State v. Johnathan L. Hillary

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Johnathan Lamar Hillary, Appellant.

Appellate Case No. 2019-001048

Appeal from Horry County
William A. McKinnon, Circuit Court Judge

Opinion No. 6015
Heard June 15, 2023 – Filed August 16, 2023

AFFIRMED IN PART AND VACATED IN PART

Appellate Defender David Alexander, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Deputy Attorney General Melody Jane Brown, Senior
Assistant Attorney General J. Anthony Mabry, all of
Columbia, and Solicitor Jimmy A. Richardson, II, of
Conway, all for Respondent.

GEATHERS, J.: Johnathan Lamar Hillary (Hillary) challenges his convictions for
murder, armed robbery, kidnapping, and possession of a weapon during the
commission of a violent crime. He argues that (1) a statement he gave to law
enforcement, admitted into evidence at trial, was not voluntary; (2) evidence
concerning a separate robbery allegedly committed by Hillary should not have been
admitted at trial; and (3) the sentence for kidnapping was improper given that Hillary
was also convicted and sentenced for murder. We affirm in part and vacate in part.

FACTS/PROCEDURAL HISTORY

In the fall of 2016, Kaitlin Buckley (Kaitlin) reported to police that her father,
Timothy Buckley (Buckley), was missing. At that point, the elder Buckley had not
been heard from for several days. 1 Family members and friends joined the search
for Buckley, a retired police officer.

Among those involved in the search were Carl Wenner and his brother, who
was a lifelong friend of Buckley. The two men found Buckley's truck around
October 5, 2016, on 29th Street in Myrtle Beach. The bloodied passenger side of
the vehicle interior indicated that Buckley's fate was likely dire, but neither Buckley
nor his body were immediately found. John Caulder, a crime scene investigator,
found tissues in some of the blood indicating an unidentified individual might have
been shot in the head.

Buckley's body would not be recovered until around November 10, when two
young men on a before-school excursion came upon what one of the men believed
to be a dead animal; his companion realized instead that the badly decomposed
corpse was human. According to a subsequent autopsy, Buckley had been killed
when he was shot in the back of the head.

Following a request from Horry County authorities, law enforcement in
Georgia tracked Hillary to a townhouse in Atlanta. 2 Based on the probation status
of an individual at the unit, law enforcement began searching the home. 3 There,
officers found a revolver hidden in an upstairs bathroom. The serial number of that
revolver matched the serial number of a revolver belonging to Buckley.
Additionally, on the first floor of the townhouse, officers found a holster that had a
broken snap—a characteristic of Buckley's holster, according to Kaitlin. Credit
cards, a driver's license, and various other forms of identification under the name

1
It appears that September 28 was the last day on which Buckley was heard from.
2
The circumstances of this request are not entirely clear in the record. A state
member of the U.S. Marshals Fugitive Task Force in Georgia said that the force
"received [a] lead and said that we needed to try to locate Mr. Hillary for the Horry
County Police Department."
3
Investigator Bradley Mark Willis testified that an initial search turned up a firearm,
prompting a more thorough inspection.
"Bocar Bah" were also found in the townhouse. 4 There were indications that Hillary
and Bernithia Young (Young) resided in the upstairs portion of the townhouse.

While Hillary was held in Georgia, two Horry County detectives—Gregory
Lent and David Dudley—traveled to Atlanta to interrogate him about Buckley's
murder. 5 Hillary initially told the detectives that on the night Buckley disappeared,
Hillary had given fake methamphetamine to a haggard man on the street in exchange
for a chance to drive the man's truck. Hillary said he later abandoned the truck and
threw the keys aside after the man began persistently calling Hillary's phone. Hillary
then arranged for Young to pick him up.

During the interrogation, the detectives continued to draw out Hillary's
version of events. Then, they started trying to poke holes in it. At one point,
apparently frustrated by Hillary holding to his story, Detective Lent said: "Let him
go back to South Carolina and he can tell it to a jury when they give him the death
penalty." 6 At another point, Lent discussed some of the possible reasons for a
conflict between Hillary and Buckley in the moments before Buckley's murder.
Perhaps, Lent suggested, "[s]omeone tried hurting [Hillary] and [he] had to do what
[he] had to do to defend [himself]." Lent also made clear that cooperation was in
Hillary's best interest; he told Hillary that if Hillary did not "explain" the slaying,
"I'm going to walk out those doors and I'm going to sing the story that John Hillary
don't give a s**t about nobody and that he's a cold-blooded killer." Later, Lent told
Hillary: "I told you, I'm not asking if you did it or not. I'm asking you what
happened. I'm asking you how it happened. I'm asking you to provide some story
that might just save your a**." Detective Dudley said: "Let's put it like this[:] When
a jury sees you driving around in the truck for hours with blood on the inside with
no remorse for what you did, you think they're going to hesitate to put a needle in
your arm?"

The two detectives applied other techniques as well. They misled Hillary
about the quantity and quality of evidence against him. Detective Lent indicated

4
Similar items belonging to individuals with the last name "Sitler" were also present.
5
According to one of Hillary's filings at the circuit court, this interrogation took
place on November 18.
6
The quotes reproduced here are drawn in part from the transcript provided at trial
and in part from the interrogation's recording, which differ in largely inconsequential
ways. At certain points, chiefly for clarity, we have altered the transcript or its
punctuation to conform to the recording. The audio was played for the jury at trial,
but certain portions of the interrogation were redacted.
Hillary could "come up with a lie" explaining Buckley's death. 7 Detective Lent again
posed potential narratives, including: "Maybe [Buckley] rolled up on you looking
for sex." Eventually, Hillary began to tentatively suggest he might talk.

Hillary: If I tell . . .

Det. Lent: If you, if you're honest with me, it at
least goes towards showing remorse. It
goes towards helping that man's family
understand why. Dude, they're
burying him this weekend. You know
what they got to bury? Probably a
cardboard box about that big. With
some loose f*****g bones in it. That's
all they got.

Det. Dudley: You tell us the truth and we'll help you.
We ain't going to hang you out to
f*****g dry. So tell us the truth, John.

Det. Lent: Dude, you're probably, it's probably
been eating you up for the last 50 days.
Whatever it's been. You're right, I
have looked at your criminal history.
It ain't nearly as bad as a whole bunch
of others that I've seen here.

Hillary: I'm not that, I'm not a bad person, man.

Within moments of that exchange, Hillary began to unspool a new story. He told
the detectives to "[p]ut yourself in this scenario," suggesting that Buckley had picked
Hillary up on the road and attempted to sexually assault him in the truck. Hillary
gradually seemed to abandon this framing of his narrative and tell the detectives
what he claimed had happened. According to Hillary, Buckley pulled a gun. Hillary
was able to grab the gun in a struggle between the two men.

Hillary said he fled through the passenger-side window of the truck with
Buckley "on my tail." Hillary then said he used Buckley's gun to "defend" himself
because he was worried that Buckley might have another firearm. Hillary said he

7
The detectives, at other times, indicated they were interested in the truth.
did not know where the first shot he fired hit Buckley. The detectives then pressed
Hillary on a second shot.

Det. Lent: So now here, here's the question. The
second time you shot him, where 8 did
you have to shoot him to make sure
that, that he wasn't suffering?

Hillary: That he wouldn't end up, he wouldn't
attack me no more. I just want[ed] to
make sure.

Det. Lent: Right.

Hillary: You know what I mean but . . .

Det. Lent: But where on his body did you shoot
him?

Hillary: I don't know.

Det. Lent: The second time you shot him?

Hillary: I don't know. I just, it wasn't
premeditated. It wasn't no, it wasn't no
thought about it, you know, it just . . .

Det. Lent: How many times did you end up
shooting him? How many times did
you fire the gun that night [inaudible]
to protect yourself; two times?

Hillary: Twice.

Det. Lent: Ok. Alright. The reason why I ask,
'cause obviously when we go out there,

8
The transcript has "why" here. Based on our review of the recording, Detective
Lent asked Hillary a question about where Hillary shot Buckley. At the same time,
Hillary's answer appears to show that he interpreted the question as one about why
he shot Buckley again.
right where we found him, he had a
gunshot wound to his head.

Hillary: Oh, did he? I ain't aim to hit him in his
head.

Hillary said that after the shooting, he left the body nearby. Hillary also appeared to
admit to taking some money, an admission that followed after Dudley's comments
that "[i]t's not like we're going to slap a robbery charge on you, ok. Please don't
worry about that, that's not what we're after." Hillary also said he met up with
Young, and they disposed of the truck.

Hillary was charged with murder, armed robbery, kidnapping, and a felony
involving the use of a deadly weapon. The State did not seek the death penalty.

At trial, more than twenty witnesses testified over five days. That included
testimony at hearings held to determine whether Hillary's statement to police was
voluntary and whether the jury could hear about the robbery of a truck driver named
Bocar Bah.

Regarding the first issue, Detective Lent and Hillary both testified about the
interrogation. Detective Lent said the interrogation was an example of "progressive
truth telling . . . when the interview subject will begin to tell one part of the truth,
and then as the interview goes on[,] we'll add other information as he is presented
with evidence that we have in, in the case." Detective Lent denied that his statements
invoking the death penalty were meant to threaten Hillary with capital punishment
and agreed with the State's contention that the detectives never promised Hillary that
the State would not seek the death penalty. Detective Lent answered in the negative
when asked whether Hillary "ever appear[ed] scared, fearful or threatened by the
mention that he could possibly face the death penalty."

For his part, Hillary said the statement was an attempt to avoid capital
punishment. "I told them what they wanted to hear because they felt like I need to
tell them something to help myself. They didn't want me to tell them the truth."
Under cross-examination by the State, Hillary repeated his original story of the
haggard man and the fake drugs. Hillary also suggested that the details mentioned
by the detectives informed the narrative he gave. "They told me the scenario. They
wanted my side of the offense and they elaborated on details that I had no idea of
knowing about until they mentioned them to me."

The circuit court ruled that the statement could be admitted at trial. The court
found that the officer's comments about capital punishment were "with regard to the
jury imposing the death penalty, not a threat the officers are going to do it or the
officers are going to manipulate the system." The court also did not view any of the
statements made by the detectives during the interrogation as guaranteeing leniency
to Hillary.

The court also considered whether the jury could hear the story of a truck
driver from Memphis named Bocar Bah (Bah), who testified about an alleged
robbery in Summerville. On a previous trip to South Carolina, Bah testified, he had
met Young at a convenience store. 9 They exchanged phone numbers. Ahead of a
trip in November, Bah called Young to ask about the possibility of a liaison in South
Carolina. She agreed.

The pair met at a Walmart. Bah said Young was driving a white Chevrolet
Impala. After purchasing some alcohol, the two drove to a hotel. At the same time,
Bah noticed that Young was texting with an unidentified correspondent. At the
hotel, when Bah stepped out of the car, a male stepped behind Bah and ordered him
to "[l]ay on the ground." "Don't, don't try me. I will shoot you," the man said. Bah
gave the man his wallet and phone. During his testimony at the pretrial hearing, Bah
suggested that Hillary pretended to make Young come with Hillary unwillingly.

Bah later identified Hillary and Young in a lineup. At trial, Bah testified that
Hillary's gun was a semiautomatic, and he identified the gun. Bah, however,
conceded on cross-examination that his testimony was different in some respects
from what he initially told law enforcement. For example, Bah admitted that he
originally did not tell officers he had met Young before that night.

After hearing testimony from Bah and Summerville Police Officer Chris
Cooper, the circuit court found the evidence of the robbery admissible. Specifically,
the court found that the robbery of Bah and the alleged attempt to rob Buckley was
part of a common scheme or plan because "there's a strong connection[:] both
robberies of single male victims, they're both driven away in the white Impala, cash
from a wallet was stolen in both cases, and then obviously, the, the most, the
strongest parallel is the communications between Mr. Hillary and Ms. Young, the
text messages and the phone calls . . . ."

During the trial, jurors heard about the movements of the vehicles connected
to the case during the evening of September 28 and the morning of September 29,
as observed by Myrtle Beach traffic cameras. Additionally, Scott Eicher, a retired

9
We have incorporated aspects of Bah's testimony both at trial and during the pretrial
hearing into this narrative.
FBI agent and consultant, testified about the location of cell phones owned by or
associated with Hillary, Young, and Buckley around the time when Buckley was
believed to be murdered. The evidence heavily suggested that Hillary and Buckley,
in particular, were in several of the same areas around the time of Buckley's murder.

After little more than an hour of deliberations, the jury convicted Hillary on
all charges. The circuit court sentenced Hillary to life in prison for the murder
charge; thirty years for the armed robbery; thirty years for the kidnapping charge;
and five years on the weapons charge, all to run concurrently. This appeal followed.

ISSUES ON APPEAL

I. Did the circuit court err in finding that Hillary's statement was voluntary,
despite the detectives' alleged threats and promises of assistance?

II. Did the circuit court err in allowing the testimony about the robbery of Bah
under Rule 404, SCRE?

III. Should this court vacate Hillary's sentence for kidnapping because he was also
sentenced for murder?

STANDARD OF REVIEW

We discuss the standard for review regarding some of Hillary's individual
claims in greater detail below. However, we must keep in mind the limited scope of
our review in all criminal matters. "In criminal cases, the appellate court sits to
review errors of law only. This court is bound by the trial court's factual findings
unless they are clearly erroneous." State v. Parker, 381 S.C. 68, 74, 671 S.E.2d 619,
621 (Ct. App. 2008) (citations omitted).

LAW/ANALYSIS

I. VOLUNTARINESS OF THE STATEMENT

Hillary argues that his statement to police about the circumstances of
Buckley's death was not voluntary. We disagree.

"On appeal, the trial judge's ruling as to the voluntariness of the confession
will not be disturbed unless so erroneous as to constitute an abuse of discretion."
State v. Moses, 390 S.C. 502, 510–11, 702 S.E.2d 395, 399 (Ct. App. 2010) (quoting
State v. Myers, 359 S.C. 40, 47, 596 S.E.2d 488, 492 (2004)). "When reviewing a
trial court's ruling concerning voluntariness, this [c]ourt does not reevaluate the facts
based on its own view of the preponderance of the evidence, but simply determines
whether the trial court's ruling is supported by any evidence." State v. Johnson, 422
S.C. 439, 454, 812 S.E.2d 739, 747 (Ct. App. 2018) (alteration in original) (quoting
State v. Saltz, 346 S.C. 114, 136, 551 S.E.2d 240, 252 (2001)).

We do not wish to proceed without saying candidly that we are uneasy with
the full sweep of the police officers' interrogation tactics in this case. However, we
find that Hillary's statement was voluntary.

In South Carolina, the test for determining whether a
defendant's confession was given freely, knowingly, and
voluntarily focuses upon whether the defendant's will was
overborne by the totality of the circumstances surrounding
the confession. Courts have recognized appropriate
factors that may be considered in a totality of the
circumstances analysis: background; experience; conduct
of the accused; age; maturity; physical condition and
mental health; length of custody or detention; police
misrepresentations; isolation of a minor from his or her
parent; the lack of any advice to the accused of his
constitutional rights; threats of violence; direct or indirect
promises, however slight; lack of education or low
intelligence; repeated and prolonged nature of the
questioning; exertion of improper influence; and the use
of physical punishment, such as the deprivation of food or
sleep.

Moses, 390 S.C. at 513–14, 702 S.E.2d at 401 (citation omitted); see also State v.
Arrowood, 375 S.C. 359, 367, 652 S.E.2d 438, 442 (Ct. App. 2007) ("A statement
'may not be extracted by any sort of threats or violence, [or] obtained by any direct
or implied promises, however slight, [or] by the exertion of improper influence.'"
(alterations in original) (quoting State v. Rochester, 301 S.C. 196, 200, 391 S.E.2d
244, 246 (1990))).

Given our "any evidence" standard of review and the existence of an
uncontradicted audio recording of the interview, our task here is narrow and
straightforward. If the actions and statements of the officers as captured on the
recording can support the circuit court's view that the confession was voluntary
under our state's precedents, we should affirm. Put another way, reversal would be
proper only if the events on the recording cannot support the circuit court's ruling.
We find the detectives went up to the line of what is permissible under our
precedents. No doubt, there are some troubling aspects of the interrogation. Judging
by the evidence presented at trial, the detectives who interrogated Hillary repeatedly
misrepresented the strength of the State's case at that point. They invoked the specter
of the death penalty twice, even if they did not directly threaten Hillary's life. We
find it particularly concerning that the detectives outlined potential stories that
Hillary could tell and seemingly encouraged him to "come up with a lie" if he wanted
to do so—shortly before floating the scenario that "[m]aybe [Buckley] rolled up on
you looking for sex." That, of course, would end up nearly matching the explanation
Hillary gave during the later stages of the interrogation for how he came to take
Buckley's life.

Our courts have previously expressed disapproval of some tactics similar to
those that Detective Lent and Detective Dudley used here. For example, in State v.
Peake, our supreme court ruled that a confession should have been excluded when
the officer answered affirmatively to a question about whether the officer had
promised "that if [the defendant] would give you a statement . . . you would
guarantee to him that you would not seek the death penalty." 291 S.C. 138, 139, 352
S.E.2d 487, 488 (1987). However, the court also ruled that "[a] statement induced
by a promise of leniency is involuntary only if so connected with the inducement as
to be a consequence of the promise." Id.

In this case, it does not appear that Hillary was promised leniency. At most,
the officers assured Hillary that they would put in the proverbial good word for
him—that they would not "hang [him] out to f*****g dry" when they talked to
prosecutors. That is similar to the interrogation this court considered in Arrowood.
There, the circuit court relied on testimony by law enforcement that "the only 'help'
they offered Arrowood was to testify in court that he cooperated with the
investigation." Arrowood, 375 S.C. at 368, 652 S.E.2d at 443. Our court held that
"the officers' offer to attest to Arrowood's cooperation did not constitute promises of
leniency. Consequently, Arrowood produced his statements in the mere 'hope' of
leniency based on his cooperation, rather than as the consequence of promises." Id.
at 368–69, 652 S.E.2d at 443 (citations omitted).

Here, as in Arrowood, the officers were not promising leniency; if the officers
followed through on their offer, it would provide Hillary with "the mere 'hope' of
leniency based on his cooperation." See also Parker, 381 S.C. at 91, 671 S.E.2d at
631 ("[D]iscussions of realistic penalties for cooperative and non-cooperative
[defendants] . . . are normally insufficient to preclude free choice." (third alteration
in original) (quoting United States v. Mendoza–Cecelia, 963 F.2d 1467, 1475 (11th
Cir. 1992), abrogated on other grounds by Davis v. United States, 512 U.S. 452
(1994))).

Further, our courts have found that glancing references to the death penalty
do not automatically render a statement involuntary. See Johnson, 422 S.C. at 456,
812 S.E.2d at 748 (affirming the circuit court's ruling even though talk of capital
punishment "was not really a 'discussion' of possible penalties but a statement that
keeping up this 'b[***]s[***] story' was going to land him in prison for life if not
the death penalty" because "this comment was isolated, and the death penalty was a
possible sentence for the crimes at issue"). 10 Likewise, our courts have been hesitant
to throw out statements encouraged by officers' false statements. See id. ("[C]ourts
have routinely held the misrepresentation of evidence does not render a confession
involuntary unless it is demonstrated the free will of the defendant was overborne.");
see also State v. Goodwin, 384 S.C. 588, 603, 683 S.E.2d 500, 508 (Ct. App. 2009)
("While we do not condone the officers' statements regarding their evidence and
[threatening the appellant's] family, we do not find they overbore [the appellant's]
will.").

Here, we find that even if the officers' tactics were at the extreme end of the
allowable spectrum, they informed Hillary's mental calculation about whether to
confess, rather than overbearing his will. See Parker, 381 S.C. at 89, 671 S.E.2d at
630 ("It is generally recognized that the police may use some psychological tactics
in eliciting a statement from a suspect. . . . These ploys may play a part in the
suspect's decision to confess, but so long as that decision is a product of the suspect's
own balancing of competing considerations, the confession is voluntary." (alteration
in original) (quoting State v. Von Dohlen, 322 S.C. 234, 244, 471 S.E.2d 689, 695
(1996), overruled on other grounds by State v. Burdette, 427 S.C. 490, 832 S.E.2d
575 (2019))).

As part of his argument that the statement was involuntary, Hillary relies in
part on Bussey v. State, 184 So.3d 1138 (Fla. Dist. Ct. App. 2015). Hillary says that
the two cases represent a "strikingly similar factual scenario." We disagree.

The court in Bussey found that "detectives misled Bussey into believing that
if he confessed to the victim's death being an accident, he would be charged with
robbery, not murder, and he would not face the death penalty." Id. at 1146–47.
Bussey's mother was brought in and told Bussey that she would "rather come visit

10
The Johnson court also noted: "Johnson did not recant his [initial] story until well
after the death penalty was mentioned, and it does not appear to have overborne his
will." Id.
you in jail than to bury you." Id. at 1145. The Bussey court also held that officers
"repeatedly misled Bussey regarding what charges and penalties he could face if the
victim's death was the result of what they referred to as an 'accident' or 'mistake,' i.e.,
a robbery resulting in a death." Id. at 1146.

While Detective Lent and Detective Dudley used some similar techniques to
encourage Hillary to confess, their actions fall short of the sustained pressure
campaign that prompted the Bussey court's ruling. 11

Given all of these considerations, we find that the record presented at trial
provides some evidence to support the circuit court's finding of voluntariness.

II. SUBSEQUENT BAD ACTS EVIDENCE

Hillary argues that the circuit court erred in admitting evidence concerning
the robbery of Bah. We agree, but we find that any error in admitting the testimony
was ultimately harmless.

"The [circuit court] has considerable latitude in ruling on the admissibility of
evidence[,] and his decision should not be disturbed absent prejudicial abuse of
discretion." State v. Cope, 405 S.C. 317, 334–35, 748 S.E.2d 194, 203 (2013)
(quoting State v. Clasby, 385 S.C. 148, 154, 682 S.E.2d 892, 895 (2009)).

"[E]vidence of other distinct crimes committed by the accused may not be
adduced merely to raise an inference or to corroborate the prosecution's theory of
the defendant's guilt of the particular crime charged." State v. Lyle, 125 S.C. 406,
416, 118 S.E. 803, 807 (1923). However,

[g]enerally speaking, evidence of other crimes is
competent to prove the specific crime charged when it
tends to establish, (1) motive; (2) intent; (3) the absence of
mistake or accident; (4) a common scheme or plan

11
Further, Hillary's passing reference to this court's opinion in State v. Hook, 348
S.C. 401, 559 S.E.2d 856 (Ct. App. 2001), can be distinguished; in that case, the
appellant was not even Mirandized. Id. at 412–13, 559 S.E.2d at 861. Likewise, we
find Hillary's reliance on State v. Corns unavailing. See 310 S.C. 546, 426 S.E.2d
324 (Ct. App. 1992). We do not read Corns to say that a "change in demeanor" is a
decisive consideration on the voluntariness of statements, and while there is a change
in tone by Hillary in the audio of the interrogation, we find it is not marked enough
to indicate that his will was "overborne."
embracing the commission of two or more crimes so
related to each other that proof of one tends to establish
the others; (5) the identity of the person charged with the
commission of the crime on trial.

Id. (quoting People v. Molineux, 61 N.E. 286, 294 (N.Y. 1901)). Under Lyle, the
use of the common scheme or plan exception "involves the establishment of such a
visible connection between the extraneous crimes and the crime charged as will
make evidence of one logically tend to prove the other as charged." Id. at 427, 118
S.E. at 811.

This court has observed the interplay between various standards of review
when the State invokes the common scheme or plan exception.

Ordinarily, questions concerning the admissibility of
evidence are treated as questions of fact. However, there
are several cases in which the trial judge's admission of
evidence under the common scheme or plan exception was
reversed after the appellate courts in South Carolina found
that the similarities between the charged and uncharged
acts were insufficient to establish the existence of such a
plan or design. Certainly, the factual determination as to
whether the prior assault occurred in this case is left to the
discretion of the trial judge. However, in light of these
authorities, we believe the determination of whether the
facts surrounding that assault sufficiently evidence a
common scheme or plan is a question of law.

State v. Tutton, 354 S.C. 319, 326–27, 580 S.E.2d 186, 190 (Ct. App. 2003) (citations
omitted) (emphases added). As a result, we do not need to focus on whether Bah's
allegations against Hillary were true. Instead, we find it easy to conclude that the
circuit court did not abuse its discretion in determining that the State had presented
clear and convincing evidence of the robbery. See id. at 325, 580 S.E.2d at 189
("When considering whether there is clear and convincing evidence of other bad
acts, this court is bound by the trial judge's factual findings unless they are clearly
erroneous."). However, we must more closely consider the finding that there was a
sufficient connection between the alleged robbery of Bah and the murder of Buckley
to allow the jury to hear Bah's testimony.

Our supreme court has "held that the connection between the prior bad act and
the crime must be more than just a general similarity." State v. Parker, 315 S.C.
230, 233, 433 S.E.2d 831, 832 (1993). Furthermore, "[i]t is not enough to meet the
'logical connection' standard for admission of other crimes under the common
scheme or plan exception to Rule 404(b) that the defendant previously committed
the same crime." State v. Perry, 430 S.C. 24, 41, 842 S.E.2d 654, 663 (2020). "There
must be something in the defendant's criminal process that logically connects the
'other crimes' to the crime charged." Id.

The State's argument that Bah's alleged experience with Hillary and Buckley's
murder were part of a common scheme or plan is weakened by the almost complete
lack of evidence that the two were, in fact, common to each other in any particularly
meaningful way. Without more evidence to that effect, we do not have sufficient
reason—and the circuit court did not have sufficient reason—to connect the
"criminal process" of the alleged robbery of Bah to the "criminal process" of the
murder of Buckley.

For example, the State contends in its brief that "[c]ell phone records evidence
supports that the victim Buckley first contacted [Young] at approximately 3 a.m. on
September 29, 2016." That is incorrect, as the State conceded in a letter to this court
after oral arguments. The citation used by the State in fact appears to point to
testimony supporting only "a general indication that both the victim's phone and Ms.
Young's phone were in the same area at the same time."

Instead, there is no evidence anywhere in the record of electronic contact
between Young and Buckley—the very kind of communication that allegedly set in
motion the robbery of Bah. Indeed, the State's own expert testified that there was
no evidence that Buckley communicated with either Young or Hillary in the critical
hours when the crime is believed to have been committed:

So this was Ms. Young's phone, Mr. Hillary's phone and
the victim's phone, and you can see the victim's phone here
is not making any contact with any of these two other
phones, but we do see a lot of contact between the Young
phones and Mr. Hillary's phone.

Given the evidence that Young had multiple phones, there is a possibility that
another phone was contacted by Buckley. It is also possible that Buckley somehow
came into contact with Young somewhere in the general area of a camper that
belonged to Buckley. However, that is nothing more than speculation. It is certainly
not the type of evidence of a connection between the two crimes that can allow the
State to qualify for the exceptions found in Lyle.
To the extent that the geolocation data shows that Young was in the "area" of
Buckley's camper, the State offered one point of data showing that her phone used a
tower that made it likely she was somewhere within a 120-degree arc, some of which
overlapped with Buckley's camper. Neither the State nor Hillary called Young to
testify about her role—if any—in the incident involving Buckley.

Furthermore, a chart of "similarities" between the two crimes used by the State
at trial contains many of the same generalities that our courts have found insufficient
to establish a common scheme or plan. Among the similarities are "incident
occurred in SC," "male victim," "def[endant]s came from G[eorgia]"—where, again,
they lived at least some of the time—and "def[endant]s used cell phone." Some of
the other similarities are stronger. Indeed, we cannot ignore that credit cards, a
driver's license, and other items linked to Bah were found at Hillay's location.
However, we find that these similarities and connections are not strong enough to
say that the two offenses are the result of the same "criminal process."

We do not mean to suggest that the State needs to present a perfect match
between two crimes to argue that they are part of a common scheme or plan. We
also do not question the circuit court's view of the evidence that a carjacking or
armed robbery scheme or plan involving Hillary and Young existed. However, we
do not believe that the State produced enough evidence in this case to show that the
murder of Buckley was part of that scheme or plan. See Lyle, 125 S.C. at 417, 118
S.E. at 807 (finding that, in considering admission of other bad acts, "[t]he acid test
is its logical relevancy to the particular excepted purpose or purposes for which it is
sought to be introduced"). Given that, admitting evidence of the robbery of Bah
under the common scheme or plan exception was error.

At the same time, we find this error to be harmless. See State v. Reyes, 432
S.C. 394, 406, 853 S.E.2d 334, 340 (2020) ("In determining whether error is
harmless beyond a reasonable doubt, we often look to whether the 'defendant's guilt
has been conclusively proven . . . such that no other rational conclusion can be
reached.'" (quoting State v. Collins, 409 S.C. 524, 538, 763 S.E.2d 22, 29–30
(2014))).

Here, no other rational conclusion can be reached but that Hillary murdered
Buckley. The cell phone evidence does not prove that Buckley's murder was part of
a common scheme or plan, but it is nonetheless damning on the question of whether
Hillary was involved in Buckley's death. Concluding that the mutual locations were
happenstance would require not so much a reasonable doubt as a suspension of
disbelief. Hillary's statement places him in the truck, and the location of the
Buckley's gun and holster at a home where Hillary was living in Georgia can hardly
be a coincidence. 12

The only element of the crime of murder on which the jury's considerations
could have been tainted by Bah's testimony was on the issue of malice—the dividing
line between murder on one side and voluntary manslaughter, involuntary
manslaughter, or self-defense on the other. However, we find beyond a reasonable
doubt that there is overwhelming evidence in the record from which the jury would
have inferred malice regardless. The evidence that Buckley was shot in the back of
the head and the evidence that he was shot twice both indicate the presence of malice.
Additionally, we note that the jury convicted Hillary of armed robbery and
kidnapping—both of which are felonies. See State v. Avery, 333 S.C. 284, 294, 509
S.E.2d 476, 481 (1998) ("If a person intentionally kills another during the
commission of a felony, malice may be inferred."); S.C. Code Ann. § 16-3-910
(defining kidnapping as a felony); S.C. Code § 16-11-330(A) (defining armed
robbery as a felony); see also State v. Burdette, 427 S.C. 490, 503, 832 S.E.2d 575,
582 (2019) ("[A] trial court shall not instruct the jury that it may infer the existence
of malice when the deed was done with a deadly weapon," but "if evidence is
introduced that the deed was done with a deadly weapon, the State is free to argue
to the jury that it should infer the existence of malice based on that fact and any other
facts that would naturally and logically allow a jury to conclude the defendant acted
with malice aforethought."); 41 C.J.S. Homicide § 285 (as of May 2023 update)
("Malice may be inferred from the circumstances surrounding a defendant's conduct
and the events leading up to the death of the victim.").

As a result, we find that evidence related to the robbery of Bah should not
have been admitted, but that the error was harmless.

III. CONVICTIONS FOR MURDER, KIDNAPPING

12
The State proceeded under the theory that Hillary had used his own gun for the
shooting. That gun was also found at the townhouse. However, the State did not
point to any forensic evidence linking the gun used in the robbery of Bah with
Buckley's murder; indeed, there could be no forensic evidence in the robbery of Bah
because the gun was not fired. Additionally, no bullets or casings were found in
Buckley's truck. See State v. Cheeseboro, 346 S.C. 526, 546, 552 S.E.2d 300, 311
(2001) ("In this case, there is forensic evidence that the same gun was used in both
the barbershop and cab driver shootings. This fact establishes a substantial
connection between the two crimes that supports the admission of evidence
regarding the cab driver murder." (emphases added)).
Hillary finally contends that he should not have been sentenced for both
kidnapping and murder. This issue was not preserved for appeal. However, for the
sake of judicial economy, we will vacate the improper sentence for kidnapping.

Section 16-3-910 of the South Carolina Code (2015) provides: "Whoever shall
unlawfully seize, confine, inveigle, decoy, kidnap, abduct or carry away any other
person by any means whatsoever without authority of law . . . upon conviction, must
be imprisoned for a period not to exceed thirty years unless sentenced for murder as
provided in Section 16-3-20."

As the State points out, Hillary did not raise this issue in the circuit court.
Hillary contends that we can and should vacate the sentence in any case under Owens
v. State. See 331 S.C. 582, 585, 503 S.E.2d 462, 463 (1998) ("The [c]ourt has
summarily vacated life sentences for kidnapping when the defendant received a
concurrent sentence under the murder statute.").

Principles of judicial economy favor vacating the sentence in this case. See
State v. Vick, 384 S.C. 189, 202, 682 S.E.2d 275, 282 (Ct. App. 2009) ("While the
case at hand does not present a threat that [the appellant] will remain incarcerated
beyond the legal sentence . . . our courts have, in the past, 'summarily vacated'
sentences for kidnapping where such sentences were precluded . . . because the
defendant received a concurrent sentence under the murder statute."); id.
("Additionally, our courts have at times considered an issue in the interest of judicial
economy."); State v. Bonner, 400 S.C. 561, 566, 735 S.E.2d 525, 527 (Ct. App. 2012)
("[T]here is an exceptional circumstance when 'the State has conceded in its briefs
and oral argument that the trial court committed error by imposing an
excessive sentence.'" (quoting State v. Johnston, 333 S.C. 459, 463, 510 S.E.2d 423,
425 (1999))); cf. State v. Plumer, 439 S.C. 346, 351, 887 S.E.2d 134, 137 (2023)
("On occasion, we encounter illegal sentences to which no objection was taken in
the trial court. In such cases, it is inefficient and a waste of judicial resources to
delay the inevitable by requiring the appellant to file a post-conviction relief action
or petition for a writ of habeas corpus.").

Here, the State does not specifically acknowledge in its brief that the sentence
was wrongly imposed, instead stressing the importance of issue preservation. The
State argues that one of our precedents "does not apply" and asserts that "this [c]ourt
has been inconsistent in adherence to the [c]ourt's precedent to unpreserved
sentencing issues." We note that Vick and Bonner have not been overruled by our
supreme court. There is no cognizable legal argument the State can raise that this
sentence was properly imposed. Nor do we believe that the interests of our state's
justice system are served by requiring Hillary to go through a collateral appeal
process to attack a facially invalid sentence that will not actually affect the length of
his imprisonment. We vacate the kidnapping sentence as a result.

CONCLUSION

For the reasons stated above, the ruling of the circuit court is

AFFIRMED IN PART AND VACATED IN PART.

HILL, A.J., and LOCKEMY, A.J., concur.