate court] must consider the court's jury
charge as a whole in light of the evidence and issues presented at trial" and, "[i]f, as
a whole, the charges are reasonably free from error, isolated portions which might
be misleading do not constitute reversible error."). First, the trial court gave clear
and correct guidance as to what constitutes specific intent, attempt, and express
malice, and it instructed the jury it would need to find Bessellieu guilty beyond a
reasonable doubt as to each victim he was accused of attempting to kill. Bessellieu
asserts charging transferred intent reduced the State's burden of proving specific
intent to kill with express malice to general criminal intent with a wanton disregard
for human life; however, this argument fails because the trial court did not charge
the definitions of implied malice or general intent as to attempted murder. See State
v. Taylor, Op. No. 5853 (S.C. Ct. App. filed Sept. 1, 2021) (Howard Adv. Sh. No.
30 at 81, 84–86) (discussing requisite levels of intent and malice for crime of
attempted murder and finding that despite erroneous language in jury charge on
general malice, the overall jury charge properly instructed the jury on the requisite
level of intent needed to sustain an attempted murder conviction, therefore, the
conviction should be affirmed).

Further, the evidence overwhelmingly supports convictions for four counts of
attempted murder and any error in charging transferred intent was harmless. See
State v. Brooks, 428 S.C. 618, 627–28, 837 S.E.2d 236, 241 (Ct. App. 2019) (stating
erroneous jury charge may be harmless if it does not contribute to the verdict beyond
a reasonable doubt). While the evidence showed only one of the women in the group
had insulted Bessellieu earlier that evening, there was also evidence Bessellieu
intended to kill each of the four women. For example, the evidence indicated
Bessellieu knew that the same group of women whom he encountered earlier in the
evening were gathered on the porch of one of the victims' homes and Bessellieu
pointed his gun directly at the group and fired at least four gunshots. See Williams,
427 S.C. at 158 n.9, 829 S.E.2d at 707 n.9 (finding that in a case of mistaken identity,
it was unnecessary to use the doctrine of transferred intent to uphold a conviction of
attempted murder because evidence was presented indicating Williams intended to
kill "the figure in the doorway" and "[i]t matters not that [Williams] may have been
unaware it was [X] in the door, rather than [Y]" even though Y was the person
Williams had motive to kill); cf. Geter, Op. No. 5851 at 83, 91 (finding charge of
transferred intent was prejudicial in attempted murder prosecution when evidence
demonstrated Geter was acting in self-defense; the person Geter was charged with
attempting to murder was hurt because he intervened in a fight between Geter and
another man; and the victim was accidentally stabbed by Geter, who intended to stab
the other man). Accordingly, we affirm Bessellieu's attempted murder convictions.
See Adkins, 353 S.C. at 319, 577 S.E.2d at 464 (stating to warrant reversal for an
incorrect jury charge, the charge must be both erroneous and prejudicial to
defendant).

2. The trial court did not err in denying Bessellieu's motion for a directed verdict as
to the four counts of attempted murder. We agree with the trial court that when
viewing the evidence in the light most favorable to the State, the State presented both
direct and substantial circumstantial evidence indicating Bessellieu drove by porch
where the women were gathered, saw the women on the porch, parked his car,
proceeded to walk towards the porch, pointed his gun directly at the women, and
fired enough rounds to kill at least four of them. See State v. McGowan, 430 S.C.
373, 378–79, 845 S.E.2d 503, 505 (Ct. App. 2020) (finding the court of appeals must
affirm the trial court's decision to submit the case to the jury when, "view[ing] the
evidence and all reasonable inferences in the light most favorable to the State," "the
[S]tate has presented 'any direct evidence or any substantial circumstantial evidence
reasonably tending to prove the guilt of the accused'" (second alteration in original)
(quoting State v. Hepburn, 406 S.C. 416, 429, 753 S.E.2d 402, 409 (2013)). This
evidence demonstrates Bessellieu had the requisite mens rea to support four counts
of attempted murder of the four women. 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."); King, 422 S.C. at 57, 810 S.E.2d at 23 ("Attempted murder is the
performance of an act or acts which tend, but fail, to kill a human being, when such
acts are done with express malice, namely, with the deliberate intention unlawfully
to kill." (quoting Keys v. State, 766 P.2d 270, 273 (Nev. 1988))); Taylor, Op. No.
5853 at 86 (finding intent to kill may be shown through circumstantial evidence); cf.
McGowan, 430 S.C. at 381, 845 S.E.2d at 507 (finding first-degree assault and
battery of child victim conviction was not supported by evidence of specific intent
to injure the child when no evidence was presented McGowan knew the child was
in the home when McGowan shot in the direction of the home).

Further, the State met its burden of proving specific intent to kill the women with
express malice. Regardless of the State's theory of transferred intent, the jury could
find Bessellieu pointed and fired a deadly weapon multiple times directly at four
women, and therefore, he deliberately intended to kill each of them. See Williams,
427 S.C. at 158 n.9, 829 S.E.2d at 707 n.9 (finding the doctrine of transferred intent
was unnecessary to uphold Williams' conviction of attempted murder when evidence
was presented indicating Williams intended to kill "the figure in the doorway"
regardless of whether Williams had premeditated motive to kill that particular person
in the doorway). Accordingly, we affirm the denial of Bessellieu's directed verdict
motion.

AFFIRMED.1

KONDUROS, HILL, and HEWITT, JJ., concur.

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