THE STATE OF SOUTH CAROLINA In The Court of Appeals

The State, Respondent,

v.

Patrick O'Neil McGo wan, Appellant.

Appellate Case No. 2016-001220

Appeal From Laurens County
Donald B. Hocker, Circuit Court Judge

Opinion No. 5719
Heard March 17, 2020 – Filed April 22, 2020

AFFIRMED IN PART AN D REVERSED IN PART

Appellate Defende r Joanna Katherine Delany, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General William Frederick Schumacher, IV, both of Columbia; and Solic itor David Matthew Stumbo, of Greenwood, all for Respondent.

GEATHERS, J.: Appellant Patric k O'Neil McGowan seeks reversal of his convictions for four counts of first degree assault and battery. Appellant argues the circuit court erred by failing to direct a ve rdict on the indictment referencing a child

victim because there was no evidence show ing Appellant's knowledge of the child's presence inside the home into which Appe llant fired gunshots. Appellant also arguesthe circuit court erred by declining to instru ct the jury that the State was required to prove specific intent as to each victim. We affirm in part and reverse in part. 1

FACTS/PROCEDURAL HISTORY

On March 31, 2012, John Glenn and hi s wife, Sarah Irby, hosted a birthday party for their four-year-old granddaughter (Child) at their mobile home on Boyd

Road in Laurens. In the ea rly evening, after the birthday party concluded, the couple

hosted a cookout for friends and neighbors. Appellant, who was related to one of the neighbors, attended the cookout and star ted arguing with Glenn. At this time, Irby and Child were inside the home. As soon as Irby heard the argument, she went outside and brought Glenn back inside with her. On his way into the home, Glenn asked Appellant to leav e the premises.

Irby's daughter, Tiffany Garrett, who had been acquainted with Appellant and saw him at the cookout, testified that sh e was standing by the porch of the home when she saw Glenn and Appellant arguing . She also stated that when Glenn subsequently went inside the home, Appellant, who was a ngry and appeared intoxicated, started walking toward the road and shooting a gun. At that time, she thought that Appellant was shooting into the air. However, bullets flew into Glenn's home, which was below st reet level.

One bullet went into the bathroom wher e Irby was at the time. Another bullet went into the bedroom used by Child and Garrett, who were both living with Glenn and Irby. Child was asleep in the bedroom at that time. A third bullet went through the living room wall, flew past Glenn, a nd shattered a television screen. Irby ran outside and saw Appellant, who was carry ing a gun, fleeing the premises. Garrett later identified Appellant fro m a photographic lineup.

On August 3, 2012, Appellant was indicted for f our counts of attempted murder. On May 31 through June 2, 2016, the circuit c ourt conducted a trial during which Irby identified Appellant. At the c onclusion of the State's case, the circuit court denied Appellant's dir ected verdict motion but indicat ed that it was inclined to

1 Because we reverse the conviction pertai ning to the child victim on the ground of specific intent, we need not address Appe llant's argument that the evidence of only three gunshots limited his possible convictions to three counts. See Futch v. McAllister Towing of Georgetown, Inc. , 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (providing that an a ppellate court need not addr ess remaining issues when resolution of a prior issue is dispositive).give a jury instruction on the lesser-incl uded offense of first degree assault and battery and to possibly grant a renewed dir ected verdict motion as to Child after the

conclusion of the defense's case and any possible rebuttal by the State.

When Appellant renewed his directed verdict motion, the presiding judge

indicated he would take the matter under a dvisement and asked defense counsel to remind him the next morning to place his ru ling on the record. Ho wever, the record

reflects neither a reminder from counsel nor an express ruling from the circuit court on the following morning. The circuit cour t instructed the jury on both attempted murder and first degree assau lt and battery as defined in section 16-3-600(C)(1)(b)(i) of the South Carolina Code (2015).

At the trial's conclusion, the jury found Appellant guilty of four counts of first degree assault and battery. The circuit court sentenced Appellant to seven and onehalf years of imprisonment as to each of th e four victims, with two of the sentences to run consecutively and the other two to r un concurrently with each other and with

the two consecutive sentences. This appeal followed.

ISSUES ON APPEAL

1. Was there sufficient evidence of Appellant 's specific intent to harm Child?

2. Did the circuit court err by declining to instruct the jury that specific intent had to be proven as to each victim?

STANDARD OF REVIEW

Directed Verdict

"When ruling on a motion for a directed verdict, the [circuit court] is

concerned with the existence of evidence, not its weight." State v. Butler , 407 S.C. 376, 381, 755 S.E.2d 457, 460 (2014) (quoting State v. Wiggins , 330 S.C. 538, 545, 500 S.E.2d 489, 493 (1998)). Likewise, on appeal, "this [c]ourt must affirm the [circuit] court's decision to submit the case to the jury" when "the [S]tate has presented 'any direct evidence or any subs tantial circumstantial evidence reasonably tending to prove the guilt of the accused.'" State v. Hepburn , 406 S.C. 416, 429, 753 S.E.2d 402, 409 (2013) (quoting State v. Cherry , 361 S.C. 588, 593, 606 S.E.2d 475, 478 (2004)). In making this determination, "this [c]ourt views the evidence and all reasonable inferences in the light most favorable to the State." State v. Pearson , 415S.C. 463, 470, 783 S.E.2d 802, 806 (2016) (quoting Butler , 407 S.C. at 381, 755 S.E.2d at 460).

Jury Instruction

An appellate court will not reverse a ci rcuit court's decision regarding a jury

instruction unless there is an abuse of discretion. State v. Cottrell , 421 S.C. 622, 643, 809 S.E.2d 423, 435 (2017). "An abuse of discretion occurs when the [circuit] court's ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support." State v. Pittman , 373 S.C. 527, 570, 647 S.E.2d 144, 166–67 (2007).

LAW/ANALYSIS

I. Directed Verdict

Appellant argues the circuit court erre d by failing to direct a verdict on the indictment referencing Child because th ere was no evidence showing Appellant's knowledge of Child's presence inside Glenn' s home, and thus, there was no showing of Appellant's specific intent to injure Child. We agree.

A. Preservation

The State argues that the question of whether the circuit court should have granted Appellant's directed verdict motion is not preserved for review because the

circuit court never ruled on the motion. We disagree.

At trial, the circuit court denied Appe llant's initial directed verdict motion as

to all four indictments. The circuit c ourt added that once Appellant renewed the motion, the court might grant it as to th e indictment referencing Child. When Appellant renewed the motion, the presid ing judge advised counsel that he was taking the motion under advisement and as ked Appellant's counsel to remind him "in the morning to put [his] ruling on the r ecord." The record has no further specific reference to the motion. Nonetheless, dur ing jury instructions, the circuit court directed the jury to determine whethe r Appellant was guilty or not guilty of attempted murder or first degr ee assault and battery as to all four indictments. Therefore, the circuit court implicitly deni ed Appellant's renewed directed verdict

motion.

B. Specific IntentAppellant argues that first degree assault and battery is a specific intent crime and there was no evidence of Appellant's specific intent to harm Child because Appellant had no knowledge that Child wa s inside Glenn's home when Appellant fired the gunshots. 2 Section 16-3-600(C)(1)(b) provides , in pertinent part, "A person

commits the offense of assault and batte ry in the first de gree if the person unlawfully . . . offers or attempts to inju re another person with the present ability to do so, and the act . . . is accomplished by means likely to produce death or great bodily injury . . . ." 3 As to the "attempt" alterna tive of section 16-3-600(C)(1)(b), our case law provides,

A person guilty of attempt is punishable as if he had committed the underlying offense. To prove attempt, the State must prove that the defendant had the specific intent to commit the underlying offense, along with some overt

act , beyond mere preparation, in furtherance of the intent.

In the context of an attempt crime, specific intent

means the defendant intend ed to complete the acts comprising the underlying offense.

State v. Reid , 393 S.C. 325, 329, 713 S.E.2d 274, 276 (2011) (citations omitted); see also State v. King , 422 S.C. 47, 56, 810 S.E.2d 18, 22 (2017) (stating that attempted murder requires the specific intent to kill); State v. Sutton , 340 S.C. 393, 397, 532 S.E.2d 283, 285 (2000) ("In th e context of an 'attempt' crime, specific intent means that the defendant consciously intended the completion of acts comprising the choate offense. In other words, the completion of such acts is the defendant's purpose.").

At trial, the State conceded that it woul d be difficult to show specific intent as to Child because the testimony indicated A ppellant arrived at Glenn's home "around

2 Appellant also argues the State could not s how specific intent by application of the

transferred intent doctrine because Child was uninjured. We note that during arguments on Appellant's initial directed verdict motion, the State relied on the doctrine of transferred intent, but when the circuit court ruled on the motion, it stated that it was not relying on the doctrine.

3 Subsection (C)(3) provides that first degr ee assault and battery is a lesser-included offense of assault and battery of a high and aggravated nature, as defined in subsection (B)(1), and attempted murder, as defined in section 16-3-29 of the South Carolina Code (2015).7:00 [p.m.] and the children's party ended around 5:00 [p.m.]." Further, the record does not reveal any indicators that would ha ve alerted Appellant to the presence of

Child inside the home. This lack of evid ence that Appellant specifically intended to injure Child required the circuit court to direct a verdict for Appellant as to the indictment involving Child. Therefore, we reverse Appellant's first degree assault and battery conviction as to Child.

II. Jury Instruction

Appellant asserts the circuit court erred by declining to instruct the jury that the State was required to prov e specific intent as to ea ch victim. The State argues

that the circuit court's instructions to the jury were equiva lent to Appellant's requested instruction and, therefore, the ci rcuit court's verbal indication that it was denying Appellant's request was meaningless. We agree with the State.

During the charge conference, Appella nt requested the circuit court to reference each victim listed in the respec tive indictments in its jury charges on the specific intent element of both attempted mu rder and first degree assault and battery. The circuit court stated that it was denyi ng the request. Howeve r, the circuit court included the following statements in its jury instructions:

The indictments in this case allege four counts of attempted murder against the Defendant, attempted murder of Sarah Irby, attemp ted murder of John Glenn, attempted murder of Tiffa ny Garrett, and attempted murder of [Child]. Each indi ctment charges a separate and

distinct offense because each indictment involves a separate alleged victim. You mu st decide each indictment separately based upon the evidence and law applicable to it uninfluenced by your decision as to any other

indictment. The Defendant ma y be convicted or acquitted on any or all of the indictments. You will be asked to write a separate verdict of guilt y or not guilty for each indictment. And I will explain that to you at the conclusion of my charge.

. . .

Now, criminal intent can either be specific or general.

General intent crimes are cr imes [that] only require thedoing of some act and do not require that any specific result was intended by the Defe ndant. Criminal intent only requires that the pr[o]scribed act taken by the Defendant be voluntary in natu re. A specific intent crime requires that the Defendant had the intent to cause a particular result or that th e Defendant had the specific intent in committing the act. A person acts with specific intent when his conscious obj ective is to cause the specific result pr[o]scribed by the stat ute defining the events.

. . .

. . . A specific intent to k ill is an element of attempted murder, which must be proven by the State beyond a

reasonable doubt.

Now, ladies and gentlemen, if you find that the State has failed to prove beyond a reasonable doubt that the Defendant committed attempted murder on any of the four indictments, then you may consider whether the State has proven beyond a reasonable doubt the lesser included charge of assault and battery in the first degree. A person commits the offense of assault and battery in the first degree if the person unlawfully offers or attempts to injure another person with the present ability to do so and the act is accomplished by means likel y to produce death or great bodily injury.

. . . A specific intent is an element of assault and battery first degree [that] must be prove n by the State beyond a

reasonable doubt.

Now, in just a moment, I'm going to come down to the jury box and explain the verdict form that I have prepared to assist you in your delibera tions and in reaching your

verdict. As to each indi ctment, your verdict must be unanimous, an agreement by th e 12 of you. Once you have reached a verdict as to each indictment, then you will notify the bailiff that a verd ict has been reached.. . .

And [the verdict form is] divided up into four sections.

One section for each indictment. . . . First indictment involves Sarah Irby. You ma ke a determination whether or not the Defendant is guilt[ y] or not guilty as to the attempted murder. If you determ ine that the Defendant is guilty, then you would go to the second indictment and conduct the same analysis. However, if you believe that the State has failed to meet its burden of proof by proving to you each and every element of attempted murder as to Sarah Irby, then you can go to the lesser included offense of assault and battery in th e first degree and determine whether or not the Defendant is not guilty or guilty. That same analysis will apply to ea ch indictment. The next indictment involves John Glenn. The same analysis. The third indictment, Tiffany Garrett, same analysis. The fourth indictment is involving [Child]. Okay.

When the jury has reached a unanimous verdict and you mark the appropriate line, put your initials, okay, to

indicate the verdict as to each indictment.

(emphases added). These statements as a whole satisfy Appellant's request to link the specific intent element to a particular victim, 4 especially the statements,

[I]f you believe that the State has failed to meet its burden of proof by proving to you each and every element of attempted murder as to Sarah Irby , then you can go to the lesser included offense of assault and battery in the first degree and determine whether or not the Defendant is not guilty or guilty. That same analysis will apply to each

indictment

.

4 Appellant maintains on page 7 of his brie f "[h]ad the jury been properly charged that the state was required to prove intent as to each victim beyond a reasonable doubt, there is a reasonable likelihood th at the jury would have found [Appellant] not guilty of one or more of the charges."(emphases added). The jury instruction advised the jury that specific intent was a required element of first degree assault and ba ttery and that the jury had to apply the same analysis to each respective indictme nt referencing the four victims by name when determining whether the state had pr oved the elements of either attempted murder or first degree assa ult and battery beyond a reasona ble doubt. Therefore, the

instruction as a whole covered A ppellant's desired instruction. See State v. Marin

, 415 S.C. 475, 482, 783 S.E.2d 808, 812 (2016) ("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. Brandt , 393 S.C. 526, 549, 713 S.E.2d 591, 603 (2011))); id. ("The substance of the law is wh at must be instructed to the jury, not any particular verbiage." (quoting State v. Smith , 315 S.C. 547, 554, 446 S.E.2d 411, 415 (1994))).

CONCLUSION

Accordingly, we reverse Appellant's first degree assault and battery conviction as to Child but affirm Appellant's remaining convictions.

AFFIRMED IN PART AN D REVERSED IN PART.

LOCKEMY, C.J., and HEWITT, J., concur.