State v. Hatcher

THIS OPINION
HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Ted Dean
Hatcher, Jr., Appellant.

Appeal From Spartanburg County

 Doyet A. Early, III, Circuit Court Judge

Unpublished Opinion No. 2008-UP-256

Submitted May 1, 2008 – Filed May 14, 2008

REVERSED AND REMANDED

Appellate Defender Eleanor Duffy Cleary, of Columbia, for
Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,
and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia;
and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.

PER CURIAM: Ted
Dean Hatcher appeals his conviction for assault and battery with intent to kill
(ABWIK), alleging the trial court erred in refusing to charge the jury on the
lesser included offense of assault and battery of a high and aggravated nature
(ABHAN).  We reverse and remand.[1] 

FACTS

Hatcher was charged with ABWIK against
Cedrick Lyles after Hatcher shot Lyles while Lyles was stopped in his car in
front of Hatcher’s trailer.  Hatcher claimed he thought he saw Lyles reaching
for a weapon and shot off his gun in self defense. 

At
trial, Hatcher testified that he bought crack cocaine from Lyles the night
before the shooting.  When Hatcher returned home that night, roughly thirty
minutes later, he saw a car parked outside his trailer with its inside lights
on.  As he drove closer, he saw Lyles run from the back of the car and jump in
his driver’s side door.  Hatcher’s girlfriend, Ferrin Brown, was standing at the
back of the car crying.  Lyles asked Hatcher to get in the car and talk.  He
told Hatcher that Brown loved Hatcher and would never “do nothing behind
[Hatcher’s] back.”  Lyles said he knew the two had been arguing and wanted to
help them work through their problems.  Hatcher got out of the car and Lyles
followed him into the trailer. 

Inside,
Brown was sitting in the bathroom crying.  Lyles said he was going to help them
“talk through this,” but Hatcher told him he did not need help and asked Lyles to
leave.  After Lyles left, Hatcher went back to Brown, slapped her, and asked
her what was going on.  Eventually, Brown told him that she had been raped but
refused to go to the hospital. 

Hatcher
testified that he called Lyles several times the next day and told him he knew
what had happened the night before and he was going to “whoop his ass.”  Lyles
said he would come by Hatcher’s house and “take care of you both.”  Hatcher
testified he thought Lyles was going to shoot him and Brown, so he borrowed a
gun from a friend for protection.  He also said he knew Lyles carried a gun and
had seen him with a weapon two weeks earlier. 

Hatcher
testified when Lyles arrived later that day, Lyles stopped his car and said
“what’s up.”  Hatcher then saw him “lean forward in his driver’s seat and reach
like this.”  Hatcher said he thought Lyles was reaching for a gun, so, without
taking aim, Hatcher began to shoot.  After firing the gun, Lyles put his foot
on the gas and drove straight into the woods.  Hatcher ran back to his trailer
and told his father what happened.  Hatcher left his trailer, threw the gun in
the lake, and went to his brother’s house where the police found him the next
day.  

According to Lyles, Hatcher called and told him to come by the
trailer. Hatcher told Lyles that he needed to talk and he had something for him.
 As Lyles approached Hatcher’s house, he saw him about 50 yards from his
driveway.  Lyles pulled over, rolled down his window, and greeted Hatcher. 
Lyles testified Hatcher accused him of messing with Brown and began shooting.  Lyles
was shot several times, sustaining gunshot wounds to his left upper abdomen,
left eye, left neck, and left shoulder.  Lyles lost control of his car and it
veered off the road.  Lyles claimed Hatcher went through his pockets and then
ran from the scene.  Lyles got out of the car and managed to walk until an officer
saw him in the street covered in blood. 

At trial, Hatcher requested the judge charge the jury on ABHAN as
a lesser-included offense of ABWIK.  The judge stated that he would not charge
the lesser-included offense because “there wasn’t any fist and there wasn’t
anything else other than a .38 shot five times.”  He concluded, “either he
acted in self-defense or intent to kill the guy” and refused to charge ABHAN.  The
judge charged the jury with ABWIK, possession of a weapon during the commission
of a crime, and the defense of self-defense.  The jury found Hatcher guilty of
ABWIK and possession of a firearm.  The judge sentenced Hatcher to twenty years
for ABWIK and five years for possession of a firearm.  This appeal follows. 

STANDARD OF REVIEW

If any evidence supports a jury charge,
the trial judge should grant the request.  State v. Brown, 362 S.C. 258, 262, 607 S.E.2d 93, 95 (Ct. App. 2004) 
 The law to be charged is determined from the evidence presented at trial.  State
v. Patterson, 367 S.C. 219, 231, 625 S.E.2d 239, 245 (Ct. App. 2006).  “Due process requires that a lesser
included offense be charged when the evidence warrants it but only if the
evidence would permit a jury rationally to find the defendant guilty of the
lesser offense.”  State v. Small, 307 S.C. 92, 94, 413 S.E.2d 870, 871
(Ct. App. 1992).   

In
criminal cases, this court sits to review only errors of law.  State v. Wood, 362 S.C. 520, 525, 608 S.E.2d 435, 438 (Ct. App. 2004).   “To
warrant reversal, a trial court's refusal to give a requested jury charge must
be both erroneous and prejudicial to the defendant.”  Patterson, 367
S.C. at 232, 625 S.E.2d at 245. 

LAW/ANALYSIS

Hatcher
argues the trial judge erred by refusing to charge the jury on ABHAN.  We agree.

Initially, we address the State’s contention that Hatcher failed
to preserve this issue for appeal because he offered a “bare bones” jury charge
and did not object to the trial judge’s jury instructions.  We disagree. 

In State v. Johnson, the South Carolina Supreme Court
clarified it is “the long-standing rule that where a party requests a jury
charge and, after opportunity for discussion, the trial judge declines the
charge, it is unnecessary, to preserve the point on appeal, to renew the
request at conclusion of the court’s instruction.”  333 S.C. 62, 64 n.1, 508
S.E.2d 29, 30 n.1 (1998).  The court reiterated the rule because it found its
earlier decision in State v. Whipple, 324 S.C. 43, 476 S.E.2d 683 (1996)
was misinterpreted.  Whipple was being read as indicating that where a
party’s jury charge objections or requests are denied on the record after a
pre-charge conference, the party must renew those objections or requests
subsequent to the court's instructions to the jury.  Id.  In Johnson,
the court explained because there was no on-the-record discussion regarding
whether the judge would give Whipple’s jury charge, there was no on-the-record
ruling as to whether the court would give a certain charge.  Id. 
Therefore, Whipple failed to preserve the issue by failing to object to the
judge’s charge as given.  Id.  Conversely, the court found Johnson’s
request to charge was denied on-the-record after an opportunity for
discussion.  Therefore, the court found Johnson was not required to renew his
request at the conclusion of the charge.  Id.

As in Johnson, Hatcher made an on-the-record request for an
ABHAN charge.  The court afforded an opportunity for discussion, eliciting discussion
from both Hatcher and the Solicitor.  After the discussion, the trial judge
stated, “I’m not going to charge the lesser included offense.”  The judge
proceeded to charge the jury on ABWIK, possession of a weapon during the commission of a crime, and the
defense of self-defense.  We
find Hatcher was not required to renew his request at the conclusion of the
charge and therefore, this issue is preserved for our review.     

We next address
whether the trial judge erred in refusing to charge the lesser included offense
of ABHAN.  ABWIK is an unlawful act of a violent nature to the person of
another with malice aforethought, either express or implied.  State v. Foust,
325 S.C. 12, 14, 479 S.E.2d 50, 51 (1996).  Malice is a required element of
ABWIK.  State v. Kinard, 373 S.C. 500, 504, 646 S.E.2d 168, 170 (Ct.
App. 2007).  With the exception of the death of the victim, each element of
murder must be proven beyond a reasonable doubt in order for a jury to convict
a defendant of ABWIK.  Kinard at 503, 646 S.E.2d at 169.  Malice
aforethought, which encompasses acts committed with extreme recklessness, satisfies
the general intent required for a conviction of ABWIK.  Id. at 505-06,
646 S.E.2d at 170.

On the other hand, ABHAN is an unlawful act of violent injury accompanied by circumstances of
aggravation.  State v. Fennell,
340 S.C. 266, 274, 531 S.E.2d 512, 516 (2000)  Circumstances of aggravation
include the use of a deadly weapon, infliction of serious bodily injury, intent
to commit a felony, great disparity between the ages and physical conditions of
the parties involved, and a difference in the sexes.  Id. at 274, 531
S.E.2d at 516-17.  The absence of malice is not a required element of ABHAN,
and the fact that a defendant acts with malice does not preclude a finding of
ABHAN.  State v. Tyler, 348 S.C. 526, 530-31, 560 S.E.2d 888, 890
(2002).  

In
determining whether the evidence required the judge to charge the jury on
ABHAN, this court must view the facts in the light most favorable to the
defendant.  See State v. Byrd, 323 S.C. 319, 321, 474
S.E.2d 430, 431 (1996).  In this case, examining the evidence in a light most
favorable to Hatcher, a jury could conclude that he is guilty of only ABHAN.  Hatcher
testified that he stood 3-4 feet away from Lyles car and did not aim when he
shot the gun.  He then stated he initially did not know whether he hit Lyles
because he did not aim the gun at Lyles, rather he just pulled the gun and
fired it.  Further, Lyles sustained gunshot wounds to various parts of his
body, indicating Hatcher may have simply been shooting in Lyles’ direction in
an attempt at self preservation whether legally justified or not.  While the
jury ultimately rejected the issue of self-defense, that determination is not
dispositive of the issue.  Furthermore, while the evidence in this case may
give rise to an inference the shooting was committed with malice, the inference
is a permissive one which the jury is free to accept or reject.  See State
v. Pilgrim, 320 S.C. 409, 415 n.3, 465 S.E.2d 108, 112 n.3 (Ct. App. 1995), overruled on other grounds by State v. Foust, 325 S.C. 12, 479
S.E.2d 50 (1996). 

Accordingly,
because there is evidence to support an ABHAN instruction, we find the trial
judge erred in failing to charge the lesser-included offense of ABHAN and that
the appellant was prejudiced by this error.  Furthermore,
in reversing Hatcher’s ABWIK conviction, we must also reverse the conviction
for possession of a firearm during the commission of a violent crime because
the former conviction is a prerequisite to the latter.  E.g., S.C. Code
Ann. § 16-23-490(E) (2003) (noting the additional punishment for possession of
a firearm during the commission of a violent crime may not be imposed unless
the defendant is convicted of the underlying violent crime); State v. Taylor, 356 S.C. 227, 235 n.4, 589 S.E.2d 1, 5 n.4 (2003) (noting defendant's
conviction for possession of a weapon during the commission of a violent crime
must be reversed where the court was reversing defendant's murder conviction).  Based
on the foregoing, Hatcher’s convictions are hereby

REVERSED
AND REMANDED.

WILLIAMS,
THOMAS, and PIEPER, JJ., concur.

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