State v. Washington

THE STATE OF SOUTH CAROLINA
In The Supreme Court

The State, Respondent,

v.

Sha'quille Washington, Petitioner.

Appellate Case No. 2018-001878

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Berkeley County
Kristi Lea Harrington, Circuit Court Judge

Opinion No. 27992
Heard March 11, 2020 – Filed September 2, 2020

AFFIRMED IN PART, VACATED IN PART,
REVERSED IN PART, AND REMANDED

Jack B. Swerling, of Columbia, and Katherine Carruth
Goode, of Winnsboro, for Petitioner.

Attorney General Alan McCrory Wilson, Senior Assistant
Attorney General David A. Spencer, both of Columbia;
and Solicitor Scarlett Anne Wilson, of Charleston, for
Respondent.
JUSTICE JAMES: Sha'quille Washington ("Petitioner") was indicted for the
murder of Herman Manigault and was convicted of the lesser included offense of
voluntary manslaughter. The court of appeals affirmed Petitioner's conviction. State
v. Washington, 424 S.C. 374, 818 S.E.2d 459 (Ct. App. 2018). We granted
Petitioner's petition for a writ of certiorari to review the court of appeals' decision.
We hold the trial court erred in giving an accomplice liability instruction, and we
hold Petitioner was prejudiced by this error. Therefore, we affirm in part, vacate in
part, and reverse in part, and we remand to the circuit court for a new trial on the
charge of voluntary manslaughter.

I. Factual and Procedural History
On August 25, 2013, a large crowd gathered at "A Place in the Woods," a
nightclub in Huger, South Carolina. Herman "Trey" Manigault (the victim in this
case) and his cousin, Larry Jenkins, were among those present. According to trial
testimony, Manigault told multiple people that Petitioner and Larry Kinloch,
Petitioner's uncle, were following him around the establishment and staring him
down. Arianna Coakley, Manigault's girlfriend, testified Manigault told her he was
about to "snap" because Petitioner kept looking at him. Aja Williams, the bartender,
testified Manigault said to her, "[Kinloch] going to shoot me, they going to kill me."

At closing time, a multitude of club patrons, including Manigault, Jenkins,
Kinloch, and Petitioner, exited the building to the parking lot. A fight ensued in the
parking lot. Testimony as to the participants in the fight, the specifics of the fight,
and the shooting of Manigault varied greatly between the State's witnesses,
Petitioner's witnesses, and Petitioner's statement to law enforcement.

Jenkins testified he joined the fight after at least two people hit Manigault. He
could not identify who those two people were, but he testified Petitioner was "out
there" during the fight. Jenkins testified he heard gunshots near the end of the fight.
He checked himself for wounds and saw Manigault on the ground. Jenkins testified
he saw Petitioner holding a small silver revolver in his right hand and firing towards
Manigault. He testified he was 100% sure Petitioner shot Manigault.

Ms. Coakley testified that moments before the shooting, Petitioner said
something to Manigault. Coakley testified Manigault responded by asking
Petitioner, "what's up" and Petitioner struck Manigault with his left hand. Coakley
testified Manigault slid towards the ground and Petitioner continued to hit him.
Coakley said she raised a glass beer bottle to hit Petitioner but backed down when
Petitioner held a gun to her face and said, "I ain't playing, I ain't playing." Coakley
testified Petitioner turned and ran, and then she heard four gunshots.

Petitioner's written statement to the police was read to the jury. Petitioner
stated he arrived at the club around 2:00 a.m. and spoke to "a few ladies." He stated
he walked outside, heard a commotion, and saw three people fighting. According to
Petitioner, "the victim" (presumably Manigault) walked off, and an unknown person
Petitioner termed "the suspect" fired a shot from a revolver at Manigault. Petitioner
said he was four to five feet away from them at this point. Petitioner stated he was
several feet further away from them when he heard two more shots. Petitioner stated
he called the police the next morning to give a statement and clear his name after his
grandmother informed him people accused him of shooting Manigault.

Kinloch testified for the State and initially denied any participation in the
fight, but he eventually described his involvement as holding onto Larry Jenkins
without throwing any punches. During its questioning of Kinloch, the State played
a nine-minute post-shooting recorded phone conversation between Kinloch and his
incarcerated brother Patrick. The solicitor quoted portions of the call while
questioning Kinloch, but neither the recording nor a transcript of it was introduced
into evidence. Kinloch, clearly a reluctant witness, testified he did not remember
the phone call, and he did not respond to many of the solicitor's questions about the
call. Apparently, Kinloch told his brother he initially fought a big, "light-skinned
dude" (probably Jenkins) and then "got [Manigault] on the car. Me and him going
back and forth. Dow, dow, dow [referring to three gunshots]." Kinloch also
apparently told his brother he saw Petitioner shoot Manigault.

During cross-examination, Petitioner pressed Kinloch to admit he was the one
who shot Manigault. Kinloch denied he shot Manigault. Petitioner asked Kinloch
if he told Kenneth Quinton Grant and Darlene Washington (presumably Petitioner's
grandmother) he shot Manigault. Kinloch denied this as well.

Petitioner called Erin Presnell, M.D., the forensic pathologist who conducted
Manigault's autopsy, to testify as to Manigault's blood alcohol content at the time of
autopsy. Before the jury, Petitioner asked Dr. Presnell, "What was the alcohol level
--," and the State interjected, "Objection, Your Honor. 404," obviously a reference
to Rule 404 of the South Carolina Rules of Evidence. The trial court then held an
off-the-record bench conference1 to discuss the issue. The trial court then excused
the jury and sustained the State's objection, explaining, "There has been abundant
testimony as to the fact that there was drinking or not drinking by the victim, and so
I have excluded this testimony, but you may continue [with a proffer of the
testimony]." During the proffer, Dr. Presnell testified Manigault "had a blood-
alcohol level of .235," which she categorized as "high." She testified that while she
"imagined" Manigault "acted intoxicated," she could not give an opinion as to
"whether he was aggressive or subdued or what his actual mannerisms were." She
testified such a high blood alcohol level could have resulted in impaired judgment.
The record contains no argument from the parties as to why the testimony was or
was not admissible, and the trial court did not further explain its ruling. The State
argued to the court of appeals that the context of the trial court's ruling made it clear
the trial court excluded the testimony as irrelevant under Rule 402, SCRE. The court
of appeals held the testimony was irrelevant and further held that even if it was
relevant, any probative value was substantially outweighed by the danger of unfair
prejudice under Rule 403, SCRE. Washington, 424 S.C. at 406-07, 818 S.E.2d at
476. The court of appeals also held that even if the trial court erred in excluding the
testimony, Petitioner suffered no prejudice because the jury found Petitioner guilty
of only voluntary manslaughter, which carried with it a finding Petitioner acted with
sufficient legal provocation. Id. at 407, 818 S.E.2d at 476.

Petitioner called Kevin Watson to testify, but the trial court refused to allow
him to testify after concluding he disobeyed a pre-trial sequestration order. Three
other witnesses called by Petitioner were Robin Williams, Tyson Singleton, and
Kenneth Quinton Grant. Robin Williams testified she was talking to her cousin as
they walked out of the club at closing time when she heard "a lot of fussing" and
saw a young lady holding a glass bottle in Petitioner's face. According to Robin
Williams, there was a van parked nearby. She testified there was a fight taking place
on one side of the van, and Petitioner and the young lady were on the other side of
the van. She testified Petitioner "never had a gun." She also testified she heard two
gunshots about five seconds after she saw the lady holding the bottle in Petitioner's
face and Petitioner "ran on the second shot." She testified she then heard two more

1
During this trial, the trial court held over twenty off-the-record bench conferences
after evidentiary objections had been made. After most of these conferences, neither
the arguments of counsel nor the bases for the trial court's rulings were put on the
record.
shots about three seconds apart but Petitioner was not anywhere near where those
two shots were fired.

Tyson Singleton testified he was talking to Robin Williams in the parking lot
when he heard three shots fired in the parking lot. He testified he did not see who
fired the shots because a van blocked his view. He testified he saw Petitioner "in the
road" next to some woods before the first shot was fired and Petitioner was nowhere
near where any of the shots were fired. He also testified he saw Kinloch inside the
club before closing time but did not see him in the parking lot after closing.

Petitioner called Kenneth Quinton Grant, Petitioner's second cousin and—
according to Grant—Kinloch's best friend, to testify about a conversation Grant
claimed he had with Kinloch after the shooting. Grant testified he was not present
at the club when the shooting occurred; however, he testified he saw Kinloch at
Kinloch's house twenty to twenty-five minutes after the shooting, and Kinloch
admitted to him he shot Manigault. The State objected on hearsay grounds, and the
trial court asked Petitioner if there was an exception to the hearsay rule that would
allow the testimony. Petitioner responded, "[Kinloch] already testified. My God."
Petitioner also argued Kinloch's statement to Grant qualified as a present sense
impression under Rule 803(1), SCRE. The trial court sustained the State's hearsay
objection and instructed the jury to disregard Grant's statement. Despite this ruling,
Petitioner again asked Grant whether Kinloch admitted to shooting Manigault, and
Grant confirmed. The State again objected, and the trial court again sustained the
objection and instructed the jury to disregard the testimony.2 Before the court of
appeals, Petitioner argued Kinloch's admission to Grant was a prior inconsistent
statement and therefore admissible as non-hearsay under Rule 801(d)(1)(A), SCRE.

During the charge conference, the State first argued it was entitled to an
accomplice liability instruction because the defense tried to suggest Kinloch shot

2
While this is not an issue in this appeal, during his cross-examination of Grant, the
solicitor repeatedly challenged the veracity of Grant's testimony by referring to pre-
trial conversations the two had about Grant's account. Since we remand this case for
a new trial, we are compelled to note the court of appeals' well-reasoned holding in
State v. Sierra, 337 S.C. 368, 379, 523 S.E.2d 187, 192 (Ct. App. 1999), that it is
generally improper for the prosecutor to impeach a witness by referring to out-of-
court statements allegedly made by that witness to the prosecutor.
Manigault. The State argued to the trial court, "I don't believe there's any evidence
in the record that Larry Kinloch was the shooter, but there's certainly been multiple
indications from the defense during this trial that he was." The "multiple
indications" referred to by the State presumably consisted of (1) Petitioner's
unsuccessful attempts to introduce Grant's testimony that Kinloch told Grant he shot
Manigault and (2) Petitioner's cross-examination of Kinloch during which Petitioner
pressed Kinloch (a) to admit he told Grant and Darlene Washington he shot
Manigault and (b) to admit he was known on the streets as the shooter. The State
also argued that if a person is involved in an altercation, a defendant who participates
in the altercation is criminally responsible for the end result. On this point, the State
argued, "even if it was Larry Kinloch that ultimately did shoot the victim in this case,
the defendant was part of the assault." Petitioner acknowledged he tried to introduce
Grant's testimony that Kinloch told him he was the shooter, but Petitioner noted the
trial court sustained the State's objections and instructed the jury to disregard Grant's
testimony on that issue.

Over Petitioner's objection, the trial court charged the jury on accomplice
liability. Two hours into deliberations, the jury asked the trial court for clarification
of the law on reasonable doubt, accomplice liability, and voluntary manslaughter. A
copy of the question is in the record, but the record does not reflect whether the trial
court responded. Three hours later, the jury sent a note to the trial court stating it
was deadlocked. The trial court gave the jury an Allen charge3 and adjourned for the
evening. Three hours into deliberations the next morning, the jury asked the trial
court its second question, "Can we use [accomplice liability] to support legal
provocation for parties acting in concert with victim? Would parties acting in
concert with the victim constitute sufficient legal provocation towards actions
against victim?" The trial court responded in writing, "You have been given all
instructions on the law in my charge to you. Please continue your deliberations."
Approximately two hours after its second question, the jury found Washington not
guilty of murder but guilty of the lesser included offense of voluntary manslaughter.

Petitioner appealed and presented six arguments to the court of appeals: (1)
the trial court erred in excluding Kenneth Quinton Grant's testimony on hearsay
grounds; (2) the trial court erred in excluding Dr. Presnell's testimony; (3) the trial

3
Allen v. United States, 164 U.S. 492, 501-02 (1896) (allowing a supplemental jury
instruction given by the trial judge to encourage a deadlocked jury to reach an
agreement).
court erred in excluding the testimony of Kevin Watson; (4) the trial court erred in
refusing to charge self-defense; (5) the trial court erred in instructing the jury on the
theory of accomplice liability; and (6) the trial court erred in giving the jury an Allen
charge. The court of appeals affirmed. State v. Washington, 424 S.C. 374, 818
S.E.2d 459 (Ct. App. 2018). This Court granted Petitioner a writ of certiorari on all
issues except for the propriety of the Allen charge. As we will explain, the trial court
erred in instructing the jury on accomplice liability, and Petitioner was prejudiced
by this error. We therefore reverse Petitioner's conviction for voluntary
manslaughter and remand to the circuit court for a new trial on that charge.

II. Discussion

A. Exclusion of Grant's Testimony

To give clear context to our holding that the trial court erred in instructing the
jury on accomplice liability, we must first review the trial court's exclusion of the
testimony of defense witness Kenneth Quinton Grant. Petitioner sought to elicit
Grant's testimony that twenty to twenty-five minutes after the shooting, Kinloch told
Grant he shot Manigault. However, the trial court excluded the testimony as
inadmissible hearsay. Petitioner argues Kinloch's alleged statement to Grant that he
shot Manigault was admissible as a prior inconsistent statement under Rule
801(d)(1)(A), SCRE. Petitioner also argues Kinloch's alleged statement to Grant
satisfies both the present sense impression (Rule 803(1), SCRE) and excited
utterance (Rule 803(2), SCRE) exceptions to the rule against hearsay.

Hearsay "is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
Rule 801(c), SCRE. Under Rule 801(d)(1)(A), a prior inconsistent statement of a
witness is not hearsay if "[t]he declarant testifies at the trial or hearing and is subject
to cross-examination concerning the statement, and the statement is [] inconsistent
with the declarant's testimony." Here, Kinloch was the "witness" and the "declarant"
referenced in Rule 801.

When the State objected on hearsay grounds to Grant's testimony about
Kinloch's statement to him, the trial court asked defense counsel, "Is there an
exception?" Defense counsel responded, "[Kinloch] already testified. My God."
The trial court sustained the objection but suggested defense counsel might be able
to ask the question without eliciting hearsay. Defense counsel then asked Grant,
"[Kinloch] said he did it?" The State again objected on hearsay grounds, and the
trial court held an off-the-record bench conference, sustained the objection, and
instructed the jury to disregard Grant's testimony on the point. Immediately
afterwards, there was another bench conference. Then, defense counsel resumed
questioning and again asked Grant if Kinloch told him he shot Manigault. After
Grant answered in the affirmative, the trial court again sustained the State's hearsay
objection and again instructed the jury to disregard the testimony. There is no record
of the substance of the arguments or rulings that took place during these conferences.

The court of appeals questioned whether Petitioner's prior inconsistent
statement argument is preserved for appellate review. Washington, 424 S.C. at 396-
97, 818 S.E.2d at 471. The court of appeals correctly noted the importance of parties
placing their arguments on the record to preserve them for appellate review and then
concluded that even if the Rule 801(d)(1)(A) issue was preserved, the trial court did
not abuse its discretion in excluding Grant's testimony because Petitioner had not
laid a proper foundation under Rule 613(b), SCRE, while questioning Kinloch. Id.
at 397-98, 818 S.E.2d at 471-72. We hold defense counsel's statement to the trial
court that "[Kinloch] already testified. My God" did not preserve for appellate
review the argument Kinloch's alleged statement was a prior inconsistent statement
and therefore not hearsay under Rule 801(d)(1)(A). See State v. Dunbar, 356 S.C.
138, 142, 587 S.E.2d 691, 693-94 (2003) ("In order for an issue to be preserved for
appellate review, it must have been raised to and ruled upon by the trial judge. Issues
not raised and ruled upon in the trial court will not be considered on appeal.").
Consequently, we do not reach the issue of whether Petitioner laid a proper
foundation under Rule 613(b) for the admissibility of Kinloch's prior inconsistent
statement to Grant, and we vacate the portion of the court of appeals' opinion
addressing the Rule 613(b) foundational issue.4 Our holding on this issue shall not

4
In many instances, bench conferences are necessary, and here, the trial court was
attempting to maintain the flow of the trial by holding bench conferences instead of
repeatedly sending the jury out of the courtroom. Even so, we stress the importance
of placing on the record arguments and rulings that took place off the record, whether
during a bench conference, in emails, or in chambers. As the court of appeals noted,
"When a conference takes place off the record, it is trial counsel's duty to put the
substance of the discussion and the trial court's ruling on the record." Washington,
424 S.C at 397, 818 S.E.2d at 471 (quoting Smalls v. State, 422 S.C. 174, 182 n.3,
810 S.E.2d 836, 840 n.3 (2018)). We also note that on remand, it is possible Rule
801(d)(1)(A) and Rule 613(b) can be properly employed to warrant the introduction
of Kinloch's alleged statements to Grant and Darlene Washington. Ironically, if
preclude Petitioner, during retrial, from seeking admission of Kinloch's alleged
statement to Grant under Rule 801(d)(1)(A) and Rule 613(b).

Petitioner also contends the court of appeals erred in affirming the trial court's
ruling that Kinloch's alleged statement to Grant was not admissible under the present
sense impression exception to the rule against hearsay. We agree with the court of
appeals' analysis of this issue5 and therefore affirm. "The admission or exclusion of
evidence is left to the sound discretion of the trial judge, whose decision will not be
reversed on appeal absent an abuse of discretion." State v. Saltz, 346 S.C. 114, 121,
551 S.E.2d 240, 244 (2001). "An abuse of discretion occurs when the trial court's
ruling is based on an error of law[.]" State v. McDonald, 343 S.C. 319, 325, 540
S.E.2d 464, 467 (2000) (quoting Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d
528, 539 (2000)).

Likewise, we agree with the court of appeals' rejection of Petitioner's
argument that Kinloch's alleged statement to Grant was admissible under the excited
utterance exception to the rule against hearsay. Washington, 424 S.C. at 401-04,
818 S.E.2d at 473-74.

B. Accomplice Liability Jury Instruction
Over Petitioner's objection, the trial court instructed the jury on the theory of
accomplice liability, also known as the theory of "the hand of one is the hand of all."
The instruction consisted of the following points: a person who joins with another
to commit a crime is criminally responsible for everything done by the other person
which happens as a natural and probable consequence of the act; if two or more are
together, acting together, and assisting each other in committing the offense, all are
guilty; a finding of a prior arranged plan or scheme is necessary for criminal liability
to attach to the accomplice who does not directly commit the criminal act; when an
act is done in the presence of and with the assistance of others, the act is done by all.
The foregoing is not the complete instruction given by the trial court, but it conveys
the gist of the accomplice liability theory. Assuming an accomplice liability
instruction was appropriate in this case, the instruction given by the trial court was
correct.

extrinsic evidence of Kinloch's alleged statement is introduced, it could render moot
the dispute over the accomplice liability instruction.
5
See Washington, 424 S.C. at 399-401, 818 S.E.2d at 472-73.
 The court of appeals held the trial court did not err in giving the accomplice
liability instruction because "there was evidence presented at trial that could support
a finding that Washington had an accomplice who was the shooter." Washington,
424 S.C. at 420, 818 S.E.2d at 483. The court of appeals observed that aside from
evidence both Petitioner and Kinloch joined together to assault Manigault, there was
evidence both Petitioner and Kinloch followed Manigault around the club that night.
The court of appeals also cited witness testimony that Manigault and Kinloch were
"fussing," and witness testimony that Petitioner was not anywhere near the fight
when the shots were fired. Thus, according to the court of appeals, "there was
equivocal evidence as to who shot [Manigault], and from which the jury could have
found [Petitioner]'s accomplice was the shooter." Id. at 421, 818 S.E.2d at 484.

For an accomplice liability instruction to be warranted, the evidence must be
"equivocal on some integral fact and the jury [must have] been presented with
evidence upon which it could rely to find the existence or nonexistence of that fact."
Barber v. State, 393 S.C. 232, 236, 712 S.E.2d 436, 439 (2011). In this case, there
was evidence Petitioner was the shooter. There was also evidence Petitioner was
not the shooter. The question becomes whether there was equivocal evidence the
shooter, if not Petitioner, was an accomplice of Petitioner. Based on the evidence
presented in this case, Kinloch is the only possible person who could fall into the
category of Petitioner's accomplice. Therefore, if the record contains no evidence
Kinloch was the shooter, then the accomplice liability instruction should not have
been given.

The State argues Ariana Coakley's testimony that Manigault told her,
"[Kinloch] going to shoot me, they going to kill me" was evidence from which a jury
could conclude Kinloch was the shooter. We disagree, as this statement was not
evidence Kinloch ultimately did shoot Manigault.

The State contends the testimony of Robin Williams and Tyson Singleton that
they saw Petitioner running unarmed from the scene as shots were fired elsewhere
creates an inference that someone other than Petitioner was the shooter. That is
certainly true, but their testimony does not create any inference Kinloch—again, the
only possible accomplice of Petitioner—was the shooter.

The State argues Kinloch admitted to his brother during the jailhouse
telephone conversation that he was "strapped"—armed with a firearm—while at the
club. We disagree with the State's characterization of the conversation. First, there
is nothing in the record defining the term "strapped." Even if the term means
"armed," all we can glean from the record is that Kinloch told his brother Petitioner
was strapped, and then said to his brother, "[y]ou know how we do." There is no
evidence Kinloch told his brother he was armed the night of the shooting.

The State also contends Petitioner's aggressive cross-examination of Kinloch
constituted evidence Kinloch could have been the shooter. The State points to
Petitioner asking Kinloch on cross-examination to admit he—Kinloch—told Grant
and Darlene Washington he was armed with a .357 Magnum and that he told both
of them he shot Manigault. Kinloch denied these assertions. Similarly, Petitioner
asked Kinloch to admit he—Kinloch—had been described "in the streets" as the
shooter. Kinloch denied that assertion as well. While Petitioner very aggressively
cross-examined Kinloch, the fact remains that counsel's questions and accusations
were not evidence. Kinloch's refusal to admit to the statements and conduct
attributed to him does not constitute evidence upon which the jury could rely to
determine Kinloch was armed or that he was the shooter. Otherwise, the jury would
be allowed to engage in speculation.

The State contends our reasoning in Barber v. State, 393 S.C. 232, 712 S.E.2d
436 (2011), supports its position that an accomplice liability instruction was proper
in this case. We disagree. In Barber, the State presented evidence that Barber and
three accomplices (Kimbrell, Walker, and Kiser) conspired to rob a drug dealer. The
three accomplices testified Kimbrell remained outside the dealer's house while
Barber, Kiser, and Walker went inside to do the deed. The accomplices testified
Barber was armed with a .380 handgun, Kiser was armed with a rifle, and Walker
was unarmed. The State also presented testimony that Kiser was the shortest of the
three men who entered the dwelling. One of the robbers shot and killed the dealer
and shot and wounded another man. Expert testimony established the shots fired
inside the dwelling were from a .380 handgun. Two eyewitnesses inside the
dwelling testified they could not identify the three intruders because the intruders'
faces were covered. However, Barber elicited testimony that the shortest intruder
(inferably Kiser) was armed with a rifle and that both of the other two intruders were
armed with .380 handguns. Id. at 237, 712 S.E.2d at 439. This testimony placed a
.380 handgun in Walker's hands, thus supporting the conclusion that either Walker
or Barber was the shooter.

In Barber, we noted the propriety of an accomplice liability charge depended
upon "whether there is any evidence that another co-conspirator was the shooter and
Barber was acting with him when the robbery took place." Id. We held an
accomplice liability instruction was warranted because "the sum of the evidence
presented at trial, both by the State and defense, was equivocal as to who was the
shooter." Id. at 236, 712 S.E.2d at 439.

On the record before us, Kinloch was the only person who could have been
Petitioner's accomplice. There was evidence Kinloch and Petitioner acted in concert
in following Manigault around the club and giving him dirty looks, there was
evidence Petitioner and Kinloch (and others) fought with Manigault and Jenkins,
and there was evidence Petitioner shot Manigault. However, for an accomplice
liability instruction to have been warranted, there must be some evidence in the
record that Kinloch shot Manigault. In Barber, there was evidence Barber shot the
victims, and there was evidence Barber's accomplice, Walker, shot the victims.
Here, there was no evidence Kinloch was armed with a firearm, and there was no
evidence Kinloch shot Manigault. Kinloch was aggressively questioned as to
whether he was armed and whether he shot Manigault. He denied both assertions.
Was Kinloch telling the truth? Perhaps not. However, as we observed in Barber,
an alternate theory of liability may not be charged to a jury "merely on the theory
the jury may believe some of the evidence and disbelieve other evidence." 393 S.C.
at 236, 712 S.E.2d at 438.

Wilds v. State, 407 S.C. 432, 440, 756 S.E.2d 387, 391 (Ct. App. 2014),
supports Petitioner's contention that an accomplice liability instruction was not
proper. In Wilds, evidence was presented that Wilds and two confederates were
walking down a street when Wilds spotted the victim and told his confederates he
was going to rob the victim. The two confederates testified Wilds stopped to talk to
the victim while they kept walking. They testified Wilds pulled a gun on the victim
and demanded his wallet. Wilds then ordered his two confederates to beat the victim.
They proceeded to do so, and Wilds shot the victim in the chest. Id. at 435-36, 756
S.E.2d at 388-89. In holding an accomplice liability instruction was improper, the
court of appeals noted there was no evidence presented that anyone other than Wilds
was the shooter and that his two confederates did not join in the robbery until after
Wilds pulled a gun on the victim. Id. at 439-40, 756 S.E.2d at 390-91. The court of
appeals observed, "Although the jury may have had doubts about [the two
confederates'] testimony, an alternate theory of liability, such as accomplice liability,
'may not be charged merely on the theory the jury may believe some of the evidence
and disbelieve other evidence.'" Id. at 439, 756 S.E.2d at 390 (quoting Barber, 393
S.C. at 236, 712 S.E.2d at 438).
 Here, as in Wilds, the jury certainly may have doubted Kinloch's testimony
that he did not shoot Manigault. However, since Kinloch was the only possible
accomplice of Petitioner whose actions could result in criminal liability for
Petitioner, there must be some evidence Kinloch shot Manigault. There was none.

The State also maintains the accomplice liability instruction was a proper
"remedial instruction" in response to Petitioner's efforts to introduce inadmissible
hearsay evidence from Grant that Kinloch told him he shot Manigault. There is no
authority for the proposition that a "remedial" jury instruction may be given just in
case a jury might consider evidence it has been specifically instructed by the trial
court to disregard. Each time Grant testified Kinloch told Grant he shot Manigault,
the trial court sustained the State's objection, ordered the testimony stricken, and
instructed the jury to disregard it. Subsequently, the trial court began its instructions
to the jury with this admonition:

You are to consider only the evidence before you. If there
was any testimony ordered stricken from the record, you
must disregard that testimony. Mr. Foreperson, as I
instructed you, you are not to allow any testimony that was
stricken from the record to even be discussed in
deliberations.

In a slightly different context, we have held that "[i]f the trial judge sustains a
timely objection to testimony and gives the jury a curative instruction to disregard
the testimony, the error is deemed to be cured." State v. George, 323 S.C. 496, 510,
476 S.E.2d 903, 911-12 (1996). Similarly, we have observed, "[a]n instruction to
disregard incompetent evidence is usually deemed to have cured the error.
Moreover, jurors are presumed to follow the law as instructed to them." State v.
Grovenstein, 335 S.C. 347, 353, 517 S.E.2d 216, 219 (1999) (internal citations
omitted). In this case, the jury was presumed to have followed the trial court's
instruction to disregard Grant's testimony. We therefore reject the State's argument
that the accomplice liability instruction was a proper "remedial instruction."

We also hold the trial court's accomplice liability instruction prejudiced
Petitioner. The evidence that Petitioner shot Manigault was not overwhelming, as
several witnesses testified Petitioner was not armed and was not in the immediate
area where the shooting occurred. The insertion of the accomplice liability charge
into the case invited the jury to speculate whether Kinloch—the only possible
accomplice of Petitioner—shot Manigault, when there was no evidence Kinloch was
the shooter.6

C. Remaining Issues
The court of appeals affirmed the trial court's refusal to give a self-defense
instruction. Washington, 424 S.C. at 410-15, 818 S.E.2d at 478-81. We affirm the
court of appeals. Of course, if the evidentiary landscape changes during re-trial, the
trial court shall follow the settled principle that "[t]he law to be charged to the jury
is determined by the evidence presented at trial." State v. Gaines, 380 S.C. 23, 31,
667 S.E.2d 728, 732 (2008).

The court of appeals affirmed the trial court's exclusion of Dr. Presnell's
testimony regarding Manigault's blood alcohol level. Washington, 424 S.C. at 404-
07, 818 S.E.2d at 474-76. Based upon the record before us, we affirm the court of
appeals on this issue. However, on remand, the trial court shall consider the evidence
as presented at that time and shall rule accordingly.

The court of appeals also affirmed the trial court's exclusion of the testimony
of Kevin Watson. Id. at 407-10, 818 S.E.2d at 476-78. We find no error in the trial
court's ruling and therefore affirm the court of appeals on this issue.

III. Conclusion
For the foregoing reasons, we reverse Petitioner's conviction for voluntary
manslaughter and remand for a new trial on that charge.

6
Our determination of prejudice does not turn upon the fact that the jury asked two
questions about accomplice liability. However, the questions merit mention. In its
first question, the jury asked the trial court for clarification of the law of reasonable
doubt, accomplice liability, and voluntary manslaughter. The record does not reflect
the trial court's response, if any. In its second question, the jury asked the trial court
if it could apply the theory of accomplice liability to parties acting in concert with
Manigault, the victim. The trial court advised the jury it had been fully instructed
on the law. The second question indicates the jury did not fully understand the
accomplice liability theory, which has no application to those acting in concert with
a victim.
AFFIRMED IN PART, VACATED IN PART, REVERSED IN PART, AND
REMANDED.

BEATTY, C.J., KITTREDGE, HEARN, JJ., and Acting Justice D. Garrison
Hill, concur.