Petition for Writ of Certiorari — Preston Shands, Jr., Petitioner v. South Carolina

Supreme Court briefAug 7, 2019

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APPENDIX

State v. Shands ......................................................................................................................... A1

Petition for Rehearing ............................................................................................................ A19

Order Denying Petition for Rehearing .................................................................................... A27

Petition for Writ of Certiorari ............................................................................................... A28

Order Denying Petition for Writ of Certiorari ........................................................................ A59

Remittitur………. ................................................................................................................. A60

Kidnapping Indictment........................................................................................................... A61

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

A. 1

424 S.C. 106

Court of Appeals of South Carolina.

The STATE, Respondent,

Preston SHANDS, Jr., Appellant.

Appellate Case No. 2015-001199

Opinion No. 5569

Heard November 8, 2017

Filed June 13, 2018

Rehearing Denied August 16, 2018

Certiorari Denied May 9, 2019

[6] instruction that malice could be inferred from the use

of a deadly weapon in prosecution for attempted murder

prejudiced defendant, and thus was reversible error;

[7] evidence supported finding that defendant restrained and

confined his wife as required for a kidnapped prosecution.

Affirmed in part and reversed in part.

West Headnotes (42)

[1]

Criminal Law

Jury selection

Generally, the trial court's findings regarding

purposeful discrimination by a party in the

exercise of peremptory strikes are accorded great

deference and will be set aside on appeal only if

clearly erroneous.

Synopsis

Background: Defendant was convicted in the Circuit

Court, Laurens County, Edward W. Miller, J., of firstdegree burglary, kidnapping, attempted murder, first-degree

assault and battery, and possession of a weapon during the

commission of a violent crime. Defendant appealed.

Holdings: The Court of Appeals, Thomas, J., held that:

Cases that cite this headnote

[2]

[1] state's peremptory strikes were not based on purposeful

discrimination;

[4] evidence did not support issuance of involuntary

intoxication instruction;

[5] prosecutor's emotionally charged closing comments and

reference to kidnapping charges not discussed in initial

closing argument did not prejudice defendant;

Criminal Law

Summoning, impaneling, or selection of

jury

When the assignment of error is the failure to

follow the Batson hearing procedure, the Court

of Appeals must answer a question of law, for

which the standard of review is plenary.

[2] as a matter of first impression, probation and parole do

not constitute confinement for purposes of the ten-year limit

under the rule governing admissibility of a prior conviction

for impeachment purposes;

[3] defendant opened the door to admission of his 40-year old

conviction;

Criminal Law

Summoning, impaneling, or selection of

jury

Cases that cite this headnote

[3]

Constitutional Law

Peremptory challenges

Constitutional Law

Peremptory challenges

The Equal Protection Clause of the Fourteenth

Amendment to the Constitution of the United

States prohibits the striking of a potential juror

based on race or gender. U.S. Const. Amend. 14.

Cases that cite this headnote

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

[4]

A. 2

Peremptory challenges

Jury

The burden of persuading the court that a Batson

violation has occurred remains at all times on the

opponent of the strike. U.S. Const. Amend. 14.

Peremptory challenges

When one party strikes a member of a cognizable

racial group or gender, the trial court must hold

a Batson hearing to review its constitutionality

if the opposing party requests one. U.S. Const.

Amend. 14.

Cases that cite this headnote

[8]

Peremptory challenges

Cases that cite this headnote

[5]

Whether a Batson violation has occurred must be

determined by examining the totality of the facts

and circumstances in the record. U.S. Const.

Amend. 14.

Constitutional Law

Equal protection

Constitutional Law

Peremptory challenges

Constitutional Law

Peremptory challenges

In evaluating whether a party executed a

peremptory challenge in a manner which

violated the Equal Protection Clause, first, the

opponent of the peremptory challenge must

make a prima facie showing that the challenge

was based on race or gender; if a sufficient

showing is made, the trial court will move to

the second step in the process, which requires

the proponent of the challenge to provide a

neutral explanation for the challenge; if the

trial court finds that burden has been met, the

process will proceed to the third step, at which

point the trial court must determine whether the

opponent of the challenge has proved purposeful

discrimination. U.S. Const. Amend. 14.

Cases that cite this headnote

[9]

On a Batson claim, a prior criminal conviction is

a neutral reason to strike a potential juror.

Cases that cite this headnote

[10]

State's peremptory strikes on three male and one

female with prior convictions were not based

on purposeful discrimination in prosecution

for attempted murder and first-degree assault

and battery based on domestic violence, as

required for a Batson violation, despite three of

the four prospective jurors being men, where

prospective female juror was not similarly

situated to the two male jurors who had

convictions for criminal domestic violence, it

was understandable that State would want to

strike jurors with convictions for domestic

violence, female juror was not similarly situated

to the third prospective male juror who had

multiple convictions for violating the lottery law,

and having multiple convictions was different

than having only one conviction that is over a

decade old.

Jury

To prove purposeful discrimination by a party

exercising peremptory strikes, the opponent of

the strike must show the race or gender neutral

explanation was mere pretext, which generally is

established by showing the party did not strike

a similarly situated member of another race or

gender.

Cases that cite this headnote

Jury

Peremptory challenges

[7]

Jury

Peremptory challenges

Cases that cite this headnote

[6]

Jury

[11]

Indictments and Charging Instruments

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

A. 3

Weight and sufficiency

[12]

Defendant did not adequately present evidence

that there was any grand jury abuse as grounds

for quashing the otherwise lawful indictment,

where defendant claimed that officer who

testified at his grand jury hearing was not

listed on his indictments and had no personal

knowledge of his case, there was no recording

of who testified, and defendant's claim was pure

speculation.

In determining whether the probative value

of a prior conviction outweighs its prejudicial

effect, the trial courts should consider: (1) the

impeachment value of the prior crime; (2) the

point in time of the conviction and the witness's

subsequent history; (3) the similarity between

the past crime and the charged crime; (4) the

importance of the defendant's testimony; and (5)

the centrality of the credibility issue. S.C. R.

Evid. 609(a)(1), 609(b).

Cases that cite this headnote

Indictments and Charging Instruments

Composition and constitution of the grand

jury

[16]

Witnesses

Accusation or Conviction of Crime

Probation and parole following a prison term

do not constitute “confinement” under the rule

of evidence permitting admission of a prior

conviction for impeachment purposes unless ten

years has elapsed from the witness's release

from confinement on the prior conviction;

confinement ends when a defendant is released

from actual imprisonment. S.C. R. Evid. 609(b).

Indictments and Charging Instruments

Time for proceedings

When a defendant timely moves to quash

an indictment, the trial court must determine

whether the defendant’s constitutional right

to have the criminal allegations against him

weighed by a properly constituted grand jury has

been violated.

Cases that cite this headnote

[17]

[13]

Indictments and Charging Instruments

Grand Jury Irregularities

The term “parole” means a conditional release

from imprisonment.

Proceedings before the grand jury are presumed

to be regular unless there is clear evidence to the

contrary.

Cases that cite this headnote

[14]

Indictments and Charging Instruments

Weight and sufficiency

Speculation about potential abuse of grand

jury proceedings cannot substitute for evidence

of actual abuse as grounds for quashing an

otherwise lawful indictment.

Cases that cite this headnote

[15]

Witnesses

Prejudice or unfairness; balancing

probative value

Pardon and Parole

Parole

Cases that cite this headnote

[18]

Witnesses

Time of prior conviction; remoteness

Evidence of defendant's prior conviction for

purposes of impeachment was too remote

in prosecution for first-degree burglary,

kidnapping, attempted murder, first-degree

assault and battery, and possession of a weapon

during the commission of a violent crime, and

thus was presumptively inadmissible, where

defendant was a free citizen released on parole

and not confined for his prior conviction of a

violent felony over ten years prior to his trial.

S.C. R. Evid. 609(b).

Cases that cite this headnote

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

[19]

Witnesses

Prejudice or unfairness; balancing

probative value

Probative value of defendant's remote prior

conviction for a violent felony did not

substantially outweigh its prejudicial effect,

where defendant was convicted over 40 years

ago and was released from prison over ten years

ago, and defendant was being charged for a

similar violent felony. S.C. R. Evid. 609(b).

Cases that cite this headnote

[20]

A. 4

Cases that cite this headnote

[22]

A party cannot complain of prejudice from

otherwise inadmissible evidence to which he

opened the door.

Cases that cite this headnote

[23]

Cases that cite this headnote

[24]

Evidence did not support issuance of involuntary

intoxication instruction in prosecution for firstdegree burglary, kidnapping, attempted murder,

first-degree assault and battery, and possession

of a weapon during the commission of a violent

crime; defendant admitted he voluntarily drank

homemade moonshine, an illegal, unregulated

liquor, and did not know who made it, he

knew the moonshine was stronger than a typical

alcoholic beverage because his coworkers told

him that the moonshine was the granddaddy of

all, the cremator of all whiskey, that he could

not say had drunk anything until he tasted the

granddaddy, defendant admitted he had no idea

what was in the moonshine, he had no idea how

he was going to react to it, but he decided to

drink it anyway, and he could not assume the

moonshine would have a predictable intoxicating

effect. S.C. Code Ann. § 61-6-4010(A).

Criminal Law

Evidence Admissible by Reason of

Admission of Similar Evidence of Adverse

Party

Otherwise inadmissible evidence may be

properly admitted when opposing counsel opens

the door to that evidence.

Criminal Law

Intoxication

Homicide

Involuntary intoxication

Cases that cite this headnote

[21]

Criminal Law

Intoxication

Voluntary intoxication or use of drugs does not

constitute a defense to a crime.

Criminal Law

Evidence Admissible by Reason of

Admission of Similar Evidence of Adverse

Party

Defendant opened the door to admission of his

40-year old conviction for a violent felony which

was presumptively inadmissible in prosecution

for first-degree burglary, kidnapping, attempted

murder, first-degree assault and battery, and

possession of a weapon during the commission

of a violent crime, where defendant elicited

testimony during the cross-examination of

numerous witnesses to show that he had never

reacted violently before, defendant's counsel also

elicited testimony from defendant's two sons

about whether they had ever seen defendant act

in a similar manner, defendant's counsel asked

neighbor if defendant's behavior on the night

of the incident was entirely out of character,

and State was entitled to rebut his assertions of

non-violent behavior with evidence of his prior

conviction for a violent felony. S.C. R. Evid.

609(b).

Criminal Law

Admission of evidence

Cases that cite this headnote

[25]

Criminal Law

Inferences from and Effect of Evidence

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

In its closing argument, the State may argue

its version of the testimony presented, and

furthermore may comment on the weight to be

accorded such testimony.

A. 5

Cases that cite this headnote

[29]

Cases that cite this headnote

[26]

“A deadly weapon” is generally any article,

instrument, or substance that is likely to produce

death or great bodily harm.

Criminal Law

Appeals to sympathy or prejudice;

argument as to punishment

Prosecutor's closing comments referring to

defendant as a jealous, controlling husband who

was not going to let his property leave the

house did not prejudice defendant in prosecution

for first-degree burglary, kidnapping, attempted

murder, first-degree assault and battery, and

possession of a weapon during the commission

of a violent crime; defendant responded

affirmatively when State asked if he got jealous

and controlling and if things started falling apart,

wife who defendant stabbed multiple times said

defendant was controlling in the months leading

up to the incident and she walked on pins and

needles every day, neighbor recalled defendant

got a little jealous at times if someone tried to

talk to wife and defendant would try to get her

attention, and defendant did not allow wife to

leave the house.

Cases that cite this headnote

[30]

Homicide

Malice

Criminal Law

Attempts

In prosecution for an attempt crime, “specific

intent” means that the defendant consciously

intended the completion of acts comprising the

completed offense.

Cases that cite this headnote

[31]

Indictments and Charging Instruments

Assault and battery

Indictments and Charging Instruments

Homicide

Assault and battery of a high and aggravated

nature is a lesser-included offense of attempted

murder.

Cases that cite this headnote

[27]

Weapons

Dangerous or deadly weapons in general

Cases that cite this headnote

[32]

In prosecution for attempted murder, the

implication of malice may arise from the use of

a deadly weapon.

Assault and Battery

Instructions

An assault and battery of a high and aggravated

nature charge is appropriate when the evidence

demonstrates the defendant lacked the requisite

intent to kill.

Cases that cite this headnote

[28]

Homicide

Presumptions and inferences

The use of a deadly weapon implied malice

instruction has no place in a murder or assault

and battery with intent to kill prosecution

when evidence is presented that would reduce,

mitigate, excuse, or justify the killing or the

alleged assault and battery with intent to kill.

[33]

Assault and Battery

Aggravated assault

Assault and battery of a high and aggravated

nature is the unlawful act of violent injury

to another accompanied by circumstances of

aggravation.

Cases that cite this headnote

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

[34]

A. 6

Conduct of trial in general

Assault and Battery

Aggravated assault

A defendant challenging improper argument

based on a violations of procedural due process

has the burden of proving he did not receive a fair

trial because of the alleged improper argument.

U.S. Const. Amend. 14.

Sex Offenses

Degrees and aggravated sex offenses in

general

Circumstances of aggravation for an assault

and battery of a high and aggravated nature

charge include the infliction of serious bodily

injury, great disparity in the ages or physical

conditions of the parties, a difference in sexes,

the purposeful infliction of shame and disgrace,

taking indecent liberties or familiarities with a

female, and resistance to lawful authority.

Cases that cite this headnote

[38]

The relevant question regarding an improper

comment is whether the State’s comments so

infected the trial with unfairness as to make the

resulting conviction a denial of due process. U.S.

Const. Amend. 14.

Cases that cite this headnote

[35]

Criminal Law

Instruction as to evidence

Homicide

Presumptions and inferences

Cases that cite this headnote

[39]

Jury instruction that malice could be inferred

from the use of a deadly weapon in prosecution

for attempted murder prejudiced defendant, and

thus was reversible error, despite the number of

times defendant stabbed wife with a barbecue

fork and the nature of the attack, where if the jury

did not believe defendant had the specific intent

to kill his wife, he would have been guilty of the

lesser-included offense of assault and battery of

a high and aggravated nature instead, and a jury

could have found defendant only had a general

intent to kill instead of the higher mens rea of

specific intent to kill.

Criminal Law

Statements as to Facts, Comments, and

Arguments

Improper comments do not automatically require

reversal for a violation of procedural due process

if they are not prejudicial to the defendant. U.S.

Const. Amend. 14.

Cases that cite this headnote

[37]

Criminal Law

Summing up

State's reply closing comments regarding a

kidnapping charge not discussed during its initial

closing argument did not prejudice defendant,

where defendant was aware of State's theory

of the charge, State explained what facts it

believed supported the charge in response

to defendant's directed verdict motion, State

indicated the charge was appropriate because

defendant grabbed wife to pull her back into the

house and would not let her leave, State indicated

in its initial closing argument that the kidnapping

charge was not of the traditional kind, State

explained the kidnapping charge, defendant was

aware of State's theory and knew from the

initial closing argument that State was focusing

on a brief confinement to support kidnapping

charge, State's comments were arguably in reply

to defendant's closing argument comment that

he did not know how State would explain

kidnapping.

Cases that cite this headnote

[36]

Constitutional Law

Prosecutor

Cases that cite this headnote

[40]

Kidnapping

Elements

A kidnapping commences when a victim is

lawfully deprived of his or her freedom and

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

[41]

A. 7

continues until freedom is restored. S.C. Code

Ann. § 16-3-910.

Opinion

Cases that cite this headnote

THOMAS, J.:

Kidnapping

*115 Preston Shands, Jr., appeals his convictions for firstdegree burglary, kidnapping, attempted murder, first-degree

assault and battery, and possession of a weapon during the

commission of a violent crime. On appeal, Shands argues

Kidnapping

Confinement, restraint, or detention

The crime of kidnapping is broad in scope and

encompasses restraint regardless of duration.

S.C. Code Ann. § 16-3-910.

Cases that cite this headnote

[42]

Kidnapping

Weight and sufficiency

Evidence supported finding that defendant

restrained and confined his wife as required for

a kidnapped prosecution, even though defendant

testified that his attempts to stop wife from

leaving the house were ultimately unsuccessful,

where wife testified that she tried to leave the

house, but defendant kept closing the garage

door so she could not escape, and that defendant

pulled her by the hair and tried to drag her into the

house so she could not leave, and their sons both

recalled during testimony defendant grabbing

wife by the hair. S.C. Code Ann. § 16-3-910.

Cases that cite this headnote

**528 Appeal From Laurens County, Edward W. Miller,

Circuit Court Judge

Attorneys and Law Firms

E. Charles Grose, Jr., of Grose Law Firm, of Greenwood, for

Appellant.

Attorney General Alan McCrory Wilson and Assistant

Deputy Attorney General David A. Spencer, both of

Columbia; and Solicitor David Matthew Stumbo, of

Greenwood, all for Respondent.

the trial court erred by (1) improperly applying the Batson 1

comparative juror analysis; (2) refusing to quash the **529

indictments; (3) allowing the State to impeach him with a

prior conviction; (4) refusing to charge the jury on involuntary

intoxication; (5) denying his motion to strike the State's

improper comments during closing argument; (6) instructing

the jurors they could infer malice from the use of a deadly

weapon; (7) failing to require the State to open fully on the law

and facts during its initial closing argument; and (8) denying

his motion for directed verdict on the kidnapping charge. We

affirm in part and reverse in part.

Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S.Ct. 1712,

90 L.Ed.2d 69 (1986) (adopting a three-step inquiry for

evaluating whether a party used a peremptory challenge

to strike a juror in a manner that violated the Equal

Protection Clause of the Fourteenth Amendment to the

United States Constitution).

FACTS AND PROCEDURAL HISTORY

In October 2014, a Laurens County grand jury indicted

Shands for attempted murder, kidnapping, burglary,

possession of a weapon during the commission of a violent

crime, and two counts of assault and battery arising out of a

domestic incident on July 20, 2014. On the day of the incident,

Sharon Shands (Sharon) tried to leave the house after Shands

began arguing with her. Shands prevented her from leaving

by pulling her back into the house by her hair; he then stabbed

her multiple times with a barbecue fork. Sharon was able

to escape to the neighbor's house, but Shands followed her

and broke into the neighbor's house. The assault ended when

police arrived.

Shands testified in his defense and admitted he was

responsible for what happened to Sharon. However, he

claimed he did not have any memory of the incident because

he drank homemade moonshine earlier in the day that must

have been laced with a drug. Shands testified he bought the

moonshine from someone at work and did not know who

made the *116 moonshine or what was in it. Shands believed

there “was something more strong and powerful in there ...

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

A. 8

other than alcohol” because it “had some effect on [him]

that took [him] slap clean out of [his] mind.” The jury found

Shands guilty of attempted murder, possession of a weapon

during the commission of a violent crime, assault and battery,

burglary, and kidnapping. The trial court sentenced Shands to

life imprisonment without the possibility of parole for firstdegree burglary, kidnapping, and attempted murder; ten years'

imprisonment for first-degree assault and battery; and five

years' imprisonment for possession of a weapon during the

commission of a violent crime. This appeal followed.

STANDARD OF REVIEW

In criminal cases, this court sits to review errors of law only,

and is bound by the trial court's factual findings unless those

findings are clearly erroneous. State v. Edwards, 384 S.C. 504,

508, 682 S.E.2d 820, 822 (2009). Thus, on review, this court

is limited to determining whether the trial court abused its

discretion. Id.

I. BATSON CHALLENGE

Shands argues the trial court did not properly apply the third

step of the Batson comparative juror analysis. Shands asserts

he proved the State impermissibly struck two jurors on the

basis of gender by showing there was a similarly situated

female juror on the panel. He contends the trial court “was

confused because the initial motion was based on [the State]

striking men, and ... Shands then pointed to ... a female[,]” and

therefore, the trial court “operated under the mistaken belief

[it] could not consider a similarly situated female juror.” We

affirm.

juror based on race or gender. When

one party strikes a member of a

cognizable racial group or gender, the

trial court must hold a Batson hearing

if the opposing party requests one.

Id. at 313–14, 775 S.E.2d at 419 (internal citation omitted).

“The United States Supreme **530 Court has set forth a

three-step inquiry for evaluating whether a party executed a

peremptory challenge in a manner which violated the Equal

Protection Clause.” State v. Inman, 409 S.C. 19, 25, 760

S.E.2d 105, 108 (2014).

First, the opponent of the peremptory

challenge must make a prima facie

showing that the challenge was based

on race [or gender]. If a sufficient

showing is made, the trial court will

move to the second step in the process,

which requires the proponent of the

challenge to provide a ... neutral

explanation for the challenge. If the

trial court finds that burden has been

met, the process will proceed to the

third step, at which point the trial court

must determine whether the opponent

of the challenge has proved purposeful

discrimination.

[1]

[2]

[3]

[4]

[5]

[6]

[7]

[8] Generally, “[t]he

State v. Giles, 407 S.C. 14, 18, 754 S.E.2d 261, 263 (2014)

trial court's findings regarding purposeful discrimination are

(internal citations omitted). In order to prove purposeful

accorded great deference and will be set aside on appeal only

discrimination, “[t]he opponent of the strike must show the

if clearly erroneous.” State v. Haigler, 334 S.C. 623, 630, 515

race or gender[ ]neutral explanation was mere pretext, which

S.E.2d 88, 91 (1999). However, “[w]he[n] the assignment of

generally is established by showing the party did not strike

error is the failure to follow the Batson hearing procedure,

a similarly[ ]situated member of another race or gender.”

[the appellate court] must answer a question of law. When

Stewart, 413 S.C. at 314, 775 S.E.2d at 419. “The burden

a question of law is presented, [the] standard of review is

of persuading the court that a Batson violation has occurred

plenary.” State v. Stewart, 413 S.C. 308, 316, 775 S.E.2d 416,

remains at all times on the opponent of the strike.” State

420 (Ct. App. 2015) (quoting *117 State v. Cochran, 369

v. Evins, 373 S.C. 404, 415, 645 S.E.2d 904, 909 (2007).

S.C. 308, 312–13, 631 S.E.2d 294, 297 (Ct. App. 2006) ).

“Whether a Batson violation has occurred must be determined

by examining the totality of the facts and circumstances in the

record.” State v. Shuler, 344 S.C. 604, 615, 545 S.E.2d 805,

810 (2001).

[T]he Equal Protection Clause of

the Fourteenth Amendment to the

[9] During jury selection, the State used four of its five

Constitution of the United States

peremptory

strikes on three men and one woman. The

prohibits the striking of a potential

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

A. 9

impaneled jury was composed of nine women and three

men. Shands *118 objected based on the State striking

male jurors, and the court properly held a Batson hearing.

In response to Shands's Batson motion, the State indicated it

struck two of the potential jurors because they had convictions

for criminal domestic violence (CDV) and the other potential

juror because he had four convictions for violating the

lottery law. The State's explanation for striking the three

male potential jurors satisfied the second step of the Batson

analysis because “a prior criminal conviction is a neutral

reason to strike” a potential juror. See State v. Casey, 325 S.C.

447, 453 n.2, 481 S.E.2d 169, 172 n.2 (Ct. App. 1997). To

meet the third step of the Batson analysis, Shands argued the

State sat a similarly situated female juror who had a fraudulent

check conviction, indicating the State's gender neutral reason

for striking the male potential jurors was pretext. When

Shands argued the third step of the Batson analysis, the trial

court believed that Shands previously based his objection on

male jurors being struck but altered his objection because

the State sat a female juror. Shands's counsel reiterated his

assertion that the female juror was similarly situated to the

males who were struck, which met the third prong of Batson.

However, the trial court denied the objection, finding the

strikes were gender neutral.

who had convictions for violating the lottery law. We agree

with the State that having multiple convictions is different

than having only one conviction that is over a decade old.

Considering the totality of facts in the record, we find Shands

did not meet his burden of showing the State's use of its

peremptory strikes was impermissible. See Shuler, 344 S.C.

at 615, 545 S.E.2d at 810 (“Whether a Batson violation has

occurred must be determined by examining the totality of the

facts and circumstances in the record.”).

[10] Based on the exchange between Shands and the trial

court in the record, we find the trial court misapplied the

third step of the Batson analysis by not properly considering

whether the female juror was similarly situated to the potential

male jurors. Therefore, this issue presents a question of law

for this court because the trial court failed to follow the

proper Batson hearing procedure. See Stewart, 413 S.C. at

316, 775 S.E.2d at 420 (“[When] the assignment of error is the

failure to follow the Batson hearing procedure, [the appellate

court] must answer a question of law. When a question of law

is presented, [the] standard of review is plenary.” (quoting

Cochran, 369 S.C. at 312–13, 631 S.E.2d at 297) ).

However, we find Shands did not meet his burden to show

the State's strikes were based on purposeful discrimination.

See Evins, 373 S.C. at 415, 645 S.E.2d at 909 (“The burden

of persuading the court that a Batson violation has occurred

remains at all times on the opponent of the strike.”). The

female juror was not similarly situated to the two potential

male jurors who had convictions for CDV. It is understandable

*119 that the State would want to strike potential jurors who

had convictions for CDV because Shands was being tried for

attempting to kill his wife. Further, the female juror was not

similarly situated **531 to the third potential male juror

II. GRAND JURY PROCESS

Shands argues the trial court erred in refusing to quash the

indictments because the Laurens County grand jury process

is unconstitutional. Shands contends the officer who testified

at his grand jury hearing was not listed on his indictments and

had no personal knowledge of his case, in violation of section

14-7-1550 of the South Carolina Code (2017). 2 Shands urges

this court to correct “a fundamental inequality within the

grand jury process in South Carolina: defendants indicted

under the statewide grand jury system are afforded different

procedures under the law than defendants who are indicted

under the county grand jury system[,]” namely that “statewide

grand jury proceedings must be recorded.”

Section 14-7-1550 states: “The foreman of the grand

jury ... may swear the witnesses whose names shall

appear on the bill of indictment in the grand jury room.

No witnesses shall be sworn except those who have been

bound over or subpoenaed in the manner provided by

law.”

[11] [12] [13] [14] We affirm the trial court's denial of

Shands's motion to quash because Shands did not present

clear evidence that there was an abuse of the grand jury

proceedings in his case. “When a defendant timely moves

to quash an indictment ..., the [trial] court must determine

whether the defendant[']s constitutional right to have the

criminal allegations against him weighed by a properly

constituted grand jury has been violated.” Evans v. State, 363

S.C. 495, 510, 611 S.E.2d 510, 518 (2005). “Proceedings

before the grand jury are *120 presumed to be regular

unless there is clear evidence to the contrary.” State v.

Thompson, 305 S.C. 496, 501, 409 S.E.2d 420, 424 (Ct. App.

1991). “Speculation about ‘potential’ abuse of grand jury

proceedings cannot substitute for evidence of actual abuse as

grounds for quashing an otherwise lawful indictment.” Id. at

502, 409 S.E.2d at 424.

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

A. 10

When making his motion to quash the indictments, Shands

admitted he may “need to call some witnesses” if the State did

not stipulate to the grand jury process because the testimony

presented to the grand jury was not recorded. The State

explained the Laurens County grand jury process:

Essentially, Your Honor, since

Solicitor Stumbo has come into office,

each individual assistant will, as he

is assigned cases, there is a template

for the indictment that is electronically

produced and put in our electronic

record system. We will go in, we

will tailor the indictment to the

facts that we have and then those

are presented out, each individual

assistant or deputy will then sign the

indictments. But, essentially, yes, the

individual agencies are notified the

[g]rand [j]ury is coming, they will send

a representative and one representative

from each department will present

all indictments from that individual

department. That has been pretty much

standard since I started in 1982.

However, the State indicated it “could not tell” whether either

of the two officers listed on Shands's indictments testified in

front of the grand jury because it did not have a record of

who testified. We are unable to say there was a violation in

Shands's case from the record presented. Without any clear

evidence, Shands's argument that there was a grand jury abuse

in his case is pure speculation. Furthermore, we disagree with

Shands's argument regarding the nature of the county grand

jury system because of “the view long held uniformly by

courts nationwide that secrecy of grand jury proceedings is

desirable and necessary.” See Evans, 363 S.C. at 505, 611

S.E.2d at 515; see also State v. Moses, 390 S.C. 502, 521, 702

S.E.2d 395, 405 (Ct. App. 2010) (affirming the trial court's

denial of the defendant's motion to quash the indictments

even though direct evidence “is difficult to provide due to the

**532 secretive nature of the grand jury proceedings”).

*121 Therefore, we find the trial court did not abuse its

discretion in refusing to quash Shands's indictments.

III. PRIOR CONVICTION

Shands argues the trial court erred in allowing the State

to impeach him with his 1976 murder conviction. Shands

contends the conviction had no probative value and was

highly prejudicial because it was similar to his charge of

attempted murder. Shands asserts allowing the State to refer to

the conviction as a violent felony did not lessen the prejudice

because he was on trial for several violent felonies. Shands

also argues he was released from confinement more than

ten years prior to trial so the conviction was not admissible.

Shands contends he did not open the door to the evidence

because his conviction was not contrary to the evidence “that

he had never acted in this manner around his wife and the

children.”

[15] We agree that Shands's conviction was not admissible

under Rule 609, SCRE. Rule 609(a)(1), SCRE, allows

“evidence that an accused has been convicted of ... a crime

[to] be admitted [for the purpose of attacking the credibility of

the accused] if the [trial] court determines that the probative

value of admitting this evidence outweighs its prejudicial

effect to the accused.” Rule 609(b), SCRE, then limits the

admissible convictions to those when no more than “a period

of ... ten years has elapsed since the date of the conviction or

of the release of the witness from the confinement imposed

for that conviction.” However, convictions that are over ten

years old can be admitted “in the interests of justice” if

the trial court determines “that the probative value of the

conviction ... substantially outweighs its prejudicial effect.”

Rule 609(b) (emphasis added). The trial court should consider

the following factors in determining whether the probative

value of a prior conviction outweighs its prejudicial effect: (1)

the impeachment value of the prior crime; (2) the point in time

of the conviction and the witness's subsequent history; (3)

the similarity between the past crime and the charged crime;

(4) the importance of the defendant's testimony; and (5) the

centrality of the credibility issue. Green v. State, 338 S.C. 428,

433–34, 527 S.E.2d 98, 101 (2000).

*122 This case presents the novel issue in South Carolina

of whether parole following a prison term constitutes

“confinement” for the purposes of the ten-year time limit

under Rule 609(b). The trial court found Shands's prior

conviction for murder could be used to impeach him because

he was still on parole for the conviction when he committed

the crimes charged. In State v. Scott, this court held a

defendant's 1977 robbery conviction was not too remote to

be used to impeach her because, although she received parole

in 1980, her sentence was still in effect until 1986. 326 S.C.

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

A. 11

448, 451–52, 484 S.E.2d 110, 112 (Ct. App. 1997). However,

the trial in Scott was prior to the adoption of the South

Carolina Rules of Evidence. Therefore, the Scott court relied

on common law to find the defendant's conviction was not

too remote and did not interpret the confinement language

from Rule 609(b). See id. at 450, 484 S.E.2d at 111. Under

the common law rule, “[t]here [wa]s no fixed time in [South

Carolina] after which a conviction bec[ame] too remote.”

State v. Sarvis, 317 S.C. 102, 105, 450 S.E.2d 606, 608 (Ct.

App. 1994). For those reasons, we disagree with the State and

find Scott is not controlling in the instant case. We note the

majority of jurisdictions 3 considering this issue have held

that probation and parole do not count as confinement for

the purposes of rules and statutes similar to our Rule 609(b).

See United States v. Rogers, 542 F.3d 197, 198 (7th Cir.

2008) (“[P]robation does not constitute ‘confinement’ within

the meaning of Rule 609(b).”); Bizmark, Inc. v. Kroger Co.,

994 F.Supp. 726, 728 (W.D. Va. 1998) (“ ‘[R]elease from

confinement,’ for 609(b) purposes means release from actual

imprisonment, and therefore, [ ] neither parole nor probation

constitutes confinement under the rule.”); Allen v. State, 286

Ga. 392, 687 S.E.2d 799, 803 (2010) (“The legislature's

distinction of ‘confinement’ from release on parole **533

and suspended and probated sentences, when coupled with

the construction of identical statutory language by the federal

courts and our sister states, leads us to conclude that probation

does not qualify as confinement ....”); Commonwealth v.

Treadwell, 911 A.2d 987, 991 (Pa. Super. Ct. 2006) (“After

reviewing the relevant statutory language and the rationale

*123 relied upon in other jurisdictions, we agree with

the federal courts and our sister states, and conclude that

probation does not qualify as confinement ....”).

Because Rule 609(b) “is identical to the federal rule,

federal cases may be persuasive.” See State v. Colf, 337

S.C. 622, 626, 525 S.E.2d 246, 248 (2000).

longer confined because he was not actually imprisoned. See

id. at 581, 726 S.E.2d at 7 (recognizing a defendant on parole

“was not a free citizen” and had “[a]ll the consequences

of the judgement [still] upon him, except that he had

leave of absence from prison” (quoting Crooks v. Sanders,

Superintendent of State Penitentiary, 123 S.C. 28, 36–37, 115

S.E. 760, 763 (1922) ) ). Therefore, Shands's confinement

for his 1976 conviction ended in 2003 when he was released

on parole, making his conviction over ten years old and

presumptively inadmissible under Rule 609(b). See Colf, 337

S.C. at 626, 525 S.E.2d at 248 (“Rule 609(b) establishes a

presumption against admissibility of remote convictions ....”).

[19] Furthermore, the State did not present sufficient

evidence to show the probative value of Shands's conviction

substantially outweighed its prejudicial effect. See id.

at 626–27, 525 S.E.2d at 248 (“[T]he State bears the

burden of establishing facts and circumstances sufficient

to substantially overcome that presumption.”); Rule 609(b)

(explaining a stale conviction is not admissible unless “in the

interests of justice” the trial court determines “the probative

value of the conviction[,] supported by specific facts

and circumstances[,] substantially outweighs its prejudicial

effect”). Because Shands was convicted over forty years ago

and was released from prison over ten years ago, we believe

his conviction had little probative value. See *124 State v.

Black, 400 S.C. 10, 26, 732 S.E.2d 880, 889 (2012) (“The

genesis of the rule's ten-year provision was the belief that after

ten years, the probative value of the conviction with respect

to a person's credibility has diminished to the point where it

should no longer be admissible.”). Moreover, the prejudicial

effect was high because of the nature of his charges. Thus,

the trial court erred by finding the prior conviction admissible

under Rule 609(b).

[20] [21] [22] However, we find the trial court did not

err in admitting Shands's prior conviction because Shands

[16]

[17]

[18] We follow the majority of jurisdictions opened the door to such evidence. “[O]therwise inadmissible

in holding that probation and parole do not constitute

evidence may be properly admitted when opposing counsel

“confinement” for the purposes of Rule 609(b); confinement

opens the door to that evidence.” State v. Page, 378 S.C. 476,

ends when a defendant is released from actual imprisonment.

482, 663 S.E.2d 357, 360 (Ct. App. 2008). “A party cannot

Although Rule 609(b) does not define the term confinement,

complain of prejudice from evidence to which he opened

Black's Law Dictionary defines the term as “[t]he act of

the door.” State v. Culbreath, 377 S.C. 326, 333, 659 S.E.2d

imprisoning or restraining someone; the quality, state, or

268, 272 (Ct. App. 2008). At trial, Shands elicited testimony

condition of being imprisoned or restrained.” Confinement,

during the cross-examination of numerous witnesses to show

BLACK'S LAW DICTIONARY (10th ed. 2014). Conversely,

that he had never reacted violently before. For example,

“[t]he term parole means a conditional release from

Shands's counsel asked Sharon if this was the first time “he

imprisonment.” State v. Ellis, 397 S.C. 576, 579–80, 726

ha[d] ever done something like this.” Shands's counsel also

S.E.2d 5, 7 (2012). Although Shands was not technically a

elicited testimony from Shands's two sons about whether they

“free citizen” while he was on parole, we find he was no

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

A. 12

had ever seen Shands act in a similar manner. Furthermore,

Shands's counsel asked the neighbor if Shands's behavior

on the night of the incident was “entirely out of character.”

Because Shands opened the door about his past non-violent

actions, the State was entitled to rebut his assertions with

evidence of his prior conviction for a violent felony. See

State v. Taylor, 333 S.C. 159, 175, 508 S.E.2d 870, 878

(1998) (“[B]ecause appellant ‘opened the door’ about his

relationship with his wife, **534 the solicitor was entitled

to cross-examine him regarding the relationship, even if the

responses brought out appellant's prior criminal domestic

violence conviction.”). Therefore, the trial court did not err

in admitting Shands's prior conviction. See State v. Robinson,

305 S.C. 469, 474, 409 S.E.2d 404, 408 (1991) (explaining

one who opens the door to evidence cannot complain of its

admission).

IV. VOLUNTARY INTOXICATION

After resting his case, Shands requested that the trial

court charge the jury on involuntary intoxication. The

trial court denied Shands's request but granted the State's

request to *125 charge that voluntary intoxication was

not a defense to a crime. On appeal, Shands argues

the trial court erred in refusing to charge the jury on

involuntary intoxication because his testimony indicated that

the moonshine he drank was unknowingly “spiked with

something other than alcohol.” Shands contends the trial court

improperly commented on the facts when it charged voluntary

intoxication without also charging involuntary intoxication.

We disagree.

[23] At trial, “[t]he law to be charged is determined from the

facts presented.” State v. Lewis, 328 S.C. 273, 278, 494 S.E.2d

115, 117 (1997).

Involuntary intoxication may result

from innocently consuming an

intoxicant, through being tricked into

it by another, or being forced to take

it, or perhaps through unanticipated

side effects of a prescription drug

taken on orders of a physician. If

[a jury] find[s] the defendant was

given drugs or alcoholic beverages

without his knowledge, and as a

result, he lost his ability to exercise

independent judgment and volition

while committing the crimes alleged

against him, then it would be [the jury's

duty] to find the defendant not guilty.

RALPH KING ANDERSON, JR., SOUTH CAROLINA

REQUESTS TO CHARGE—CRIMINAL § 6-4 (2012).

However, “voluntary intoxication or use of drugs does not

constitute a defense to a crime.” State v. Hartfield, 300 S.C.

469, 473, 388 S.E.2d 802, 804 (1990).

[24] We find the trial court did not err in refusing to

charge involuntary intoxication because Shands voluntarily

consumed an illegal intoxicant. See S.C. Code Ann. §

61-6-4010(A) (2009) (making it illegal for a person to

“manufacture, store, keep, receive, have in possession,

transport, ship, buy, sell, barter, exchange, or deliver alcoholic

liquors, except liquors acquired in a lawful manner” or

“accept, receive, or have in possession alcoholic liquors for

unlawful use”). Shands admitted he voluntarily drank the

“homemade moonshine” and did not know who made it. He

knew the moonshine was stronger than a typical alcoholic

beverage because his coworkers told him the moonshine was

“the grand[d]addy of all, the cremator of all whiskey” and

he could not “say [he] drunk anything” until he “tasted the

grand[d]addy.” Moreover, *126 Shands admitted he “had

no idea what was in [the moonshine] and [he] had no idea

how [he] was going to react to it,” but he decided to drink it

anyway.

We agree with the reasoning of the California Court of

Appeals when it considered whether a defendant was entitled

to an involuntary intoxication charge when he voluntarily

smoked a marijuana cigarette given to him by others that was

unknowingly laced with phencyclidine (PCP). See People v.

Velez, 175 Cal.App.3d 785, 221 Cal.Rptr. 631, 632 (1985).

The California Court of Appeals affirmed the trial court's

denial of an involuntary intoxication charge, reasoning

[The defendant's] defense depends

on the validity of [the] defendant's

assumptions that the cigarette did

not contain PCP and would produce

a predictable intoxicating effect.

However, ... these assumptions are

tested not by [the] defendant's

subjective belief but rather by the

standard of a reasonable person. In

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

A. 13

this regard, it is common knowledge

that unlawful street drugs do not come

with warranties of purity or quality

associated with lawfully acquired

drugs such as alcohol. Thus, ...

unlawful street drugs are frequently

not the substance they purport to be ....

Id. at 637. Similarly, in the instant case, Shands knowingly

consumed an illegal, unregulated liquor and had no right to

assume the moonshine would cause a predictable intoxicating

effect. Further, because there was no evidence to support a

charge for involuntary **535 intoxication, the trial court

did not err in charging voluntary intoxication without an

accompanying charge on involuntary intoxication. See Lewis,

328 S.C. at 278, 494 S.E.2d at 117 (“The law to be charged is

determined from the facts presented at trial.”). Therefore, we

find the trial court did not err.

V. COMMENTS DURING THE STATE'S CLOSING

ARGUMENT

Shands argues the trial court erred by not striking the

State's improper comments during closing argument and not

instructing the jurors to disregard the comments. Shands

asserts the State's comment: “This is a jealous, controlling

husband who was not going to let his property leave that

house,” was “highly inflammatory and not based on the

evidence.” We disagree.

*127 In its reply closing argument, the State described its

view of the case and evidence:

And what happens, he is an almost

60-year-old man with a 38-year-old

wife and she is beautiful and she is a

good woman and she was taking care

of him but it wasn't good enough for

him. He starts getting controlling. [The

neighbor] told y'all, [Shands] could be

jealous if you tried to talk to [Sharon]

in the neighborhood. He starts getting

jealous and controlling. And it gets

worse and it gets worse and he is

arguing and he is fussing and he is

drinking and Sharon said we were

on pins and needles. So this, he may

not have put his hands on her before

but this is a relationship that is going

downhill fast. And what happens on

July 20, 2014, she finally says, you

know what, I am leaving, I am going.

Come on kids, get in the car. And that

is when he snaps. He is not, his wife

and his kids that he provides for and he

works for that are his property, she is

not leaving him, she is not taking those

kids, no, no, no, no. Grabs her by the

hair, grabs the first thing he can get his

hands on and starts going at her. This

isn't about he was drinking something

that day, this is a jealous, controlling

husband who was not going to let his

property leave that house.

Shands objected and moved to strike, and the trial court

instructed the State to continue.

[25] [26] We find the trial court did not abuse its discretion

in denying Shands's motion to strike because the State's

comments were not outside of the evidence. See State v.

Penland, 275 S.C. 537, 539, 273 S.E.2d 765, 766 (1981)

(“The control of argument is normally within the discretion

of the trial [court], and we will not disturb [its] ruling whe[n]

there is no abuse of discretion.”). In its closing argument, the

State “may argue [its] version of the testimony presented, and

furthermore may comment on the weight to be accorded such

testimony.” State v. New, 338 S.C. 313, 319, 526 S.E.2d 237,

240 (Ct. App. 1999). In the instant case, Shands responded

affirmatively when the State asked if he “got pretty jealous

and kind of controlling” and if “things ... started falling apart.”

Sharon testified Shands was “controlling” in the months

leading up to the incident, and she “walked on pins and

needles every day [because she] didn't know what to expect”

from him. The neighbor recalled Shands got “a little *128

jealous at times” if someone tried to talk to Sharon, and

Shands “would say something to ... get her attention.” The

evidence further showed Shands did not allow Sharon to

leave the house when she tried to leave with the children,

pulling her by the hair to get her to stay. Furthermore,

Shands was not prejudiced by the comments in light of the

overwhelming evidence of his guilt, including his testimony

that he committed the acts in question and his lack of a

viable defense. See Humphries v. State, 351 S.C. 362, 373,

570 S.E.2d 160, 166 (2002) (“Improper comments do not

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

A. 14

automatically require reversal if they are not prejudicial to

the defendant, and the appellant has the burden of proving

he did not receive a fair trial because of the alleged improper

argument.”). Therefore, we find the trial court did not err

in refusing to strike the State's comments during its closing

argument.

VI. INFERRED MALICE JURY INSTRUCTION

Shands argues the trial court erred in instructing the jury that

malice could be inferred from the use of a deadly weapon and

giving the example of a knife as a deadly weapon. Shands

contends the instruction was **536 contrary to State v.

Belcher 4 because the attempted murder charge could have

been reduced or mitigated by the lesser-included offense of

assault and battery of a high and aggravated nature (ABHAN)

or Shands's defense that he lacked criminal intent. We agree

that the trial court erred in instructing the jury that malice

could be inferred from the use of a deadly weapon.

murder. See State v. King, 422 S.C. 47, 54, 810 S.E.2d 18, 22

(2017). The majority opinion, written by Chief Justice Beatty,

held attempted murder requires the specific intent to commit

murder, which is a higher level of mens rea than is required

for murder. 6 Id. at 54–64, 810 S.E.2d at 22–27. The court

discussed the fact that attempt crimes require the highest level

of mens rea because “it is logically impossible to attempt an

unintended result.” Id. at 56, 810 S.E.2d at 23 (quoting 22

C.J.S. Criminal Law: Substantive Principles § 156, at 221–

22 (2016) ). The court explained attempted murder was not a

mere codification of ABWIK, a general intent crime, because

the General Assembly “purposefully add[ed] the language

‘with intent to kill’ to ‘malice aforethought, either express or

implied.’ ” 7 King, 422 S.C. at 61, 810 S.E.2d at 25. After

*130 considering the legislative history of the attempted

murder statute, the court held a “specific intent to kill” is

an element of attempted murder, and the trial court erred in

instructing the jury that it was not. Id. at 61–64, 810 S.E.2d at

25–27. Although the majority opinion in King did not directly

address the issue of whether an inferred malice charge was

385 S.C. 597, 685 S.E.2d 802 (2009).

warranted in an attempted murder case, the court indicated

[27] [28] [29] “The implication of malice may arise from its belief in a footnote that malice can never be implied in an

attempted murder case. See id. at 64 n.5, 810 S.E.2d at 27 n.5.

the use of a deadly weapon.” State v. Campbell, 287 S.C. 377,

The court stated:

379, 339 S.E.2d 109, 109 (1985) (per curiam). However, “the

‘use of a deadly weapon’ implied malice instruction has no

While we find it unnecessary to address King's additional

place in a murder (or assault and battery with intent to kill [ 5 ]

sustaining ground [that the trial court erred in instructing

[ (ABWIK) ] ) prosecution whe[n] evidence is presented

the jury that malice could be inferred from the use **537

that would *129 reduce, mitigate, excuse[,] or justify the

of a deadly weapon], we would respectfully suggest

killing (or the alleged [ABWIK] ).” Belcher, 385 S.C. at 610,

to the General Assembly to re-evaluate the language

685 S.E.2d at 809 (footnote omitted). “A deadly weapon is

following “malice aforethought” as the inclusion of the

generally defined as ‘any article, instrument[,] or substance

word “implied” in section 16-3-29 is arguably inconsistent

[that] is likely to produce death or great bodily harm.’ ”

with a specific[ ]intent crime. See [Keys v. State, 104 Nev.

Campbell, 287 S.C. at 379, 339 S.E.2d at 109 (quoting State

736, 766 P.2d 270, 273 (1988) ] (stating, “[o]ne cannot

v. Sturdivant, 304 N.C. 293, 283 S.E.2d 719, 725 (1981) ).

attempt to kill another with implied malice because there

is no such criminal offense as an attempt to achieve an

According to the Omnibus Crime Reduction and

unintended result” (citation and internal quotation marks

Sentencing Reform Act, the Legislature abolished the

omitted) ). Moreover, if there is no evidence that one

offense of ABWIK and replaced it with attempted

charged with attempted murder had express malice and a

murder. See Act No. 273, 2010 S.C. Acts 1949–50.

specific intent to kill, we believe the crime would involve

ABWIK was “an unlawful act of violent nature to

a lower level of intent[, and] thus, would fall within the

the person of another with malice aforethought, either

lesser degrees of the assault and battery offenses codified

express or implied.” State v. Hinson, 253 S.C. 607, 611,

in section 16-3-600. See S.C. Code Ann. § 16-3-600 (2015

172 S.E.2d 548, 550 (1970).

& Supp. 2016) (identifying levels and degrees of assault

“A person who, with intent to kill, attempts to kill another

and battery offenses).

person with malice aforethought, either expressed or implied,

commits the offense of attempted murder.” S.C. Code Ann.

Id.

§ 16-3-29 (2015). In State v. King, our supreme court

considered the requisite mens rea required for attempted

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

A. 15

liberties or familiarities with a female,

Acting Justices Benjamin and Hayes concurred in the

majority opinion. Acting Justice Pleicones concurred in

result only and did not write a separate opinion.

Justice Kittredge wrote a concurrence to express his

belief that the General Assembly intended to codify

ABWIK when it enacted the attempted murder statute.

King, 422 S.C. at 71, 810 S.E.2d at 30 (Kittredge,

J., concurring). Justice Kittredge noted the statutory

offense of attempted murder had an ambiguity because

the language “with intent to kill” was included with

the “seemingly contradictory” language of “with malice

aforethought, either expressed or implied.” Id. at 73,

810 S.E.2d at 32 (Kittredge, J., concurring). However,

Justice Kittredge believed a specific intent to kill was

not required because ABWIK, a general intent crime,

included “with intent to kill” in the name of the common

law crime. Id. at 73–74, 810 S.E.2d at 32 (Kittredge,

J., concurring). Justice Kittredge further pointed to “the

legislature's use of the verbatim definition of ABWIK

in the section 16-3-29 offense of attempted murder.”

Id. at 73, 810 S.E.2d at 32 (Kittredge, J., concurring).

Therefore, Justice Kittredge would have affirmed the

trial court's instruction that specific intent to kill was not

an element of attempted murder. Id. at 73–74, 810 S.E.2d

at 32 (Kittredge, J., concurring).

and resistance to lawful authority. [ 8 ]

State v. Green, 327 S.C. 581, 585, 491 S.E.2d 263, 264–65

(Ct. App. 1997) (internal citations omitted).

The legislature codified ABHAN in section 16-3-600(B)

(1) of the South Carolina Code (2015). However, the

codified version's effective date was after the dates of

the alleged offenses in this case. Thus, the pre-codified

version of ABHAN applies to Shands's case. See Pierce

v. State, 338 S.C. 139, 145, 526 S.E.2d 222, 225 (2000)

(“The application of a new or amended criminal statute

may prompt a defendant to allege a violation of the Ex

Post Facto Clause, arguing the court may not apply a

statute enacted or amended after the date of an offense

in his case.”).

[35] In light of our supreme court's discussion in King, we

find the State needed to prove Shands acted with express

malice and the specific intent to kill in order to be found

guilty of attempted murder. See King, 422 S.C. at 54–64,

810 S.E.2d at 22–27. Therefore, we question whether an

implied malice instruction is proper in any attempted murder

trial. However, even if an implied malice instruction was

[30] [31] [32] [33] [34] “[S]pecific intent means that

appropriate in an attempted murder case, we do not believe

the defendant consciously intended the completion of acts

it was appropriate in Shands's case. As Shands and the State

comprising the [completed] offense.” State v. Nesbitt, 346

recognized at trial, if the jury did not believe Shands had

S.C. 226, 231, 550 S.E.2d 864, 866 (Ct. App. 2001) (quoting

the specific intent to kill, he would have been guilty of the

State v. Sutton, 340 S.C. 393, 397, 532 S.E.2d 283, 285

lesser-included offense of ABHAN. Despite the number of

(2000) ). “ABHAN is a lesser-included offense of attempted

times Shands stabbed Sharon and the nature of the attack,

murder.” State v. Middleton, 407 S.C. 312, 315, 755 S.E.2d

a jury could have found Shands only had a general intent

432, 434 (2014). “An ABHAN charge is *131 appropriate

to kill instead of the higher mens rea of specific intent to

when the evidence demonstrates the defendant lacked the

kill. See State v. Kinard, 373 S.C. 500, 504, 646 S.E.2d 168,

requisite intent to kill.” State v. Dennis, 402 S.C. 627, 638,

169 (Ct. App. 2007) (“ ‘General intent’ is defined as ‘the

742 S.E.2d 21, 27 (Ct. App. 2013) (per curiam) (quoting State

state of mind required for the commission of certain common

v. Coleman, 342 S.C. 172, 176, 536 S.E.2d 387, 389 (Ct. App.

law crimes not requiring specific intent’ and it ‘usually takes

2000) ).

the form of recklessness ... or negligence.’ ” *132 (quoting

BLACK'S LAW DICTIONARY (7th ed. 1999) ) ); Nesbitt,

346 S.C. at 231, 550 S.E.2d at 866 (“[S]pecific intent means

that the defendant consciously intended the completion of acts

[ABHAN] is the unlawful act of

comprising the [completed] offense.” (quoting Sutton, 340

violent injury to another accompanied

S.C. at 397, 532 S.E.2d at 285) ). Therefore, because there

by circumstances of aggravation.

was evidence to reduce Shands's charge, the trial court erred in

Circumstances of aggravation include

instructing the jury that malice could be inferred from the use

the infliction of serious bodily injury,

of a deadly weapon. See Belcher, 385 S.C. at 610, 685 S.E.2d

great disparity in the ages or physical

at 809 (holding the use of a deadly weapon inferred malice

conditions of the parties, a difference

instruction is not proper **538 when there was evidence to

in sexes, the purposeful infliction of

reduce the crime).

shame and disgrace, taking indecent

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

A. 16

This error requires reversal of Shands's conviction for

attempted murder. 9 However, we find the trial court's error

caused Shands no prejudice as to his convictions for firstdegree burglary, kidnapping, first-degree assault and battery,

and possession of a weapon during the commission of a

violent crime, and we affirm those convictions.

Because Shands's argument regarding the propriety of

the inferred malice instruction is dispositive, we do not

consider Shands's argument that giving the example of

a knife as a deadly weapon was a comment on the facts

of the case. See State v. Henson, 407 S.C. 154, 167 n.4,

754 S.E.2d 508, 515 n.4 (2014) (declining to reach an

additional argument where the resolution of the first issue

was dispositive).

VII. CLOSING ARGUMENT PROCEDURE

Shands argues the trial court violated his due process rights 10

by refusing to require the State to open fully on the law and

the facts in its initial closing argument so he would have

the opportunity to respond to the State's entire argument in

his closing argument. Shands argues the State “revealed to

the jurors for the first time [its] theory about the kidnapping

charge” in its reply closing argument. Shands also states he

would have liked to respond to

what [he] considered to be somewhat

an emotional attack on [him] both

in some of how it was delivered

but in particular[ ] the language

that was used. [He] would have

responded about what [the State] said

about kidnapping, [he] would have

responded to what [it] said about

placing the police on *133 trial, that

was not [his] purpose. And [he] would

have responded to ... the argument

made about Sharon leaving that day

as well as a number of things that

[he thought it] said that exceeded the

bounds of what the evidence really

was ....

Shands contends even if some of the evidence fairly arose

from the evidence at the trial, “there was [no] guarantee the

[State] would make those same arguments during [its] closing

argument” and it was “fundamentally unfair to require [him]

to predict the prosecutor's closing argument.”

Due process requires that no person shall be deprived of

life, liberty, or property without due process of law. U.S.

CONST. amend. XIV § 1; S.C. CONST. art. 1, § 3.

In State v. Beaty, our supreme court declined to create a rule

specifying “the content and order of closing arguments in

criminal cases in which a defendant introduces evidence,”

noting it did not have the authority “to promulgate a

procedural rule for future cases by simply issuing an opinion.”

State v. Beaty, 423 S.C. 26, 36–37, 39, 46, 813 S.E.2d

502, 507, 509, 512 (2018). The supreme court extensively

discussed the history of South Carolina's rules and practices

surrounding the procedure of closing arguments in criminal

cases. Id. at 36–43, 813 S.E.2d at 507–11. The court explained

the existing procedure applicable to Shands's case as follows:

[I]n cases in which a defendant

introduces evidence of any kind, even

through a prosecution witness, the

State has the final closing argument.

However, in cases in which the State is

entitled to the reply argument, there is

no common law or codified rule as to

whether the State must open in full on

the law, or the facts, or both, or neither,

and there is no rule governing the

content of the State's reply argument.

Id. at 42, 813 S.E.2d at 510–11. The court, instead, noted

it “retain[ed] the authority to determine—on a case-by-case

basis—whether a defendant's due process rights have been

violated by procedural methods employed during a trial.”

Id. In Beaty, the supreme court found the State's closing

arguments did not violate the defendant's procedural due

process rights because the State's theories were (1) “arguably

a proper response” to the defendant's closing argument, (2)

“largely inconsequential to the question” of whether the

defendant murdered the victim, (3) supported by evidence in

the record, and (4) not prejudicial to the defendant. Id. at 43–

47, 813 S.E.2d at 511–13.

*134 [36]

[37]

[38] Therefore, we must determine

whether Shands's due process rights were violated in this

instance. “[P]rocedural due process contemplates a fair trial.”

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

A. 17

**539 Id. at 43, 813 S.E.2d at 511. “A denial of due process

occurs when a defendant in a criminal trial is denied the

fundamental fairness essential to the concept of justice.” Id.

(quoting State v. Hornsby, 326 S.C. 121, 129, 484 S.E.2d

869, 873 (1997) ). Our “case law focuses upon allegedly

inflammatory or unsupported content of the State's closing

argument, not upon whether the State must open in full on the

facts and not upon reply arguments which have a basis in the

record but to which a defendant is not allowed to respond.” Id.

“Improper comments do not automatically require reversal if

they are not prejudicial to the defendant, and the appellant has

the burden of proving he did not receive a fair trial because

of the alleged improper argument.” Humphries, 351 S.C. at

373, 570 S.E.2d at 166. “The relevant question is whether the

[State]'s comments so infected the trial with unfairness as to

make the resulting conviction a denial of due process.” Id.

trial.” We believe the State's comments during its reply

closing argument were arguably in response to Shands's

closing argument highlighting the fact that the police officers

never asked him what his side of the story was and stating

the lack of information in the case was “the fault of the police

officers.” Furthermore, these comments were insignificant to

the issues before the jury.

[39] Although Shands argues he did not get a chance to reply

to the State's version of the facts, we find he was aware

of the State's arguments and could have used his closing

argument to respond to them. Shands was aware of the State's

theory of the kidnapping charge because the State explained

what facts it believed supported the charge in response to

Shands's directed verdict motion. The State indicated the

kidnapping charge was appropriate because Shands grabbed

Sharon by the hair to pull her back into the house and would

not let her leave through the garage. The State indicated in its

initial closing argument that the kidnapping in Shands's case

was not “the traditional kidnapping” a person usually thinks

about when “there is [an] Amber alert and somebody's child

is missing.” The State explained: “Kidnapping is confining

someone against their will and it doesn't have to be for a

long time, there is no set amount of time that you have to

confine somebody.” Although the jury had not yet heard the

State's full theory for kidnapping, Shands was aware of its

theory and knew from the State's initial closing argument

that the State was focusing on a brief confinement to support

the kidnapping charge. Furthermore, the State's comments in

its closing argument regarding kidnapping were arguably in

reply to *135 Shands's closing argument comment that he

“had no idea how [the State] would explain kidnapping to [the

jury] under this evidence.”

VIII. DIRECTED VERDICT

Shands argues the trial court erred in denying his motion

for a directed verdict on the kidnapping charge because

the evidence did not show that Shands “actually restrained”

Sharon. Shands further argues the kidnapping statute is

unconstitutionally vague and overbroad because the facts of

his case did not put him on notice that his conduct could

constitute kidnapping. We disagree.

Regarding Shands's argument that the State “emotional[ly]

attack[ed]” him in its reply closing argument, we believe this

matter was inconsequential to the issue of Shands's guilt,

and as discussed in Section V, these comments were not

prejudicial. Shands further argued he would have responded

to the State's comments about him “placing the police on

Accordingly, while the State did “not restrict its reply

argument to matters raised by” Shands and the trial court did

not allow him to respond to the foregoing points, we hold

Shands did not suffer prejudice as a result because he was not

denied “the fundamental fairness essential to the concept of

justice.” See Beaty, 423 S.C. at 45, 813 S.E.2d at 512 (quoting

Hornsby, 326 S.C. at 129, 484 S.E.2d at 873).

“When ruling on a motion for a directed verdict, the trial court

is concerned with the existence or nonexistence of evidence,

not its weight.” State v. Hernandez, 382 S.C. 620, 624, 677

S.E.2d 603, 605 (2009). If the State fails to produce evidence

of the charged offense, then the defendant is entitled to a

directed verdict. Id. “In an appeal from the denial of a directed

verdict motion, the appellate **540 court must view the

evidence in the light most favorable to the State.” *136 State

v. Cope, 405 S.C. 317, 348, 748 S.E.2d 194, 210 (2013).

“If there is any direct evidence or substantial circumstantial

evidence reasonably tending to prove the guilt of the accused,

the [c]ourt must find the case was properly submitted to the

jury.” Id. (quoting State v. Curtis, 356 S.C. 622, 633–34, 591

S.E.2d 600, 605 (2004) ).

[40]

[41] Kidnapping occurs when one “unlawfully

seize[s], confine[s], inveigle[s], decoy[s], kidnap[s],

abduct[s,] or carr[ies] away” another person. S.C. Code

Ann. § 16-3-910 (2015). “A kidnapping commences when

[a victim] is [lawfully] deprived of his [or her] freedom and

continues until freedom is restored.” State v. Kornahrens, 290

S.C. 281, 287, 350 S.E.2d 180, 184 (1986). “[T]he crime

of kidnapping in South Carolina is broad in scope” and

“encompass[es] restraint regardless of duration.” Lozada v.

State v. Shands, 424 S.C. 106 (2018)

817 S.E.2d 524

A. 18

“encompass[es] restraint regardless of duration”). Therefore,

we affirm the trial court's denial of Shands's motion for a

directed verdict on the kidnapping charge.

S.C. Law Enf't Div., 395 S.C. 509, 513, 719 S.E.2d 258, 260

(2011).

[42] We find Shands's argument regarding the

constitutionality of the kidnapping statute is without merit

because our supreme court has already held the kidnapping

statute is not unconstitutionally vague and overbroad. See

State v. Smith, 275 S.C. 164, 166, 268 S.E.2d 276, 277 (1980)

(“The terms of th[e] statute are clear and unambiguous. It

proscribes the forceful seizure, confinement[,] or carrying

away of another against his will without authority of law. We

hold it is not unconstitutionally vague ....”). 11 Further, we

hold the trial court did not err in denying Shands's motion for

a directed verdict because, viewing the evidence in the light

most favorable to the State, there was evidence to support

the kidnapping charge. Sharon testified she tried to leave the

house, but Shands kept closing the garage door so she could

not escape. Sharon also testified Shands pulled her by the hair

and tried to drag her into the house so she could not leave.

The sons both recalled Shands grabbing Sharon by the hair as

*137 well. We find this evidence supported the kidnapping

charge. Shands appears to argue that because his attempts to

close the garage door and pull Sharon inside the house by her

hair were not ultimately successful in preventing Sharon from

leaving the house, his actions were only attempts to restrain,

rather than actual restraints. We disagree. The kidnapping

statute does not prescribe a duration, and therefore, by

preventing Sharon from leaving the house, Shands restrained

and confined her for the purposes of the statute. See Lozada,

395 S.C. at 513, 719 S.E.2d at 260 (stating that kidnapping

End of Document

Other than an amendment to the maximum sentence,

the kidnapping statute in 1980 was identical to the

kidnapping statute in effect at the time of Shands's

case. See Smith, 275 S.C. at 166, 268 S.E.2d at 277

(“Whoever shall unlawfully seize, confine, inveigle,

decoy, kidnap, abduct or carry away any other person by

any means whatsoever without authority of law, ..., shall

be guilty of a felony and, upon conviction, shall suffer the

punishment of life imprisonment ...” (quoting S.C. Code

Ann. § 16-3-910 (Supp. 1979) ) ).

CONCLUSION

For the foregoing reasons, we affirm Shands's convictions

for first-degree burglary, kidnapping, first-degree assault and

battery, and possession of a weapon during the commission of

a violent crime, and we reverse his conviction for attempted

murder.

AFFIRMED IN PART AND REVERSED IN PART.

WILLIAMS and MCDONALD, JJ., concur.

All Citations

424 S.C. 106, 817 S.E.2d 524

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