# The Supreme Court of South Carolina

The State, Petitioner,

v.
Francis Larmand, Respondent.

Appellate Case No. 2013-001143

ORDER

The petition for rehearing is granted on allegations 1 and 4 in the petition, and denied as to all other allegations in th e petition. This Court dispenses with any further briefing and substitutes the attached opinion for the opinion previously filed in this matter. Contrary to the pos ition taken by respondent in the petition for rehearing, the remand ordered in the subst ituted opinion is to a panel of the South Carolina Court of Appeals and not to the Court of Appeals en banc

. As to petitioner's motion to revoke bond, this Court declines to rule on this motion. Instead, this motion should be considered by the Court of Appeals once this matter is returned to that Court.

s/ Jean H. Toal C.J.

s/ Costa M. Pleicones J.

s/ Donald W. Beatty J.

s/ John W. Kittredge J.

s/ Kaye G. Hearn J.

Columbia, South Carolina December 23, 2015THE STATE OF SOUTH CAROLINA In The Supreme Court

The State, Petitioner,

v.
Francis Larmand, Respondent.

Appellate Case No. 2013-001143

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal From York County William H. Seals, Jr., Circuit Court Judge

Opinion No. 27562 Heard February 3, 2015 – Refiled December 23, 2015

REVERSED

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Sa lley W Elliott and Senior Assistant Deputy Attorney Ge neral Deborah R.J. Shupe, all of Columbia, for Petitioner.

C. Rauch Wise, of Gr eenwood, for Respondent.

CHIEF JUSTICE TOAL: The State appeals the court of appeals' decision in State v. Larmand , 402 S.C. 184, 739 S.E.2d 898 (Ct. App. 2013), reversing the trial court's denial of Frank Larmand's (Res pondent) motion for a directed verdict oncharges for lynching, conspiracy, and poi nting and presenting a firearm. We

reverse.

F ACTS /P ROCEDURAL B ACKGROUND 1

Respondent and his wife (collectively, the Larmands) are residents of Kannapolis, North Carolina. Together, they own a branch of Pop-A-Lock, a national locksmith franchi se company providing customers with roadside assistance and locksmith services, and operate their branch in and around the Charlotte metropolitan area. Ryan Lochba um worked at the Larmands' branch of Pop-A-Lock for several years until his termination in Oct ober 2008 for misconduct and providing unauthorized services to customers.
Approximately seven months after Loch baum's termination, the Larmands became suspicious that he and one of th eir current employees, Mike Taylor, were conspiring to defraud Pop-A-Lock. Spec ifically, the Larmands believed that Taylor would occasionally relay a custom er's location to Lochbaum, who would then place a removable magnetic sign on hi s vehicle and masquerade as the Pop-ALock locksmith. According to the Larma nds, after the customer paid Lochbaum for "Pop-A-Lock's" services , Taylor and Lochbaum woul d split the money between themselves, and Taylor would inform the La rmands that the customer had left the designated location be fore he arrived.
To confirm their suspicions, the Larm ands set up a "mystery shopper call" for Taylor. During the call, Respondent's brother-in-law, Leo Lemire, posed as a customer needing locksmith services at the Charlotte Knights' former stadium (Knights' Stadium) located in Fort Mill, South Carolina. Respondent and Lemire waited at the stadium in the hope of catching Taylor and Lochbaum.
Ultimately, neither Taylor nor Lochba um responded to the telephone call. Therefore, around midnight, Respondent a nd Lemire drove to Lochbaum's house in Rock Hill, South Carolina, to investig ate further, and potentially confront Lochbaum. 2 The two men parked at least one- quarter mile away from Lochbaum's house, despite the ample street parking availa ble closer to the house. Further, they

1 Because this appeal involve s Respondent's motion for a di rected verdict, we view the evidence in the light most favorable to the State. State v. Walker , 349 S.C. 49, 53, 562 S.E.2d 313, 315 (2002).

2 At trial, a police officer and Lochbaum testified that it take s approximately one

and-a-half hours to drive from Respondent's home in Ka nnapolis to Lochbaum's home in Rock Hill.parked their vehicle facing the ne ighborhood's sole entrance and exit.

Meanwhile, Lochbaum and three of his neighbors—Mark Whittington, Devin Fivecoat, and Ron Lee—were soci alizing outside Lochbaum's house. Respondent, dressed in all-black clothing, approached the group and stood and stared silently, looking "edgy" and "agita ted." Eventually, Respondent stated he wanted to speak to Lochbaum, and Lochba um asked his neighbors to give them some privacy.
Respondent and Lochbaum began arguing loudly and pushing one another. Approximately one minute into the exch ange, Respondent broke eye contact with Lochbaum and looked toward the vacant , darkened field abutting Lochbaum's house. Lochbaum then saw Lemire (also wearing all-black clothing) approaching quickly and pointing a handgun at Lochbaum . Lemire said, "This is what you get when you fuck with my family," and pulled the hammer of the gun back.
Lochbaum seized the gun and began to struggle with Lemire. Respondent placed Lochbaum in a chokehold and atte mpted to pull him away from Lemire. Whittington, Fivecoat, and Lee, who had b een watching the exchange from several houses away, ran down the street and jumped into the fray in an effort to separate Lemire, Respondent, and Lochbaum. Lo chbaum's next-doo r neighbor, Jesse Harris, also heard the commotion and ran out to stop the fight. 3 Throughout the scuffle, Lemire screamed at everyone, "F-you, he's f'ing with my family, he's f'ing with my family."
Lochbaum, Whittington, Fivecoat, Lee, an d Harris were able to wrestle the gun away from Lemire and pull Respondent away from Lochbaum. Respondent and Lemire quickly left the scene, drivin g at approximately sixty miles per hour in a thirty-five mile per hour zone without illuminating the vehicle's headlights.
Ultimately, a grand jury indicted Respondent and Lemire for lynching, conspiracy, and pointing and presenting a fi rearm. At trial, Respondent moved for a directed verdict at the conclusion of the State's case. He argued that the State had failed to provide any testimony that the at tack on Lochbaum was premeditated, or that Respondent and Lemire jointly pl anned the attack. Rather, Respondent asserted he was merely speaking with Lo chbaum when Lemire appeared, and he only reacted to Lochbaum's "affirmative ac tion" of "jump[ing] on [] Lemire" to

3 During the struggle, Harris placed hi s finger between the gun's hammer and the gun to prevent it from being fired. At some point, the hammer of the gun "clicked" on Harris's finger, indicating that the gun would have discharged during the fight had Harris's finger not stopped the hammer.grab the gun. The trial court denied Respondent's motion, and the jury later convicted Respondent and Lemire of second- degree lynching, criminal conspiracy, and pointing and presenting a firearm.
The court of appeals reversed the tria l court's decision to deny Respondent's motion for a directed verdict. Larmand , 402 S.C. at 187, 739 S.E.2d at 900. Specifically, with respect to the lynching and conspiracy charges, the court of appeals found a complete lack of evidence of premeditati on or a common plan to assault Lochbaum. Id. at 190–94, 739 S.E.2d at 901–03. With respect to the firearm charge, the court of appeals f ound that the State did not present any evidence of a conspiracy between Res pondent and Lemire, and it was undisputed that Respondent never had possession of the gun. Id. at 194, 739 S.E.2d at 903–04. Therefore, the court of appeals reversed all three of Respondent's convictions. Id. at 194, 739 S.E.2d at 904. 4

We granted the State's petition for a writ of certiorari to review the court of appeals' decision.

I SSUE
Whether the court of appeals applied the correct standard of review in considering the trial court's denial of Respondent's directed verdict motion?

S TANDARD OF R EVIEW
"In criminal cases, the appellate court sits to review errors of law only." State v. Baccus , 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). A court is "bound by the trial court's factual findings unl ess they are clearly erroneous." Id.

A NALYSIS
"A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged." State v. Walker , 349 S.C. 49, 53, 562 S.E.2d 313, 315 (2002). In reviewing a defendant's motion for a directed verdict, the trial judge is only concerned with the existe nce of evidence, not with its weight. State

v. Butler , 407 S.C. 376, 381, 755 S.E.2d 457, 460 (2014) (citation omitted).
On appeal from the denial of a directed verdict, appellate courts must view the evidence and reasonable inferences in th e light most favorable to the State. Id.

4 Because the court of appeals found these issues dispositive, it did not reach the remainder of Respondent's arguments on appeal.If there is either any dir ect evidence or any substa ntial circumstantial evidence reasonably tending to prove the defendant's guilt, appellate courts must find that the trial judge properly submitted the case to the jury. State v. Cherry , 361 S.C. 588, 593–94, 606 S.E.2d 475, 478 (2004); see also Walker , 349 S.C. at 53, 562 S.E.2d at 315 ("When a motion for a directed verdict is made in a criminal case where the State relies exclusively on circ umstantial evidence, the trial judge is required to submit the case to the jury if there is any substa ntial evidence which reasonably tends to prove the guilt of the accused, or from which his guilt may be fairly and logically deduced." (citation omitted)).
In pursuing a lynching conviction, th e State must produ ce at least some evidence that two or more persons had a common, premeditated intent to commit a joint act of violence on the person of another. See S.C. Code A nn. § 16-3-220 (2003) (defining second-degree lynching as "[a]ny act of violence inflicted by a mob upon the body of another person and from which death does not result") (recodified as amended at S.C. Code Ann. § 16-3-210( C) (Supp. 2014)); S.C. Code Ann. § 16-3-230 (2003) (defining a mob as "the assemblage of two or more persons, without color or authority of la w, for the premeditated purpose and with the premeditated intent of committing an act of violence upon the person of another") (recodified at S.C. Code Ann. § 16-3-210(A) (Supp. 2014)); State v. Smith , 352 S.C. 133, 137, 572 S.E.2d 473, 475 (C t. App. 2002). The premeditated intent to do violence may be formed eith er before or during the assemblage, but by definition cannot be spontaneous. Smith , 352 S.C. at 137, 572 S.E.2d at 475.

Moreover, "[t]o establish the existence of a conspiracy, proof of an express agreement is not necessary, and direct evidence is not essential, but the conspiracy may be sufficiently shown by circumstan tial evidence and the conduct of the parties." State v. Kelsey , 331 S.C. 50, 63, 502 S.E.2d 63, 70 (1998). 5 Because the crime of conspiracy is the agreement itsel f, the State need not show any overt acts in furtherance of the co mmon scheme or plan. State v. Wilson , 315 S.C. 289, 292, 294, 433 S.E.2d 864, 867, 868 (1993 ). Nonetheless, substa ntive crimes committed in furtherance of the conspiracy ma y constitute circumstantial evidence from which a jury could infer the existence of the conspiracy, its object, and scope. Id.
At issue here is whether the State pr esented any evidence demonstrating a

5 See also S.C. Code Ann. § 16- 17-410 (2003 & Supp. 2014) (defining a criminal conspiracy as "a combination between tw o or more persons for the purpose of accomplishing an unlawful object or lawful object by unlawful means"); State v. Gunn , 313 S.C. 124, 134, 437 S.E.2d 75, 80 (199 3) (stating that the "gravamen of the offense of conspiracy is the agreem ent or combination," not merely a common objective between similarly situated people (citations omitted)).premeditated intent on the part of Res pondent to assault Lochbaum (for the lynching charge), or that Respondent and Lemire entered into an agreement to perpetrate the assault (fo r the conspiracy charge). 6 The State contends that the court of appeals applied an improper standa rd of review in conducting its inquiry. Specifically, the State argues that the c ourt of appeals expressly credited the defense evidence and made credibility determinations, thereby erroneously substituting its own judgment for that of the trial court and th e jury. We agree.
While the court of appeals should have considered the evid ence in the light most favorable to the State, it instead primarily cited to Respondent's and Lemire's testimony, including their explan ations for their actions. See, e.g.

, Larmand , 402 S.C. at 191–92, 739 S.E.2d at 902; id. at 194, 739 S.E.2d at 903. In doing so, the court of appeals incorrectly minimized the circumstantial evidence the State presented regarding premeditation and an agreement between Respondent and Lemire.
Specifically, the State demonstrated : (1) Respondent and Lemire lived approximately one-and-a-ha lf hours away from Lochba um's house; (2) Respondent and Lemire arrived at Lochbaum's ne ighborhood late at night, unannounced; (3) Respondent and Lemire wore all-black clothing; (4) Respondent and Lemire parked their vehicle over one-quarter m ile away from Lochbaum's house, facing the sole entrance and exit to the neighborhood, despite ample street parking near Lochbaum's house; (5) Respondent and Le mire approached Lochbaum's house on foot, rather than conducting a "drive by" to look for incriminating evidence of Lochbaum's involvement in the scheme to defraud Pop-A-Lock, such as the magnetic sign on Lochbaum's vehicle; (6 ) Respondent was "edgy" and "agitated" when he approached Lochbaum's house, a nd stood and stared silently at Lochbaum and his neighbors; (7) Respondent broke o ff arguing with and pushing Lochbaum to observe Lemire's appro ach from the adjoining vacant, darkened lot; (8) Lemire approached Respondent and Lochbaum a mere one minute after Whittington, Fivecoat, and Lee departed, despite parkin g at least one-quarter mile away; (9) Lemire approached from a va cant, darkened lot rather than from the lit street or sidewalk; (10) upon his approach, Lemire immediately pointed the gun at Lochbaum and drew the hammer of the gun back; (11) Lemire told Lochbaum, "This is what you get when you fuck with my family," and later during the altercation refused to let go of his gun because Lochbaum was "f'ing with [his] family;" (12) Respondent never confronted Le mire or tried to get him to lower the weapon or return to their vehicle; and (13) Respondent and Lemire drove away

6 We need not address the firearm charge separately, as its va lidity rises and falls on the existence of a conspiracy under the "h and of one is the hand of all" theory.together at a high rate of speed without illuminating their vehicle's headlights.
Although Respondent presented plausible explanations for each of these facts, our duty is not to weigh the pl ausibility of the parties' competing explanations. Rather, we mu st assess whether, in the li ght most favorable to the State, there was substantial circumstantial evidence from which the jury could infer Respondent's guilt. Cf. Jackson v. Virginia , 443 U.S. 307, 317 n.9 (1979) (citing Holland v. United States , 348 U.S. 121, 140 (1954) (rejecting the contention that circumstantial evidence must exclude every hypothesis but that of guilt)). Given the deferential standard of review, we find the State presented sufficient circumstantial evidence of premeditation a nd a common plan or scheme such that the trial judge properly denied Respondent 's motion for a directed verdict. Accordingly, the court of appeals erre d in reversing Respondent's convictions.

C ONCLUSION
For the foregoing reasons, the decision of the court of appeals is reversed. However, because the court of appeal s did not address the remainder of Respondent's arguments on appeal, we rema nd the matter to the court of appeals for further action not inconsistent with this opinion.

REVERSED.

PLEICONES, BEATTY, KITTREDG E and HEARN, JJ., concur.