THE STATE OF SOUTH C AROLINA In The Supreme Court

The State, Respondent,

v.

William C. (Billy) Sellers, Petitioner.

Appellate Case No. 2021

- 000910

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal f rom Edgefield County Eugene C. Griffith Jr., Circuit Court Judge

Opinion No. 2818 8

Heard March 30, 2023

– Filed January 17, 2024

AFFIRMED

Chief Appellate Defender Robert Michael Dudek, of

Columbia

, for Petitioner.

Attorney General Alan McCrory Wilson

, Deputy Attorney

General Donald J. Zelenka

, Senior Assistant Deputy Attorney General Melody Jane Brown , and Senior Assistant Attorney General J. Anthony Mabry

, of

Columbia ; and Solicitor Samuel R. Hubbard III, of Lexington, all for Respondent.JUSTICE FEW: The court of appeals affirmed Billy Sellers ' convict ion for murder arising from the brutal killing of Johnny Hydrick. We granted Sellers' petition for a

writ of certiorari to address two questions . First, did the trial court's jury instruction defining malice in part as " the intentional doing of a wrongful act without just cause

or excuse" shift the burden of proof to Sellers to provide justification or excuse for his wrongful acts, or was that portion of the instruction otherwise contrary to la w

. Second, did the State present evidence to support the trial court instructing the jury

as to Sellers' criminal liability under the doctrine of "the hand of one is the hand of

all." We affirm the court of appeals

.

I. Background

Johnny Hydrick

— disabled from a car accident

— was widely known in his

hometown of Trenton , South Carolina, to keep large supplies of Oxycodone on hand

to alleviate the pain associated with his disability. Hydrick often illegally sold Oxycodone to others , including Sellers. At tr ial, t he State presented strong evidence

Sellers personally murdered Hydrick in his home on October 1 0 , 2014, during the

course of burglarizing his home and robbing him of Oxycodone, guns, and cash. A pathologist testified the cause of death was "multiple blunt

- force injuries" to the head "due to a beating." While the State's primary theory was Sellers personally beat Hydrick to death, 1 the State presented the alternative theory Sellers was guilty under

the doctrine the hand of one is the hand of all because he and a man named "Gee" agreed to carry out the burglary and robbery, during the course of which Gee beat Hydrick to death or did so jointly with Sellers

.

The jury convicted Sellers of murder

. Because Sellers had a prior conviction from

Florida for burglary of a dwelling while armed with a deadly weapon, "an offense

that would be classified as a most serious offense" under subsection 17

- 25 -45(C)(1) of the South Carolina Code (Supp. 2023 ), the trial court was r equired to sentence him to life in prison without the possibility of parole pursuant to subsection 17

- 25

- 45( A )(1) (2014)

. The court of appeals ' opinion affirm ing the conviction is unpublish ed. State v. Sellers , Op. No. 2021

- UP

- 254 (S.C. Ct. App. filed July 7, 2021).

1 Because the strength of the State's evidence that Sellers personally beat Hydrick to death is not an issue on appeal, we do not discuss most of that evidence.II. Malice Jury Instruction

Sellers contends that

, by including the language " the intentional doing of a wrongful

act without just cause or excuse" in the definition of malice in its jury charge

, the trial court violated his due process rights by shift ing the burden to him to prove he acted with just cause or excuse

. We begin our discussion of Sellers' burden

- shifting

argument by pointing out the trial court gave the jury a thorough and complete instruction on the State's burden of proving "all of the elements, each of them, beyond a reasonable doubt." Among multiple specific references in its jury charge to the State's burden of proof , the trial court instructed the jury that "to sustain a conviction for murder the State must prove beyond a reasonable doubt .

. . the defendant killed another person with malice

. . . ." The trial court then define d

malice "as hatred, ill will, hostility toward another person. It is the intentional doing of a wrongful act without just cause or excuse .

. . ."

Under the State 's clearly

- articulated burden of proof and the trial court's definition of malice, the State was required to prove beyond a reasonable doubt th at Sellers acted "without just cause or excuse." Thus, we find the trial court's jury instruction

on malice could not have be en reasonably interpreted by the jury as shifting the burden of proof to Sellers. See Sandstrom v. Montana , 442 U.S. 510, 517, 99 S. Ct. 2450, 2456, 61 L. E d. 2d 39, 47 (1979) (analyzing whether a jury instruction violated

the Due Process Clause because of improper burden shifting as whether "a reasonable jury could well have interpreted" the instruction to relieve the State of its burden of proof) ; s ee also State v. Bell , 305 S.C. 11, 19, 406 S.E.2d 165, 170 (1991) (holding a jury instruction defining malice as "the doing of a wrongful act intentionally and without just cause or excuse" was not "an unconstitutional burden

shifting" instruction)

.

Sellers also argues the malice instruction was "needlessly confusing" and violated "this Court's modern pattern of disapproving of jury instructions on how the jury should interpret certain evidence." On this point, t he court of appeals stated,

We understand Sellers' argument that a reasonable jury could apply the phrase equating malice with "intentional doing of a wrongful act without just cause or excuse" in problematic ways. We are not sure what the challenged phrase adds to a malice charge and can see the wisdom in not charging it. We are also not sure how a wrongful actcan be said to be done with malice if all that is proven is

that the act was done with intent .

. . . Nor are we sure how an intentional act that is justified or excusable by law

could be a crime.

Sellers

, Op. No. 2021

- UP

- 254

, at 2

- 3.

Instructing a jury on any point of law is difficult, but it can be particularly so on the principle of malice. In some cases, such as where there is evidence the defendant

acted in self

- defense, it is true the State must prove the defendant acted without just

cause or excuse. See State v. Dickey , 394 S.C. 491, 499, 716 S.E.2d 97, 101 (2011) (holding "when a defendant claims self

- defense, the State is required to disprove the

elements of self

- defense beyond a reasonable doubt"). Here, however, there was no

evidence of self

- defense or any other legal justification for the killing of Hydrick. The only question in this case was whether it was Sellers who committed the crime. Thus, like the court of appeals, we question what the phrase "without just cause or

excuse" add ed to the jury's understanding of the legal principle of malice. While we caution our trial courts to carefully consider whether to includ e any phrase in a jury instruction, however, w e do not believe the phrase "without just cause or excuse" in this case could have caused the jury to be confused, nor cou ld have improperly guided the jury on how to interpret specific evidence. We find no error.

In his brief to the court of appeals, Sellers argued for the first time the trial court did

not connect the phrase "the intentional doing of a wrongful act" to an act that proximately caused Hydrick's death

. He argued the jury instruction could thus lead the jury to conclude the State proved malice merely by show ing Sellers engaged in the "wrongful act" of buying or selling drugs, burglarizing Hydrick's home, or robbing Hydrick, unless Sellers showed "just cause o r excuse" for those acts . "There was," counsel wrote in his brief to this Court, "a variety of .

. . unlawful or wrongful acts that this jury instruction impermissibly called upon [Sellers] to show 'just cause

or excuse' for .

. . ." At oral argument before this Court, Sellers argued for the firs t
time

— in connection with the hand of one is the hand of all

— the instruction permitted the jury to find the State proved Sellers' malice merely by show ing another person committed one of these wrongful acts.

Neither of these arguments is preserved for a ppellate review , however, as neither argument was presented to the trial court. See State v. Field , 429 S.C. 578, 582, 840 S.E.2d 548, 550 (2020) ("As we have repeatedly held, 'A party need not use the exactname of a legal doctrine in order to preserve it, but it must be clear that the argument has been presented on that ground. A party may not argue one ground at trial and an alternate ground on appeal.'" (quoting State v. Dunbar , 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003))).

III. The Hand of One is the Hand of All Jury Charge

Ordinarily, the State convicts a defendant of a crime by proving that he personally committed the criminal act. As discussed above, the State 's primary theory in this

case was Sellers committed the murder by personally beating Hydrick to death.

Under the doctrine we refer to in South Carolina as "the hand of one is the hand of

all ," the State proves the defendant guilty by proving he had a mutual plan or

agree ment with another person to commit one crime, and during the course of

c ommitting that initial crime

, the other person committed a second crime they had not agreed to commit. State v. Harry , 420 S.C. 290, 299, 803 S.E.2d 272, 276 (2017) ; see also Butler v. State , 435 S.C. 96, 97

- 98, 866 S.E.2d 347, 348 (2021) ("Under the theo ry the 'hand of one is the hand of all,' when two people join together to commit a crime, and during the commission of that crime one of the two commits another crime, both may be criminally liable for the unplanned crime if it was a natural and probable consequence of their common plan to commit the initial crime.")

. In this case, the State's alternative theory was that Sellers and Gee mutually planned to burglarize Hydrick's home and rob him of Oxycodone, guns, or cash, and while the two of them were carrying out th os e initial crimes

, either Gee beat Hydrick

to death or the two of them mutually beat Hydrick to death

.

In most cases in which the State attempts to convict a defendant of murder under th e hand of one doctrine , the factual scenario involve s a gunshot, not a beating

. In such a typical case, two or more people agreed to commit the initial crime, and during the

course of that crime a person who is not the defendant shot and killed a victim. Th is typical scenario is that one of them

— not both of them

— fired the shot that killed the

victim. In cases where the evidence is clear the other person

— not the defendant

— fired the fatal shot, the hand of one doctrine clearly applies and the trial court will instruct the jury on the doctrine without hesita tion. I n many cases , however, the evidence is not clear as to one of three points : (1) whether there was a mutual plan or agreement, (2) whether the person who might have fired the fatal shot was part of that plan or agreement, or (3) whether the other person in the plan or agreement is the person who fired the fatal shot

. If the evidence is unclear as to any one of thesepoints, it can be quite difficult f or the trial court to determine whether to instruct t he jury on the hand of one doctrine

.

As to t he first point

, the trial court must determine whether there is any evidence the

defendant had a mutual pla n or agree ment with another person to commit an initial

crime. In Harry , for example, the propriety of the hand of one jury instruction depended on wh ether the State presented evidence the defendant agreed with the others in his group to use illegal force if that force became necessary to retrieve his

television. Compare 420 S.C. at 300, 803 S.E.2d at 277 (majority concluding "the evidence yielded a reasonable series of inferences .

. . that Petitioner devised a plan to retrieve, by force if necessary, his television from Victim" and, "The State

therefore presented sufficient evidence that Petitioner was engaged in a scheme to commit an illegal act, the result of which was Victim's shooting death")

, with 420

S.C. at 301, 803 S.E.2d at 278 (Hearn, J., dissenting) (concluding "the record contains no evidence of an illegal plan")

.

As to t he second point

, the trial court must determine whether there is any evidence

the other person who might have fired the fatal shot was a person included in the mutual plan or agreement to commit the initial crime. In State v. Washington

, 431 S.C. 394, 848 S.E.2d 779 (2020)

, for example, there was evidence another person

— Kinloch

— joined together with the defendant to harass and assault Manigault (the initial crime)

, and there was evidence another person

— not the defendant

— fired the shot that killed Manigault

. 431 S.C. at 4 06 -07 , 848 S.E.2d at 7 85 -86. B ut there was

no evide nce Kinloch fired the shot

, 431 S.C. at 409, 848 S.E.2d at 787 , and there

was no evidence the other person who might have fired the shot was part of the agreement to commit the initial crime, 431 S.C. at 40 7

, 848 S.E.2d at 78 6

. This Court found the hand of one jury instruction should not have been given because "there was no evidence Kinloch shot Manigault," 431 S.C. at 40 9 , 848 S.E.2d at 78 7,

and "Kinloch is the only possible person who could fall into the category of

Petitioner 's accomplice

, " 431 S.C. at 407, 848 S.E.2d at 786.

T he third point requires the trial court to determine whether there is evidence the

defendant fired the fatal shot and evidence the person with whom the defendant had

a mutual pla n or agreement is the person who fired the fatal shot. In Barber v. State

, 393 S.C. 232, 712 S.E.2d 436 (2011) , for example, three witnesses testified the

defendant shot two victims

, killing one . 393 S.C. at 23 4-35

, 712 S.E.2d at 43 8.
However, t he trial court also instructed the jury it may find the defendant guilty on

the alternative "hand of one" theory that one of his co

- defendants was the gunman.393 S.C. at 2 35 , 712 S.E.2d at 43 8. T he defendant argued on appeal there was no

evidence a co

- defendant was the per son who fired the fatal shot, and thus the trial court erred by charging the hand of one theory. See 393 S.C. at 237, 712 S.E.2d at

439 (stating "the question is whether there is any evidence that another co

conspirator was the shooter")

.

Barber is the classic example of this third type of case because there was evidence the defendant fired the shot, but the question was whether there was also evidence the other person fired the shot. This is the scenario in which we said the "alternate theory of liability may only be charged when the evidence is equivocal on some integral fact." 393 S.C. at 236, 712 S.E.2d at 439. In other words, Barber requires

the trial court to determine whethe r— in addition to evidence the defendant fired the

shot

— there is any evidence the person with whom he agreed to commit the initial

crime fired the shot

. By stating the evidence must be "equivocal

, " we simply meant

the evidence must support both alternative theories as to which person was the

shooter

. If all the eviden ce indicates the defendant was the only shooter, the hand of one theory must not be charged.

T his case is unlike Harry

, Washington

, and Barber because determining whether it was proper to charge the hand of one doctrine here requires a ddressing all three points

— whether there was evidence (1) Sellers mutually agreed with Gee to burglarize Hydrick's home and rob him, (2) Gee participated with Sellers in the burglary and the robbery, and (3) Gee administered a fatal blow to Hydrick during the beating.

We turn

, the refore, to the testimony and evidence the State introduced at trial , and begin with the testimony of several inmates Sellers met while incarcerated at the Edgefield County jail awaiting trial. Dennis Amerson testified he did not know

Sellers befo re meeting him during "rec" time when they were let out of their cells for one hour a day . Sellers told Amerson he and two of his friends were "scrapping metal" across the street from Hydrick's house earlier on the day the murder occurred.

Sellers told Amerson he tied up the victim and beat him, and that some pills and other items were stolen from the victim. As to the stolen items, Sellers told Amerson "they had got [sic] rid of them."

Phillip Griffin testified he and Sellers were cellmates beginnin g with Griffin's arrest on November 21, 2014, and Sellers started talking about the charges against him. At first, Griffin testified, Sellers denied he committed the crime. As they continuedtalking, however, "His story would change a little bit and he kind of started putting himself involved in the case." Griffin testified Sellers' story "got to the point to where he told me that he actually went out there to commit a robbery," and then "him

and a friend .

. . drove down Highway 19 to go to the guy's ho use and they was [sic] going to pull a lick and rob him." Griffin then explained "pull a lick" meant

, "They were going to rob him or steal." Sellers told Griffin he knew Hydrick "just got his prescriptions filled and [Sellers] was gonna [sic] go get his pills. If he had any money, [Sellers] wanted it too." Griffin then summarized what Sellers told him,

They were in his van and they drove down 19 and went close to his house, like an abandoned lot about a hundred, a hundred and fifty yards away from wher e Johnny lived and that's where they parked and they went to his house. They parked there. They went to his house and they taped him up and was asking him where the pills were and they were pistol

- whipping him until he told them where the pills were.

Wh en asked who m Sellers said he was with, Griffin testified Sellers said "a guy

named Gee."

Wesley Brown testified he and Sellers were cellmates after Brown was arrested in January 2015. Sellers initially told Brown he had an alibi. Brown testified that a fter

he told Sellers the supposed alibi witness was a close friend of Brown's, "I guess he lightened up a little bit, like he felt like he could trust me a little more." As they continued to talk, Sellers described committing the crime with "some other pe rson" he did not name. Sellers told Brown, "We did it with a .38." Brown also testified

Sellers told him that sometime after Hydrick's murder "a guy named Gee" was using Sellers' phone and "while he was using [Sellers'] phone, he was putting text message s or something in his phone, I mean, I guess to make it look like [Sellers] did it."

The State called Jeremy Hembree, an investigator with the Aiken Department of Public Safety, who testified he performed a "phone extraction" to download all the

data fr om Sellers' phone on November 6, 2014, one week after the Edgefield County Sheriff's Department arrested Sellers for Hydrick's murder. Investigator Hembree testified Sellers' phone records showed multiple calls the evening of the murder to a contact in Sellers' phone named Gee. Investigator Hembree testified, however, thatwhen he did another phone extraction of Sellers' phone just before trial, the "Gee" contact had been deleted, along with all calls and text messages to and from Gee.

We find this evidence supports the trial court's decision to charge the hand of one

doctrine to the jury. First, Sellers' statement to Griffin was specific that he and Gee agreed to jointly enter Hydrick's home for the purpose of robbing him. This statement is supported by the fact Sellers made phone calls to Gee just before the crime and deleted Gee's contact information from his phone after he was arrested.

Second, Sellers' statement to Griffin was specific that he and Gee jointly tied up Hydrick and pistol

- whipped him to accomplish the robbery

. Th is statement is further supported by Sellers' telling Brown "we" did it with a .38 caliber pistol and his telling Amerson "they" had gotten rid of the items stolen from Hydrick

. Thus,

there is evidence Gee was part of Sellers' criminal plan.

Finally, as to the third point, unlike in Barber and other cases, the State was not required to offer evidence Gee killed Hydrick instead of Sellers doing so. Rather

, the evidence they jointly beat Hydrick supports the State's position that either one or both of them could have administered the fatal blow or blows. Therefore, the Barber idea of "equivocal" evidence

— which we applied in Barber because the shooting

must have been done by one but not both of the co

- defendants

— is not applicable

here. In addition, Sellers told Griffin that when Sellers left Hydrick's home, Hydrick

was still alive. This statement clearly supports an inference it was Gee who delivered

the f inal or fatal blow s to Hydrick after Sellers left the crime scene.

Thus, if the jury believed Griffin's testimony about what Sellers told him, or if it believed Amerson's and Brown's testimony, then it could find Sellers guilty based on Gee's actions beating Hydrick during the burglary and robbery the two of them agreed to commit without speculating and without having to rely on finding evidence

to be not credible

. See Washington , 431 S.C. at 41 1, 848 S.E.2d at 788 (reversing because the hand of one charge "invited the jury to speculate"); 431 S.C. at 409, 848 S.E.2d at 787 (holding "an alternate theory of liability may not be charged to a jury 'merely on the theory the jury may believe some of t he evidence and disbelieve other evidence'" (quoting Barber , 393 S.C. at 236, 712 S.E.2d at 438)).

IV. ConclusionBecause the trial court repeatedly instructed the jury on the State's burden of proof, the phrase "intentional doing of a wrongful act without just cause or excuse" did not

shift the State's burden of proof or confuse the jury. B ecause the State presented

evidence Sellers agreed with Gee to commit the burglary and robbery and evidence

both Sellers and Gee beat Hydrick during the course of the two initial crimes

, the

hand of one jury instruction was supported by the evidence

.

AFFIRMED.

BEATTY, C.J., KITTREDGE, JAMES, JJ., and Acting Justice Stephan ie P.
McDonald, concur.