State v. Xzavier S. Davis

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.

Xzavier Sharif Davis, Appellant.

Appellate Case No. 2021-000982

Appeal From Newberry County
Benjamin H. Culbertson, Circuit Court Judge

Unpublished Opinion No. 2024-UP-247
Submitted June 1, 2024 – Filed July 3, 2024

AFFIRMED

Clarence Rauch Wise, of Greenwood, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Tommy Evans, Jr., both of Columbia,
for Respondent.

PER CURIAM: Xzavier Sharif Davis appeals his convictions for murder, assault
and battery of a high and aggravated nature (ABHAN), and possession of a
weapon during the commission of a violent crime, and his aggregate sentence of
thirty-five years' imprisonment. On appeal, Davis argues the trial court erred in (1)
failing to charge the jury on involuntary manslaughter, (2) instructing the jury on
an improper definition of malice and stating intent only applied to attempted
murder, and (3) failing to quash the indictment for attempted murder. We affirm
pursuant to Rule 220(b), SCACR.

1. We hold the trial court did not abuse its discretion when it declined to give an
involuntary manslaughter charge because (1) Davis did not engage in a lawful act
when he fired into an occupied vehicle and (2) firing eight times at a vehicle
occupied by four people is an act that naturally tends to cause death or great bodily
harm, and was not mere criminal negligence. See State v. Mattison, 388 S.C. 469,
479, 697 S.E.2d 578, 584 (2010) ("An appellate court will not reverse the trial
[court]'s decision regarding a jury charge absent an abuse of discretion."); State v.
Sams, 410 S.C. 303, 308, 764 S.E.2d 511, 513 (2014) ("The trial court is required
to charge a jury on a lesser-included offense if there is evidence from which it
could be inferred that the defendant committed the lesser, rather than the greater,
offense."); id. ("In determining whether the evidence requires a charge on a
lesser-included offense, the [appellate c]ourt must view the facts in the light most
favorable to the defendant."); State v. Smith, 391 S.C. 408, 414, 706 S.E.2d 12, 15
(2011) ("Involuntary manslaughter is: (1) the unintentional killing of another
without malice, but while engaged in an unlawful activity not amounting to a
felony and not naturally tending to cause death or great bodily harm; or (2) the
unintentional killing of another without malice, while engaged in a lawful activity
with reckless disregard for the safety of others."); S.C. Code Ann. § 16-23-440(B)
(2015) ("It is unlawful for a person to discharge or cause to be discharged
unlawfully firearms at or into any vehicle, aircraft, watercraft, or other conveyance,
device, or equipment while it is occupied."); Bozeman v. State, 307 S.C. 172, 177,
414 S.E.2d 144, 147 (1992) (holding the court did not err in refusing to charge
involuntary manslaughter where the defendant intentionally fired a gun and there
was no evidence of mere criminal negligence); State v. Craig, 267 S.C. 262, 269,
227 S.E.2d 306, 310 (1976) (holding the court did not err in refusing to charge
involuntary manslaughter where the defendant claimed he only meant to shoot over
the victim's head).

2. We hold the trial court did not abuse its discretion in its explanation of malice
and intent in answering the jury's question because the jury charge as a whole
contained the correct definition of malice and the trial court did not tell the jury
that intent only applied to attempted murder. See Mattison, 388 S.C. at 479, 697
S.E.2d at 584 ("An appellate court will not reverse the trial [court]'s decision
regarding a jury charge absent an abuse of discretion."); State v. Brandt, 393 S.C.
526, 549, 713 S.E.2d 591, 603 (2011) ("In reviewing jury charges for error, we
must consider the court's jury charge as a whole in light of the evidence and issues
presented at trial." (quoting State v. Adkins, 353 S.C. 312, 318, 577 S.E.2d 460,
463 (Ct. App. 2003))). Although the trial court did not include the word "total"
when it used the language "disregard for human life" in answering the jury's
question, the original charge stated that "[m]alice may be inferred from conduct
showing a total disregard for human life" and the trial court provided the written
charges to the jury; accordingly, when viewed as a whole, the jury charge
contained the correct definition and adequately covered the law. See id. at 549,
713 S.E.2d at 603 ("A jury charge is correct if, when the charge is read as a whole,
it contains the correct definition and adequately covers the law." (quoting Adkins,
353 S.C. at 318, 577 S.E.2d at 464)). Furthermore, although Davis contends the
trial court informed the jury that intent only applied to attempted murder, the
record reflects the trial court was briefly interrupted by a juror, and the trial court's
full statement indicated "specific" intent only applied to attempted murder, not that
intent only applied to attempted murder.

3. We hold Davis waived the issue of quashing the indictment because he did not
make a motion to do so. Although Davis opposed the State's request to amend the
indictment and stated his failure to agree with the State did not mean he would not
"have a motion to quash" before trial, he never moved to quash the indictment and
the trial proceeded. See State v. Gentry, 363 S.C. 93, 101, 610 S.E.2d 494, 499
(2005) ("[I]f an indictment is challenged as insufficient or defective, the defendant
must raise that issue before the jury is sworn in and not afterwards."); S.C. Code
Ann. § 17-19-90 (2014) ("Every objection to any indictment for any defect
apparent on the face thereof shall be taken by demurrer or on motion to quash such
indictment before the jury shall be sworn and not afterwards."); State v. Dunbar,
356 S.C. 138, 142, 587 S.E.2d 691, 693 (2003) ("In order for an issue to be
preserved for appellate review, it must have been raised to and ruled upon by the
trial [court].").

AFFIRMED. 1

WILLIAMS, C.J., and KONDUROS and TURNER, JJ., concur.

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