THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent, 

v.

Olandio R. Workman, Appellant.

Appellate Case No. 2018-001769

Appeal From Greenville County

Alex Kinlaw, Jr., Circuit Court Judge

Opinion No. 5922

Heard October 14, 2021 – Filed July 13, 2022

REVERSED AND REMANDED

Appellate Defender Kathrine Haggard Hudgins, of 

Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant 

Attorney General Joshua Abraham Edwards, of 

Columbia; and Solicitor William Walter Wilkins, III, of 

Greenville, for Respondent.

KONDUROS, J.: Olandio R. Workman appeals his conviction for criminal 

domestic violence of a high and aggravated nature (CDVHAN), arguing the trial 

court erred in refusing to instruct the jury on the definition of second-degree 

criminal domestic violence (CDV) and moderate bodily injury as part of its 

first-degree CDV jury instruction. We reverse and remand.

FACTS/PROCEDURAL HISTORY
A Greenville County grand jury indicted Workman for CDVHAN, kidnapping, and 

possession of a weapon during the commission of a violent crime for events 

occurring between August 27 and 29, 2016.

At trial, the victim, Workman's wife, testified Workman returned home on a 

Saturday evening and accused her of cheating on him. She stated he demanded she 

turn over her cellphone, "repeatedly" slapped and punched her, and was 

"constantly smacking [her] in the face, hitting [her] . . . head, [and] punching [her] 

. . . arms." According to the victim, when she tried to explain, Workman would

"smack [her] again, or he'd punch [her] again, or choke [her], and throw [her] to 

the floor." The victim asserted this continued through the next day and night and 

Workman did not allow her to sleep or eat. The couple's two young children, who 

were two and six years old at the time, were in the home during this time. The 

victim testified she owned two firearms, which were registered in her name and 

were inside the home during this incident. She stated that during these two days, 

Workman "was holding [and] carrying [one of the firearms] around the house" to 

intimidate and threaten her. The victim explained that at one point, Workman 

struck her hand with a firearm.

The victim testified that before Workman left the home for work on Monday 

morning, he "was doing something outside." She stated that before he left, he 

warned her that their home would explode if she opened any of the doors or 

windows while he was gone. The victim stated she was unable to call for help 

because Workman had broken her cellphone and she was unable to leave because 

Workman took the car keys with him. Additionally, the victim provided that when 

Workman returned home on Monday evening, he continued physically assaulting 

her and told her to "shower because [she] was disgusting." The victim explained 

that when she exited the shower, Workman informed her that law enforcement was 

outside their home. She asserted Workman instructed her to apply makeup to 

cover her bruises and then lie "down in the bedroom with the kids and not make a 

sound." The victim stated that while she was in the bedroom, law enforcement 

repeatedly knocked on the door to the home and called out for her and Workman.

The victim explained she did not answer the door because she believed Workman 

was still inside their home and she was afraid he would hurt her or their children. 

Eventually, law enforcement entered the house, discovered the victim and her 

children inside, and determined Workman had fled the house through the back 

door or a window. The victim claimed she initially lied to law enforcement about 
how she got her injuries to avoid "mak[ing] it worse" in case Workman returned 

home.

After the State rested, Workman waived his right to testify and declined to present 

any other testimony or evidence. During a discussion as to the charges on which 

the trial court would instruct the jury, the State agree with Workman's request for a 

jury instruction on the lesser included offense of first-degree CDV. However, the 

State initially opposed Workman's request that the trial court define second-degree 

CDV and moderate bodily injury as part of its first-degree CDV jury instruction. 

Workman argued both definitions were necessary because the first-degree CDV 

statute indicates a person is guilty of first-degree CDV if the State proves 

second-degree CDV along with at least one of several aggravating circumstances. 

The State did not object to the court "explain[ing] what [second-degree CDV] is," 

but it opposed charging the jury on the law of second-degree CDV as a lesser 

included offense. Workman agreed. The trial court ultimately denied Workman's 

request because the court believed such an instruction would confuse the jury. 

Workman expressed his concern that the jury would come back with a question 

"about what is" second-degree CDV. The State responded that it would be

"appropriate . . . to maybe at that time explain to them." Workman replied that he 

did not "have a problem with doing it later." The court then indicated it would 

read the entire statute on first-degree CDV. The court further stated "it may come 

back and [the jury has] a question as to what second degree is. And we'll cross that 

bridge when we get to it." Workman later renewed his objection to the trial court's 

not defining second-degree CDV when instructing the jury on first-degree CDV.

During closing arguments, the State maintained the evidence demonstrated

Workman had beaten the victim, threatened her with a firearm in the presence of 

their minor children, and prevented the victim and their children from leaving their 

home for more than twenty-four hours. The State asserted these circumstances—

Workman's possession of a gun, the presence of minor children, and Workman's 

preventing the victim and their children from leaving the house—were sufficient 

for the jury to find Workman guilty of CDVHAN because they were 

"circumstances manifesting extreme indifference to the value of human life" under 

the CDVHAN statute. Workman argued the State failed to prove the victim 

suffered a great bodily injury because the State did not present any evidence she

went to a hospital or otherwise sought medical care. Workman also asserted the 

victim's decision to remain in the house when Workman left for work showed she 

did not believe Workman was going to kill her and she was not in fear of great 

bodily injury or death as required for CDVHAN.
The trial court instructed the jury on (1) the definition of "great bodily injury," 

(2) the CDVHAN statute, and (3) the entire first-degree CDV statute, without 

defining second-degree CDV. The court also instructed the jury on the kidnapping 

and possession of a weapon during the commission of a violent crime statutes. 

Workman then renewed his request for an instruction on the definition of 

second-degree CDV and moderate bodily injury, which the trial court denied.

The order of the charges on the jury's verdict form listed CDVHAN first and firstdegree CDV second. The trial court instructed the jury that if it found Workman 

guilty of the first charge, it did not need to make any decision for the second 

charge.

While deliberating, the jury submitted several questions to the trial court. 

Throughout the discussion of the trial court's responses to the jury's various

questions, Workman continuously renewed his request for jury instructions on the 

definitions of second-degree CDV and moderate bodily injury. When the jury 

asked about the difference between CDVHAN and first-degree CDV, the trial 

court responded by reading both the CDVHAN and first-degree CDV statute and 

definition of "great bodily injury" to the jury.

During deliberations, the jury requested a hard copy of the relevant statutes. While 

the court was discussing the request with Workman and the State, the jury 

submitted additional requests for the trial court to "Explain kidnapping" and to

"read what is bodily harm" and "state that fear of what." Over Workman's 

objection, the trial court responded to the jury's requests for clarification about the 

law by providing copies of the statutes that defined great bodily harm, CDVHAN, 

first-degree CDV, and kidnapping. 

The jury then asked the court to identify "the difference between peril [and] fear of 

great bodily injury." After discussing with counsel that the relevant statutes did 

not define the terms, the trial court told the jurors they should rely on their own 

judgment and common sense to answer the question. 

Finally, the jury submitted the following question to the court: "[CDVHAN], if one 

point is met, can you not look at [first-degree CDV]?" The State indicated it 

"interpret[ed] that as if [CDVHAN] has been met, can you, also, find him guilty of 

[first-degree CDV]?" Workman stated, "I'll take the opposite. I would say if one 

factor is met, can you still consider [first-degree CDV]? If they found one factor 

there, they could find [it] in both places." The court responded, "So the answer is 

'yes' or 'no'?" The State and Workman each responded, "I think the answer is yes." 
The court stated "the way [it] interpret[ted] this is since you've got [first-degree 

CDV] as a lesser included -- and that's what they're asking -- can they consider it? 

I think the answer is yes." After the court informed the jury the answer was "yes" 

and the jury returned to deliberations, Workman stated that after hearing the 

question again, he was concerned he may have misunderstood the jury's question. 

Workman stated he thought the jury meant "can we still look at it?"; the trial court 

agreed. The trial court did not give any further instructions.

The jury found Workman guilty of CDVHAN, kidnapping, and possession of a 

weapon during the commission of a violent crime. The trial court sentenced him to 

concurrent terms of twelve years' imprisonment for the CDVHAN conviction, 

fifteen years' imprisonment for the kidnapping conviction, and five years' 

imprisonment for the weapon possession conviction, with credit for 726 days of 

time-served. This appeal followed.

STANDARD OF REVIEW

"An appellate court will not reverse a [trial] court's decision regarding a jury 

instruction unless there is an abuse of discretion." State v. McGowan, 430 S.C. 

373, 379, 845 S.E.2d 503, 505 (Ct. App. 2020). "An abuse of discretion occurs

when the trial court's ruling is based on an error of law or, when grounded in

factual conclusions, is without evidentiary support." State v. Brooks, 428 S.C. 618, 

625, 837 S.E.2d 236, 239 (Ct. App. 2019) (quoting State v. Pittman, 373 S.C. 527, 

570, 647 S.E.2d 144, 166-67 (2007)).

LAW/ANALYSIS

I. First-Degree CDV Jury Instruction

Workman argues the trial court erred by refusing to define second-degree CDV 

and moderate bodily injury as part of its first-degree CDV jury instruction. He 

maintains the jury needed the definitions to determine his guilt because both terms 

are used in the first-degree CDV statute. He also asserts the court needed to 

provide the requested definitions because the degree of the injury inflicted on the 

victim was "a critical determining factor in this case." Workman contends the 

jury's submission of several questions demonstrated that the failure to define these 

terms caused the jury to "struggle[] with the difference between" CDVHAN and 

first-degree CDV. According to Workman, the trial court "effectively omitted 

[sub]section (B)(5) from the [first-degree CDV] statute and prevented the jury 

from properly considering the lesser included offense." We agree.
"[T]he purpose of jury instructions is to enlighten the jury as to what law is 

applicable to a certain state of facts in order that a just, fair[,] and proper verdict 

can be reached." State v. Peer, 320 S.C. 546, 554, 466 S.E.2d 375, 380 (Ct. App. 

1996). "The trial court is required to charge only the current and correct law of 

South Carolina." State v. Mattison, 388 S.C. 469, 479, 697 S.E.2d 578, 583 

(2010). "The evidence presented at trial determines the law to be charged to the 

jury." State v. Gilliland, 402 S.C. 389, 400, 741 S.E.2d 521, 527 (Ct. App. 2012). 

"The test for the sufficiency of a jury charge is what a reasonable juror would have 

understood the charge to mean." State v. Benjamin, 345 S.C. 470, 474, 549 S.E.2d 

258, 260 (2001).

"It is error for the trial court to refuse to give a requested instruction [that] states a 

sound principle of law when that principle applies to the case at hand, and the 

principle is not otherwise included in the charge." State v. Brandt, 393 S.C. 526, 

549-50, 713 S.E.2d 591, 603 (2011) (quoting State v. Williams, 367 S.C. 192, 195, 

624 S.E.2d 443, 445 (Ct. App. 2005)). In most cases, "if the purpose is to 

enlighten the jury regarding the issues before it," reading "the jury a statute 

defining a crime with which the defendant is not charged" is not error. State v. 

Leonard, 292 S.C. 133, 137, 355 S.E.2d 270, 273 (1987). "When, however, the 

inclusion of the non-charged offense has the effect of confusing the issues the jury 

must determine, the statute should not be read to the jury." Id.

The supreme court has held a trial court erred in failing to give a defendant's 

requested charge that was a correct statement of the law when the trial court's 

given charge did not adequately cover the substance of the defendant's request. 

State v. Kimbrell, 294 S.C. 51, 56, 362 S.E.2d 630, 632 (1987). In State v. Rye, the 

supreme court reversed a conviction after the trial court's instructions on the 

defenses raised addressed only one possible scenario when differentiating two 

defenses and another scenario also applied. 375 S.C. 119, 124-25, 651 S.E.2d 321, 

324 (2007). The court explained, "Though [the trial court's instruction] was most 

of the picture, it was not the complete picture." Id. at 123, 651 S.E.2d at 323. In

State v. Ezell, this court found instructing a jury on only one part of the statute 

defining an offense when the offense could be accomplished in multiple manners

would have been error. 321 S.C. 421, 426, 468 S.E.2d 679, 681 (Ct. App. 1996)

(per curiam). 

Section 16-25-20(A) of the South Carolina Code provides, "It is unlawful to: 

(1) cause physical harm or injury to a person's own household member; or (2) offer 
or attempt to cause physical harm or injury to a person's own household member 

with apparent present ability under circumstances reasonably creating fear of 

imminent peril." S.C. Code Ann. § 16-25-20(A) (Supp. 2021). A defendant is 

guilty of first-degree CDV if in addition to violating section 16-25-20(A), at least 

one of the following occurs: "(1) great bodily injury to the [defendant's] own 

household member result[ed] or the act [was] accomplished by means likely to 

result in great bodily injury"; (2) the defendant committed second-degree CDV 

while violating an order of protection; (3) the defendant was previously convicted 

of CDV at least twice during the ten years preceding the current offense; (4) the 

defendant used a firearm; or (5) the defendant committed second-degree CDV (a) 

"in the presence of, or while being perceived by[,] a minor;" (b) against a person 

the defendant knew or should have known was pregnant; (c) "during the 

commission of a robbery, burglary, kidnapping, or theft;" (d) "by impeding the 

victim's breathing or air flow; or" (e) using physical force or the threat of force to 

block the victim's access to a phone to prevent the victim from reporting a crime or 

injury. S.C. Code Ann. § 16-25-20(B) (Supp. 2021). A "[g]reat bodily injury" is a 

"bodily injury [that] causes a substantial risk of death or [that] causes serious, 

permanent disfigurement or protracted loss or impairment of the function of a 

bodily member or organ." S.C. Code Ann. § 16-25-10(2) (Supp. 2021). 

A defendant is guilty of second-degree CDV if in addition to violating section 

16-25-20(A), (1) moderate bodily injury resulted or the act was "accomplished by 

means likely to result in moderate bodily injury" to the defendant's own household 

member; (2) the defendant committed third-degree CDV while violating an order 

of protection; (3) the defendant was previously convicted of CDV once during the 

ten years prior to the current offense; or (4) the defendant committed third-degree 

CDV (a) "in the presence of, or while being perceived by, a minor;" (b) against a 

person the defendant knew or should have known was pregnant; (c) "during the 

commission of a robbery, burglary, kidnapping, or theft;" (d) "by impeding the 

victim's breathing or air flow; or" (e) using physical force or the threat of force to 

block the victim's access to a phone to prevent the victim from reporting a crime or 

injury. S.C. Code Ann. § 16-25-20(C) (Supp. 2021). A "[m]oderate bodily injury" 

is a physical injury that causes prolonged loss of consciousness, temporary or 

moderate disfigurement, or temporary loss of the function of a bodily member or 

organ, or an injury that requires the use of regional or general anesthesia during 

treatment or "results in a fracture or dislocation." S.C. Code Ann. § 16-25-10(4) 

(Supp. 2021). "Moderate bodily injury does not include one-time treatment and 

subsequent observation of scratches, cuts, abrasions, bruises, burns, splinters, or 

any other minor injuries that do not ordinarily require extensive medical care." Id. 
The trial court erred in its jury instruction on first-degree CDV by not defining 

second-degree CDV. Although the trial court's instruction was a correct statement 

of law, the jury likely would not have known what the trial court meant when it 

referenced second-degree CDV during the instruction. Because the trial court did 

not define second-degree CDV nor moderate bodily injury, the jury could not have 

understood subpart (A)(5) of the first-degree CDV statute. The evidence supported 

a jury instruction on the definition of second-degree CDV under section 

16-25-20(B)(5) of the first-degree CDV statute. Additionally, because seconddegree CDV uses the term moderate bodily injury, the court also should have given 

the statutorily provided definition of that term. Accordingly, the trial court erred in 

failing to give the definition of second-degree CDV.1

II. Harmless Error

The State argues that even if the trial court erred, any error was harmless because 

Workman cannot show prejudice as the jury found him guilty of the greater 

offense—CDVHAN2

—and never reached first-degree CDV. The State asserts 

 

1 In its respondent's brief, the State contends it "did not present evidence or argue 

that [the victim] suffered moderate bodily injury" at trial and "whether her injuries 

met the statutory definition of moderate bodily injury" is questionable. The State 

provides it based its case on the "use of a gun and other facts showing an extreme 

indifference to the value of human life that would cause [the victim] to fear death 

or great bodily injury." It argues it "did not rely on [moderate bodily injury 

combined with other aggravating factors] in the presentation of its case. Instead, 

[it] presented evidence that [Workman] used guns while committing domestic 

violence." It therefore maintains that any instruction as to second-degree CDV was 

irrelevant and not at issue. However, in closing arguments at trial, in addition to 

asserting that Workman had used a firearm, the State also asserted the offense 

occurred in the presence of a minor and during the commission of a kidnapping. 

The State referenced those two conditions first in relation to the circumstances 

manifesting extreme indifference to the value of human life needed for CDVHAN

and second as a method of proving first-degree CDV, under the basis of meeting 

the elements of second-degree CDV along with an aggravating factor.

Accordingly, the State argued at trial it met the elements in ways other than the use 

of a firearm, and we disagree with its assertion that the disputed instruction was 

irrelevant and not at issue.

2 First-degree CDV is a lesser included offense of CDVHAN. S.C. Code Ann. 

§ 16-25-20(B). A defendant is guilty of CDVHAN if the defendant violated 

section 16-25-20(A) and "(1) commit[ted] the offense under circumstances 
because the jury convicted Workman of CDVHAN, which it contends bears no 

relationship to moderate bodily injury or second-degree CDV, Workman has not

demonstrated reversible error. The State contends that "[b]ecause the jury found 

Workman guilty of the greater offense, any deficiency in the definition of the 

lower offense is harmless." We disagree.

"Errors, including erroneous jury instructions, are subject to harmless error 

analysis." State v. Burdette, 427 S.C. 490, 496, 832 S.E.2d 575, 578 (2019)

(quoting State v. Belcher, 385 S.C. 597, 611, 685 S.E.2d 802, 809 (2009), 

overruled on other grounds by Burdette, 427 S.C. at 504 n.3, 832 S.E.2d at 583

n.3). "In making a harmless error analysis, [this court's] inquiry is . . . whether the 

erroneous charge contributed to the verdict rendered." State v. Middleton, 407 S.C. 

312, 317, 755 S.E.2d 432, 435 (2014) (quoting State v. Kerr, 330 S.C. 132, 145, 

498 S.E.2d 212, 218 (Ct. App. 1998)). "When considering whether an error with 

respect to a jury instruction was harmless, we must 'determine beyond a reasonable 

doubt that the error complained of did not contribute to the verdict.'" Id. (quoting 

Kerr, 330 S.C. at 144-45, 498 S.E.2d at 218). 

 

manifesting extreme indifference to the value of human life and great bodily injury 

to the victim results;" "(2) commit[ted] the offense, with or without an 

accompanying battery and under circumstances manifesting extreme indifference 

to the value of human life, and would reasonably cause a person to fear imminent 

great bodily injury or death;" "or (3) violate[d] a protection order and, in the 

process of violating the order," committed first-degree CDV. S.C. Code Ann. 

§ 16-25-65(A) (Supp. 2021). The statute contains a nonexclusive list of 

"[c]ircumstances manifesting extreme indifference to the value of human life,"

including "(1) using a deadly weapon;" "(2) knowingly and intentionally impeding 

the normal breathing or circulation of the blood of a household member by 

applying pressure to the throat or neck or by obstructing the nose or mouth of a 

household member and thereby causing stupor or loss of consciousness for any 

period of time;" "(3) committing the offense in the presence of a minor;" "(4) 

committing the offense against a person he knew, or should have known, to be 

pregnant;" "(5) committing the offense during the commission of a robbery, 

burglary, kidnapping, or theft;" or "(6) using physical force" to block the victim's 

access to a phone to prevent the victim from reporting a crime or injury. S.C. Code 

Ann. § 16-25-65(D) (Supp. 2021). The statute defines deadly weapon as "any 

pistol, dirk, slingshot, metal knuckles, razor, or other instrument [that] can be used 

to inflict deadly force." S.C. Code Ann. § 16-25-10(1) (Supp. 2021).
The State relies on a case from the North Carolina Supreme Court in which that 

court found any error in the trial court's refusal to instruct the jury on voluntary 

manslaughter was harmless when the jury was instructed on the greater offenses of 

both first-degree and second-degree murder and convicted the defendant of firstdegree murder. State v. Bunnell, 455 S.E.2d 426, 430-31 (N.C. 1995). The 

supreme court relied on a previous case, State v. Shoemaker, 432 S.E.2d 314, 324 

(N.C. 1993), in which the trial court had instructed the jury on the same possible 

offenses and the defendant asserted he was entitled to a voluntary manslaughter 

charge. Bunnell, 455 S.E.2d 426 at 430. In Shoemaker, which in turn relied on a 

previous case, the supreme court had stated, "A verdict of murder in the first 

degree shows clearly that the jurors were not coerced, for they had the right to 

convict in the second degree. That they did not indicates their certainty of [the 

defendant's] guilt of the greater offense." 432 S.E.2d at 324 (quoting State v. 

Freeman, 170 S.E.2d 461, 465 (N.C. 1969)). The supreme court further stated, 

"The failure to instruct [the jurors] that they could convict of manslaughter 

therefore could not have harmed the defendant." Id. (quoting Freeman, 170 S.E.2d 

at 465). 

However, in State v. Wallace, the North Carolina Supreme Court found a jury's 

convicting a defendant of second-degree murder did not cure the trial court's "error

in failing to instruct [the jury] on involuntary manslaughter." 305 S.E.2d 548, 552 

(N.C. 1983). The court noted it had previously stated that "when there is evidence 

of guilt of the lesser charge, '[e]rroneous failure to submit the question of 

defendant's guilt of lesser degrees of the same crime is not cured by a verdict of 

guilty of the offense charged.'" Id. (alteration by court) (quoting State v. Wrenn, 

185 S.E.2d 129, 132 (N.C. 1971)). The court held that "in such case, it cannot be 

known whether the jury would have convicted of a lesser degree if the different 

permissible degrees arising on the evidence had been correctly presented in the 

court's charge." Id. (quoting Wrenn, 185 S.E.2d at 132). The court provided that 

"[t]his is also true when the jury returns a verdict convicting the defendant of the 

highest offense charged, even though the conviction could have been of an 

intermediate offense." Id. But, the court noted "an error in an instruction on 

manslaughter may be cured by a verdict of murder in the first degree when there 

was a proper instruction as to murder in the first degree and murder in the second 

degree." Id.; see also Freeman, 170 S.E.2d at 464 ("Ordinarily, when the jury is 

instructed that it may find defendant guilty of murder in the first degree, murder in 

the second degree, manslaughter, or not guilty, and the verdict is guilty of murder 

in the second degree, an error in the charge on manslaughter will require a new 

trial. In such event[,] it cannot be known whether the verdict would have been 

manslaughter if the jury had been properly instructed. But where, as here, the jury 
was properly instructed as to both degrees of murder and yet found defendant 

guilty of murder in the first degree rather than the second degree, it is clear that 

error in the charge on manslaughter was harmless.").

Our supreme court has reversed convictions in which the trial court failed to charge 

a lesser included offense supported by the evidence, thus implicitly rejecting the 

theory that a jury's conviction of a higher offense shows the error was harmless. 

However, the supreme court has not explicitly ruled on harmlessness in these 

situations. In State v. Lowry, "[t]he trial [court] instructed the jury as to murder 

and self-defense, but declined to charge the jury as to voluntary manslaughter. 

Lowry was found guilty of murder," and this court affirmed. 315 S.C. 396, 398, 

434 S.E.2d 272, 274 (1993). However, the supreme court reversed the conviction, 

finding the evidence supported a jury instruction on voluntary manslaughter. Id. at 

399-400, 434 S.E.2d at 274. The supreme court noted that this court had 

improperly relied on State v. Gandy3 "to support its conclusion that failure to 

charge voluntary manslaughter was harmless, because once the jury returned the 

verdict of murder, it had determined that the defendant had acted with malice, and 

thus could not have returned a verdict for the lesser offense." Lowry, 315 S.C. at 

399-400, 434 S.E.2d at 274. The supreme court noted it had previously rejected 

this reasoning in Casey, in which it had expressly overruled in part State v. 

Patrick,

4 and implicitly overruled Gandy, upon which Patrick relied. Lowry, 315 

 

3 State v. Gandy affirmed a defendant's conviction for murder when "[t]he trial 

[court] charged the jury on the law of murder and voluntary manslaughter" but not 

involuntary manslaughter. 283 S.C. 571, 573, 324 S.E.2d 65, 66-67 (1984), 

implicitly overruled in part by Casey v. State, 305 S.C. 445, 409 S.E.2d 391 

(1991). The court noted because the jury convicted the defendant of murder, it 

necessarily found malice present at the time of the killing and "both [voluntary and 

involuntary manslaughter] are distinguished from murder because the vital element 

of malice is missing." Id.

4

 In State v. Patrick, our supreme court affirmed a defendant's conviction for

murder even though the trial court incorrectly blended the elements of voluntary 

and involuntary manslaughter during the jury charge, when the court clearly 

instructed the jury that manslaughter was distinguished from murder by the 

absence of malice, because the jury, by returning a verdict of murder—which 

necessarily included a finding of malice—determined the defendant acted with 

malice and therefore "it could not have returned a verdict for manslaughter, 

voluntary or involuntary." 289 S.C. 301, 306, 345 S.E.2d 481, 484 (1986), 

overruled in part by Casey v. State, 305 S.C. 445, 409 S.E.2d 391 (1991), and 
S.C. at 399-400, 434 S.E.2d at 274. The Lowry court determined that "[e]ven 

though the jury was not convinced that Lowry acted in self-defense, the jury could 

have discerned, consistent with the evidence, that there was sufficient legal 

provocation and heat of passion to find Lowry guilty of voluntary 

manslaughter." Id. at 400, 434 S.E.2d at 274.

In Bunnell, the jury had the option of finding the defendant guilty of first-degree or 

second-degree murder or finding him not guilty, and the jury chose to convict of

first-degree murder. In Lowry, the jury's only options were to find the defendant 

guilty of murder or not guilty. However, the South Carolina Supreme Court 

seemingly rejected applying harmless error even in a situation like Bunnell in its 

Casey opinion. In Casey, the trial court "refused Casey's request to charge the law 

of involuntary manslaughter; [it] did, however, charge the law of murder,

voluntary manslaughter, accident[,] and self-defense. Casey was found guilty of 

murder . . . ." 305 S.C. at 446, 409 S.E.2d at 392. The supreme court initially 

affirmed the refusal to charge involuntary manslaughter on the basis that "[t]he 

jury returned a verdict of murder, which, necessarily embraced a finding of 

malice." Casey v. State, Op. No. 23402 (S.C. Sup. Ct. filed May 20, 1991) (Davis 

Adv. Sh. No. 13 at 13, 14-15), vacated, 305 S.C. 445, 446, 409 S.E.2d 391, 391

(1991). The initial opinion found because "the jury determined that Casey acted 

with malice, 'it could not have returned a verdict for manslaughter, voluntary or 

involuntary."' Id. (emphasis added by court) (quoting Patrick, 289 S.C. at 306, 345 

S.E.2d at 484). The initial opinion held, "Patrick and Gandy are consistent with 

decisions in a majority of jurisdictions [that] hold that, when a defendant has been 

convicted of murder, the correctness of instructions relating to manslaughter 

becomes immaterial." Id. at 15. The supreme court quoted an opinion from the 

Supreme Court of Kansas that stated "where the jury, under proper instruction, 

have found a defendant guilty of every element of the superior offense, erroneous 

instructions, or a total failure to instruct, with reference to an offense inferior in 

degree, and including less criminality cannot, logically, be said to have influenced 

the jury." Id. (emphasis added by court) (quoting State v. Metcalf, 452 P.2d 842, 

845 (Kan. 1969)). The court further quoted, "The failure of the court can only be 

said to be prejudicial to the defendant on the theory that the jury failed to fully 

comprehend the definition of the superior degree, or misconstrued and misapplied 

the law to the facts." Id. (quoting Metcalf, 452 P.2d at 845). Additionally, the 

court stated, "To indulge in such presumptions, even though we know that 

mistakes are made by juries and courts alike, is to overturn the whole theory of the 

 

overruled on other grounds by Brightman v. State, 336 S.C. 348, 520 S.E.2d 614 

(1999).
administration of justice." Id. (quoting Metcalf, 452 P.2d at 845). The vacated 

Casey opinion thus found the trial court's failure to instruct the jury on involuntary 

manslaughter did not prejudice the defendant. Id.

Subsequently, the supreme court vacated its prior opinion and substituted a new 

opinion in its place. Casey, 305 S.C. at 446, 409 S.E.2d at 391. The substituted

opinion reversed the trial court's refusal to instruct the jury on involuntary 

manslaughter. Id. at 447, 409 S.E.2d at 392. In the substituted opinion, the 

supreme court found "testimony supports an involuntary manslaughter charge. 

Accordingly, the trial court erred in refusing the charge, and the case is reversed 

and remanded for a new trial." Id. The substituted Casey opinion did not mention 

harmless error or discuss prejudice. 

Other states have expressly determined when the trial court has failed to charge a 

lesser included offense in similar situations such error is not harmless simply 

because the jury convicted a defendant of the higher offense.5 Many courts have 

recognized a distinction in finding harmless error that hinges on whether the jury is 

charged with an intermediate offense or not. A few states have gone further in 

noncapital6 cases to find even if the jury is not instructed on an intermediate 

 

5 Unlike the present case, most of these cases involve degrees of murder and 

manslaughter.

6 In Beck v. Alabama, the United States Supreme Court held unconstitutional in 

capital cases a statute that prohibited instructing the jury on lesser included offense 

instructions supported by the evidence. 447 U.S. 625 (1980). The Court noted

"forcing the jury to choose between conviction on the capital offense and acquittal" 

could "encourage the jury to convict for an impermissible reason—its belief that 

the defendant is guilty of some serious crime and should be punished," even when 

the jury has "some doubt with respect to an element" of the offense. Id. at 632, 

637, 642; see also Keeble v. United States, 412 U.S. 205, 212-13 (1973) (finding 

when "the jury was presented with only two options: convicting the defendant of 

[the charged offense] or acquitting him outright" it could not "say that the 

availability of a third option . . . could not have resulted in a different verdict" 

because when "one of the elements of the offense charged remains in doubt, but the 

defendant is plainly guilty of some offense, the jury is likely to resolve its doubts 

in favor of conviction"). In a subsequent case, the Court explained, "Because the 

scheme in Beck created a danger that the jury would resolve any doubts in favor of 

conviction, we concluded that it violated due process." Bobby v. Mitts, 563 U.S. 

395, 397 (2011) (citing Beck, 447 U.S. at 638, 643). However, the Beck Court 

expressly declined to address the issue of whether the Due Process Clause 
charge, the error can still be harmless.

7

 However, most states distinguish between 

the two situations. Additionally, some courts have seemed to find an error in 

failing to charge the jury with a lesser included offense supported by the evidence

can never be harmless.8 

One state that has distinguished these situations in several cases is Tennessee. The 

Tennessee Supreme Court has held, "Omitting an instruction on a lesser-included 

offense denies the jury the option of rejecting a greater offense in favor of a lesser 

offense." State v. Allen, 69 S.W.3d 181, 189 (Tenn. 2002). That court has further 

explained, "The omission precludes the jury from finding that the element 

distinguishing the greater offense from the lesser offense was not proven beyond a 

reasonable doubt and that the defendant is therefore guilty of the lesser offense." 

Id. at 189-90. The court noted it had found an "error may be harmless when the 

jury, by finding the defendant guilty of the highest offense to the exclusion of the 

immediately lesser offense, necessarily rejected all other lesser-included offenses." 

Id. at 189 (emphasis added) (citing State v. Williams, 977 S.W.2d 101, 106 (Tenn. 

1998)). However, the supreme court distinguished that situation from a situation in 

which the jury convicted the defendant of the only lesser included offense 

instructed, noting that in the latter case, "the jury . . . did not reject an intermediate 

offense." Allen, 69 S.W.3d at 189. The court has emphasized the Williams

analysis is used when the jury has rejected the immediately lesser offense but not 

when the jury was given no option to convict of any lesser included offense. 

 

mandates instructing the jury on lesser included offenses in noncapital cases. 

Beck, 447 U.S. at 638 n.14; see also Schad v. Arizona, 501 U.S. 624, 646 (1991) 

(differentiating Beck from a case in which "the jury . . . was given the option of 

finding [the defendant] guilty of a lesser included noncapital offense"), overruled 

on other grounds by Ramos v. Louisiana, 140 S. Ct. 1390 (2020). 7 "Some courts have gone even farther, finding harmless error even when no 

intermediate instruction was offered." Mata-Medina v. People, 71 P.3d 973, 983 

(Colo. 2003) (en banc); id. (noting the Hawaii Supreme Court did not require an

intermediate instruction based on the reasoning that "jurors are presumed to follow 

the court's instructions," to determine that in arriving at a verdict on the charged 

offense, the jury would not have reached the lesser offense the trial court 

erroneously failed to charge (quoting State v. Pauline, 60 P.3d 306, 331 (Haw. 

2002))). 

8 Commonwealth v. Covil, 378 A.2d 841, 843-44 (Pa. 1977) (finding the "denial of 

a voluntary manslaughter instruction [wa]s not harmless error simply because the 

jury returned a verdict of murder of the first degree" and had the option of 

convicting the defendant of murder of the second degree).
Moore v. State, 485 S.W.3d 411, 421-22 (Tenn. 2016). In Williams, the Tennessee 

Supreme Court pointed to numerous cases from that state as well as fifteen other 

states holding a trial court's error in not charging the jury on a lesser included 

offense was harmless when the jury had the option of convicting a defendant of an 

intermediate lesser included offense but instead convicted of the higher offense. 

977 S.W.2d at 106-08.

Colorado is another state that has examined similar situations. In Gallegos v. 

People, the Colorado Supreme Court held "[t]he refusal of the trial court to instruct 

the jury on the lesser degrees of the alleged crime is error, requiring. . . a new 

trial," when the trial court charged the jury only on first-degree murder and not

second-degree murder or manslaughter, despite evidence supporting the lesser 

offenses. 316 P.2d 884, 884 (Colo. 1957). In Mata-Medina, the Colorado 

Supreme Court noted Gallegos was not instructive in cases "in which the jury 

received an intermediate offense instruction and declined to convict on that 

charge." 71 P.3d at 980. The Colorado Supreme Court distinguished the situation 

in Gallegos from the one in which "[c]ourts across the country agree that jury 

convictions for a certain charged offense inherently constitute a rejection of offered 

lesser offenses, or findings that the defendant was necessarily guilty of lesser

included offenses." Id. at 982 (emphasis added); id. at 983 ("[C]ourts throughout 

the country that have considered the issue have concluded that a jury's rejection of 

an intermediate offense constitutes an implicit rejection of omitted lesser 

offenses." (emphasis added)); see also id. at 980, 983 (finding an error harmless 

when the "jury receive[d] an instruction on an intermediate offense and decline[d] 

to render a conviction on that offense" because by doing so, the jury implicitly 

rejected the uncharged lesser included offense).

The situation here is not exactly like Bunnell or Lowry. In the present case, the 

trial court charged a lesser included offense, but that charge was incomplete. 

Although, the jury had the options of finding Workman guilty of CDVHAN, guilty 

of the lesser included offense of first-degree CDV, or finding him not guilty, the 

instruction for first-degree CDV was incomplete. In the Lowry and Casey cases, if 

the supreme court had agreed with the harmless error theory expressed by the 

State, it could have found the error in giving the lesser jury instruction harmless 

and affirmed the convictions instead of reversing them. See also State v. Crosby, 

355 S.C. 47, 584 S.E.2d 110 (2003) (reversing a voluntary manslaughter 

conviction when the trial court denied the defendant's request to charge involuntary 

manslaughter); State v. Knoten, 347 S.C. 296, 309, 555 S.E.2d 391, 398 (2001) 

("Because there was evidence . . . supporting a conviction for the lesser included 

offense of voluntary manslaughter, we reverse Appellant's conviction [of 
murder]."). Because the supreme court has not opted to find the failure to give 

instructions harmless when the jury convicted of the higher offense, we will not 

find the error in failing to give a complete charge on the lesser offense harmless 

here. Accordingly, the trial court's error in giving an incomplete charge on firstdegree CDV was not harmless despite the jury's conviction of Workman of the 

offense of CDVHAN. 

CONCLUSION

The trial court erred in its jury charge on first-degree CDV by not defining seconddegree CDV and moderate bodily injury. Additionally, that error was not 

harmless. Accordingly, Workman's conviction for CDVHAN is 

REVERSED AND REMANDED.

HILL and HEWITT, JJ., concur.