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State v. Kelsey6/8/1998
er and criminal conspiracy?
(2) Did the family court err in transferring jurisdiction over Kelsey's case to the Court of General Sessions?
(3) Did the trial court err in denying Kelsey's motion for a change of venue?
(4) Did the trial court err in failing to declare a mistrial when Payne's attorney pitted Kelsey's testimony against a police officer's testimony?
(5) Did the trial court err in not allowing testimony and introduction of evidence to rebut the State's innuendoes that Kelsey's statement was not given in earnest?
(6) Did the trial court err in precluding Kelsey from introducing Payne's statement into evidence?
(7) Did the trial court err in not allowing Kelsey to admit evidence regarding co-defendant Payne?
(8) Did the trial court err in denying Kelsey's motion for severance?
(9) Did the trial court err in denying Kelsey's motion for a mistrial when Payne's attorney cross-examined Kelsey about prior bad acts that allegedly occurred in Georgia?
(10) Did the trial court err in admitting a diagram and photographs of the crime scene into evidence?
(11) Did the trial court err in failing to give proper conspiracy and mere presence instructions?
(12) Did the trial court err in refusing to charge the jury on the law of mistake of fact?
LAW/ANALYSIS
I. DIRECTED VERDICT MOTIONS
Kelsey argues that the trial court erred in denying his directed verdict motions because there was insufficient proof that he was guilty of murder and criminal conspiracy. We disagree.
At the close of the State's case in chief, the defense moved for directed verdicts on the murder and conspiracy charges, arguing the evidence was insufficient to support these charges. The court denied the motions. The defense again moved for directed verdicts on murder and conspiracy at the end of its case. The court again denied the motions.
In reviewing the denial of a motion for a directed verdict, the evidence must be viewed in the light most favorable to the State, and if there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, an appellate court must find that the case was properly submitted to the jury. State v. Rowell, 326 S.C. 313, 487 S.E.2d 185 (1997); State v. Venters, 300 S.C. 260, 387 S.E.2d 270 (1990); State v. Edwards, 298 S.C. 272, 379 S.E.2d 888 (1989). In ruling on a motion for a directed verdict, the trial court is concerned with the existence of evidence, not its weight. State v. Williams, 303 S.C. 274, 400 S.E.2d 131 (1991).
A . MURDER
Murder is "the killing of any person with malice aforethought, either express or implied." S.C. Code Ann. Section 16-3-10 (1985). "Malice" is the wrongful intent to injure another and indicates a wicked or depraved spirit intent on doing wrong. State v. Johnson, 291 S.C. 127, 352 S.E.2d 480 (1987). Malice may be implied from the defendant's use of a deadly weapon. State v. Campbell, 287 S.C. 377, 339 S.E.2d 109 (1985).
In the instant case, we find there was sufficient evidence to submit the murder charge to the jury. The following evidence supports our Conclusion:
(1) Lee's testimony that Kelsey essentially masterminded the construction of the pipe bombs at Kirchner's house on July 11; that Kelsey and Payne were alone together in the woods with Richey's body; that Lee believed Richey was definitely alive, but unconscious, while in the car; and that Kelsey and Payne were running out of the woods away from Richey's body when the pipe bomb exploded;
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