State v. Geter

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Robert Xavier Geter, Appellant.

Appellate Case No. 2018-001647

Appeal From Richland County
DeAndrea G. Benjamin, Circuit Court Judge

Opinion No. 5851
Heard June 7, 2021 – Filed August 18, 2021

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Deputy Attorney General Melody Jane Brown, Assistant
Attorney General Tommy Evans, Jr., and Solicitor Byron
E. Gipson, all of Columbia, for Respondent.

KONDUROS, J.: In this criminal case, Robert Xavier Geter appeals his
convictions for the murder of James Lewis (Decedent) and the attempted murder of
Clarence Stone. The events in the case stem from a bar fight between Geter and
Decedent. Geter maintains the circuit court erred in charging the jury on
transferred intent in relation to the attempted murder charge and in allowing certain
testimony from Investigator Joseph Clarke. We affirm in part, reverse in part, and
remand.

FACTS/PROCEDURAL BACKGROUND

On the night of March 7, 2015, Stone was at a pool room/restaurant, Culler's Pool
Hall, located on Monticello Road in Richland County. Stone acted as something of
a bouncer for the business, watching out for arguments or other types of trouble or
disturbances. According to Stone, he was playing a game of pool when he heard a
commotion and went to investigate. He found Decedent and Geter on the floor
fighting. Stone broke up the fight and took Decedent outside on a deck behind the
building. Decedent wanted to go back inside to get his chain, and Stone indicated
he would retrieve it for him. As Stone was preparing to go back inside, Geter
came out onto the deck, approaching Decedent and asking "we good?" Then,
Geter swung at Decedent and Stone was caught in between the two while
attempting to break up the altercation. Geter had a knife and stabbed and killed
Decedent. Geter also struck Stone, stabbing him in the eye, causing permanent
blindness in that eye.

Geter was indicted on one count of murder and one count of attempted murder. At
trial, in opening statements, Geter's attorney indicated Geter had acted in self-
defense after several men, including Decedent and Stone, had attacked and beaten
him.

Investigator Joseph Clarke, of the Richland County Sheriff's Office, testified after
Stone in the State's case and indicated he was the on-call homicide investigator on
the night of the stabbing. He testified as follows regarding his investigation of the
incident.

[STATE]: And you were here in opening statements, correct?

[CLARKE]: Yes.

[STATE]: Is that the first time you heard that story?

[CLARKE]: No. Oh, that story?

[STATE]: Yes, the story that he gave about – in opening
statements?
[GETER]: Your Honor. I object. Openings are not evidence,
so.

THE COURT: Overruled.

[STATE]: His scenario of the facts that Mr. Geter's attorney
is now saying happened, is that the first time you have ever
heard that?

[CLARKE]: Yes.

...

[STATE]: You confirmed that Clarence Stone was also a
victim?

[CLARKE]: I did.

[STATE]: And you spoke with him as well?

[CLARKE]: I did. I took a statement at his home.

[STATE]: And he gave a statement of what occurred?

[CLARKE]: He did.

[STATE]: You saw him testify again today?

[CLARKE]: I did.

[STATE]: And was that exactly what he told you?

[GETER]: Objection. Your Honor. Improper vouching.

THE COURT: Overruled. You are asking about the testimony
that he gave?

[STATE]: Yes. We watched him just a few minutes ago.

THE COURT: Overruled.
 [STATE]: The same thing he told this jury happened to
him is what he told you?

[CLARKE]: Seems absolutely consistent. Correct.

At the close of the State's case, Geter moved for a directed verdict arguing the
State had offered no evidence Geter specifically intended to kill Stone as required
by the attempted murder statute. The State contended the necessary intent to
establish the attempted murder charge could be transferred based on Geter's intent
to kill Decedent. The circuit court agreed and denied the directed verdict motion.

Geter testified in his own defense and indicated he had accidentally stepped on
Decedent's foot and when confronted by Decedent, he apologized. While doing so,
Stone came over and interfered in their conversation by hitting Geter in the back of
the head. Then, according to Geter, Stone and Decedent were beating him pretty
severely and he believed several other men were also attacking him. To defend
himself, he pulled out his knife and while brandishing it, Decedent and Stone were
injured.

At the close of all testimony, Geter renewed his motion for directed verdict which
the circuit court denied. Geter objected to the circuit court charging on the
doctrine of transferred intent. The circuit court denied the objection and charged
the jury as follows:

Ladies and gentlemen, we'll next talk about the doctrine
of transferred intent. If the [d]efendant with malice
aforethought attempts to kill another person, but by
mistake injures or kills a different person, the law
considers that the [d]efendant still had the intent to kill.
Intent to kill is a mental state. It exists in the mind. So,
if the State proves that a [d]efendant acting with malice
had the intent to kill one person, but mistakenly injured
another, the intent to kill is merely transferred from the
original person the [d]efendant attempted to kill to the
actual person injured.

Pursuant to the transfer[red] intent doctrine, if one person
intends to harm a second person but instead
unintentionally harms a third, the first person's criminal
intent toward the second applies to the third as well.
The circuit court also charged the jury on self-defense. Geter was convicted of
murder and attempted murder and sentenced to forty years' imprisonment and
twenty years' imprisonment, respectively, to run concurrently. This appeal
followed.

STANDARD OF REVIEW

"An appellate court will not reverse the trial judge's decision regarding
a jury charge absent an abuse of discretion." State v. Mattison, 388 S.C. 469, 479,
697 S.E.2d 578, 584 (2010). "An abuse of discretion occurs when the trial court's
ruling is based on an error of law or, when grounded in factual conclusions, is
without evidentiary support." State v. Jennings, 394 S.C. 473, 477-78, 716 S.E.2d
91, 93 (2011) (quoting Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539
(2000)). Likewise, the admission or exclusion of evidence is subject to the
discretion of the circuit court. State v. Kromah, 401 S.C. 340, 349, 737 S.E.2d
490, 494-95 (2013). Additionally, any abuse of discretion related thereto is subject
to a harmless error analysis. Id. at 362, 737 S.E.2d at 501.

LAW/ANALYSIS

I. Transferred Intent and Attempted Murder

Geter argues the circuit court erred in charging the jury on the doctrine of
transferred intent to support the attempted murder charge. We agree.

The South Carolina Court of Appeals has twice-answered the first question
presented in this appeal—whether the doctrine of transferred intent applies to
attempted murder which requires specific intent.1 In State v. Williams, 422 S.C.
525, 539, 812 S.E.2d 917, 924 (Ct. App. 2018), aff'd in part as modified, vacated in
part, 427 S.C. 148, 829 S.E.2d 702 (2019), the court concluded "the doctrine of
transferred intent is proper to convict a defendant of attempted murder regardless
of whether a victim, intended or unintended, suffers an injury." In that case,
Williams had fired shots into a trailer in which his intended target and two other
people were located. Id. This court found:

1
"A person who, with intent to kill, attempts to kill another person with malice
aforethought, either expressed or implied, commits the offense of attempted
murder." S.C. Code Ann. § 16-3-29 (2015).
 Williams misconstrues the attempted murder statute to
the extent he argues the statute requires the specific intent
to murder specific victims. Williams specifically argues
the transferred intent charge erroneously allowed the jury
to find Williams guilty of attempted murder of Ycedra
and Wrighton without requiring the State to prove (1)
Williams knew they were in the [r]esidence and (2)
Williams specifically intended to kill Ycedra and
Wrighton [unintended targets], in addition to Young. We
disagree.

Id.

However, the Supreme Court of South Carolina, based on preservation grounds,
vacated the portion of Williams that decided the transferred intent question. State v.
Williams, 427 S.C. 148, 150, 829 S.E.2d 702, 703 (2019). Because the defendant
had not appealed the erroneous jury charge indicating attempted murder was a
general intent crime, the court declined to weigh in. Id. "Because the court
of appeals treated the case as if it had been tried as a specific-intent crime, we
vacate the portion of its opinion dealing with the issue of transferred intent and
leave for another day the determination of whether the doctrine applies to
attempted murder." Id. at 157-58, 829 S.E.2d at 707. In spite of declining to
address the merits of the issue, the court offered more insight in a footnote to the
opinion.

[W]e find the doctrine of transferred intent unnecessary
to sustain the convictions for the attempted murders of
Young and Wrighton. Petitioner was alleged to have
specifically intended to kill Young the night of the
shooting, and to have shot at the door where Wrighton
stood, intending to kill the figure in the doorway. It
matters not that Petitioner may have been unaware it was
Wrighton in the door, rather than Young. Simply put,
Petitioner intended to shoot the person (Wrighton) who
appeared in the doorway. As a result, we alternatively
sustain Petitioner's convictions for the attempted murders
of Young and Wrighton without resort to the doctrine of
transferred intent. Because Petitioner was sentenced to
three concurrent twenty-year sentences, reversing his
 conviction for the attempted murder of [Ycedra2] would
have no effect on the length of Petitioner's term of
imprisonment, and we decline to do so, particularly given
that the case was tried as if attempted murder was a
general-intent crime.

Id. at 158 n.9, 829 S.E.2d at 707 n.9.

In State v. Smith, 425 S.C. 20, 32, 819 S.E.2d 187, 193 (Ct. App. 2018), rev'd and
remanded, 430 S.C. 226, 845 S.E.2d 495 (2020), the court of appeals was again
presented with the opportunity to consider the doctrine of transferred intent and
attempted murder. The court concluded the doctrine of transferred intent could
provide the specific intent to support the charge. Id. at 32, 819 S.E.2d at 193. It
stated "[t]he foregoing evidence shows Appellant's unjustified, specific intent to
kill at least one of the three men he encountered. Further, the State showed specific
intent as to Victim [not one of the three men] through the doctrine of transferred
intent." Id. As it had done in Williams, the supreme court declined to adopt the
court of appeals' position on the issue. The supreme court stated:

Smith also contends the court of appeals erred in finding
the doctrine of transferred intent applied to attempted
murder because it is a specific-intent crime. In particular,
Smith argues the requisite specific intent necessary to
support an attempted murder conviction must be the
specific intent to kill a specific person. Smith points out
the "State elected to prosecute [him] for the attempted
murder of [the victim] instead of the attempted murder of
[the men in the rival group]," and he "was not tried (nor
has ever been tried) for any crime related to [the rival
group]." We need not address this issue because the
prior issues are dispositive. Nonetheless, we note the
State indicated that—were the [c]ourt to reverse Smith's
convictions—it intended to charge Smith with three
counts of attempted murder for shooting at the rival
group, and one count of assault and battery of a high and
aggravated nature (ABHAN) for shooting the victim.
ABHAN is a general-intent crime, and, thus, there would

2
We refer to the third person in the trailer, Ycedra Williams, as Ycedra to avoid
confusion with the defendant.
 be no question on remand as to the applicability of the
doctrine of transferred intent.

Id. at 234, 845 S.E.2d at 499 (emphasis added)(citation omitted).

Jurisdictions are split over whether transferred intent can be applied in attempted
murder cases. In jurisdictions finding transferred intent applies in attempted
murder cases, the rationale is largely based in public policy and reflects the logical
extension of the of transferred intent doctrine in murder cases. In other words, if
transferred intent applies to convict a killer of an unintended murder, why should a
bad actor have lesser consequences simply because the unintended victim did not
die? See e.g. People v. Ephraim, 753 N.E.2d 486, 496 (Ill. App. Ct. 2001) ("It is
well established that in Illinois, the doctrine of transferred intent is applicable
to attempted murder cases where an unintended victim is injured."); State v.
Gilman, 69 Me. 163, 171 (1879) (applying transferred intent to ensure defendants
are punished for their actions not the results); Ochoa v. State, 981 P.2d 1201, 1205
(Nev. 1999) (finding no reason not to apply transferred intent in case where
intended victim died and unintended victim was wounded because although
charges differed the intent was the same); State v. Ross, 115 So. 3d 616, 621 (La.
App. 2013) ("Applying the doctrine of transferred intent to the facts of this case,
Mr. Ross's specific intent to shoot Ms. Cloud was transferred when he accidentally
also shot Ms. Peters and Mr. Newman" and the extent of their injuries was
inconsequential); State v. Fennell, 340 S.C. 266, 276, 531 S.E.2d 512, 517 (2000)
("A person who, acting with malice, unleashes a deadly force in an attempt to kill
or injure an intended victim should anticipate that the law will require him to
answer fully for his deeds when that force kills or injures an unintended victim.").3

3
In Fennell, 340 S.C. 266 at 277, 531 S.E.2d at 518, the court found transferred
intent applied to a charge of assault and battery with intent to kill (ABWIK). ("We
hold that the doctrine of transferred intent may be used to convict a defendant of
AB[W]IK when the defendant kills the intended victim and also injures an
unintended victim."). However, ABWIK was a general intent crime. See State v.
Foust, 325 S.C. 12, 14-15, 479 S.E.2d 50, 51 (1996) ("As this [c]ourt has
recognized that a specific intent is not required to commit murder, the logical
inference is that, likewise, a specific intent is not required to commit AB[W]IK.").
Therefore, the analysis in Fennell cannot be considered determinative of this issue
as the court has specified attempted murder is not the codification of ABWIK and
does require specific intent. State v. King, 422 S.C. 47, 63-64, 810 S.E.2d 18, 26-
27 (2017) ("Considering the legislative history as a whole, we conclude that
section 16-3-29 is not a codification of the offense of ABWIK. We find the
On the other hand, some jurisdictions require a specific, intended victim to support
an attempted murder charge. Those jurisdictions generally maintain that a person
cannot be guilty of "attempting" to do an act he did not intend to do [injuring B
while attempting to kill A] and public policy did not require extending the doctrine
to punish or deter bad actors. See Cockrell v. State, 890 So. 2d 174, 181 (Ala.
2004) ("Applying the foregoing rules of construction, we conclude that the statute
defining 'attempt' does not clearly evince a legislative intent to apply the doctrine
of transferred intent—applicable only to the completed crime of murder—to
punish as attempted murder the consequences of an unintended, nonfatal result.");
Ramsey v. State, 56 P.3d 675, 681 (Alaska Ct. App. 2002) (finding the jury would
have to conclude the defendant intended to kill the injured victim to convict her of
attempted murder and could not rely upon transferred intent); People v. Falaniko,
205 Cal. Rptr. 3d 623, 631 (2016) ("[B]ecause '[t]he crime of attempt sanctions
what the person intended to do but did not accomplish, not unintended and
unaccomplished potential consequences,' the shooter who fails to kill the
unintended victim cannot be convicted of attempted murder under a theory of
transferred intent." (quoting People v. Bland, 48 P.3d 1107 (Cal. 2002)); State v.
Hinton, 630 A.2d 593, 602 (Conn. 1993) ("[T]he rule of lenity leads us to conclude
that the transferred intent doctrine should not be applied to the crime of attempted
murder."); State v. Brady, 903 A.2d 870, 882-83 (Md. 2006) (finding "if a
defendant intends to kill a specific victim and instead wounds an unintended victim
without killing either, the defendant can be convicted only of the attempted murder
of the intended victim and transferred intent does not apply");.

After considering South Carolina jurisprudence, as well as that from other
jurisdictions, we conclude the circuit court erred in charging transferred intent as to
the attempted murder charge.4 To support that charge, the State must demonstrate

General Assembly expressly repealed the offense of ABWIK and purposefully
created the new offense of attempted murder, which includes a 'specific
intent to kill' as an element.").
4
We recognize this court has essentially drawn the same conclusion in the recent
case of State v. James Caleb Williams, Op. No. 5835 (S.C. Ct. App. filed July 14,
2021) (Shearouse Adv. Sh. No. 24 at 21). However, certain facts in the two cases
are distinguishable. Because Williams was acquitted of attempting to murder his
"target," the majority in Williams concluded no intent existed that could be
transferred to the unintended recipient of Williams's bullet. In the case sub judice,
Geter was convicted of Decedent's murder. Therefore, because disposition of this
case is wholly dependent on finding the transferred intent charge never applies to
Geter attempted to kill Stone, and that was not the State's theory of the case. So
long as attempted murder is a specific intent crime, transferring the intent to kill
does not satisfy the necessary mens rea to convict a defendant of the attempted
murder of an unintended victim. Furthermore, from a public policy standpoint, the
supreme court has strongly suggested in both Williams and Smith that the lesser
offense of ABHAN in cases such as this would serve as an appropriate punishment
for the accused.

Based on all of the foregoing, we conclude the circuit court erred in charging
transferred intent in this case, and we reverse Geter's conviction for attempted
murder.

II. Testimony of Investigator Clarke

Geter contends the circuit court erred in allowing Investigator Clarke to testify that
Geter's opening statement to the jury was the first time he had heard the defense's
"scenario of the facts" and that Stone's pretrial statement and testimony were
"consistent." We agree in part.

The objection to Investigator Clarke's statement that he first heard Geter's scenario
of the facts during opening statements is not preserved for our review. Geter did
not object to the question on the ground of bolstering but only noted opening
statements are not evidence. Consequently, the point is not preserved. See State v.
Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) ("A party need not use the
exact name of a legal doctrine in order to preserve it, but it must be clear that the
argument has been presented on that ground. A party may not argue one ground at
trial and an alternate ground on appeal.").

The second statement—that Stone's prior statement to Investigator Clarke was
consistent with his trial testimony—is troubling. In State v. Chappel, 429 S.C.
468, 837 S.E.2d 496 (2000), our supreme court outlined the elements to be
examined when determining whether a witness is improperly bolstering another
witness's testimony. This court decided the testimony of a witness is improper
bolstering if:

sustain an attempted murder charge, we conduct a full analysis rather than
exclusively relying on Williams, even though much of the analysis follows the
same rationale.
 (1) the witness directly states an opinion about the [other
witness]'s credibility; (2) the sole purpose of the
testimony is to convey the witness's opinion about the
[other witness]'s credibility; or (3) there is no way to
interpret the testimony other than to mean the witness
believes the [other witness] is telling the truth.

Id. at 77, 837 S.E.2d at 501.

"Improper vouching occurs when the prosecution places the government's prestige
behind a witness by making explicit personal assurances of a witness's veracity[] or
where a prosecutor implicitly vouches for a witness's veracity by indicating
information not presented to the jury supports the testimony." State v. Shuler, 344
S.C. 604, 630, 545 S.E.2d 805, 818 (2001).

Investigator Clarke did not directly comment on the veracity of Stone's testimony.
By definition, consistent does not necessarily mean truthful, but it does mean "free
from variation or contradiction,"5 thus creating the impression of accuracy and
truthfulness. The question serves no other purpose than to bolster Stone's trial
testimony and puts an improper imprimatur on Stone's testimony as truthful.
Notably, Stone's prior statement would not have been admissible to prove it was
consistent with this trial testimony unless Geter had suggested Stone's trial
testimony was a recent fabrication.6 Therefore, it was inappropriate for

5
See Merriam-Webster.com/dictionary/consistent (defining consistent as "marked
by harmony, regularity, or steady continuity; free from variation or
contradiction").
6
To admit a prior consistent statement at trial:

(1) the declarant must testify and be subject to cross-
examination,
(2) the opposing party must have explicitly or implicitly
accused the declarant of recently fabricating
the statement or of acting under an improper influence or
motive,
(3) the statement must be consistent with the declarant's
testimony, and
(4) the statement must have been made prior to the
alleged fabrication, or prior to the existence of the
alleged improper influence or motive.
Investigator Clarke to opine as to the consistency of Stone's testimony with his
prior statement.

Nevertheless, any error in allowing Investigator Clarke's testimony is subject to a
harmless error analysis. See State v. Reyes, 432 S.C. 394, 405-06, 853 S.E.2d 334,
340 (2020) (conducting a harmless error analysis in an appeal premised on
improper vouching); see also State v. Kelly, 343 S.C. 350, 369-70, 540 S.E.2d 851,
860-61 (2001) (conducting a harmless error analysis after finding a witness had
improperly vouched for another witness and suggested an imprimatur from the
State) rev'd and remanded on other grounds, 534 U.S. 246, (2002). "Whether an
error is harmless depends on the circumstances of the particular case. No definite
rule of law governs this finding; rather, the materiality and prejudicial character of
the error must be determined from its relationship to the entire case. Error is
harmless when it could not reasonably have affected the result of the trial. [O]ur
jurisprudence requires us not to question whether the State proved its case beyond
a reasonable doubt, but whether beyond a reasonable doubt the trial error did not
contribute to the guilty verdict." Reyes, 432 S.C. at 406, 853 S.E.2d at 340
(citations omitted).

In this case, all of the eyewitnesses' testimony was consistent and the forensic
evidence in the case matched a version of events in which Geter was the final
aggressor outside on the deck that evening, acting out of revenge rather than self-
defense. Additionally, the circuit court instructed the jury that it was charged with
determining the credibility of the witnesses in the case. It charged "[n]ecessarily,
you must determine the credibility of witnesses who have testified in this case.
Credibility simply means believability. It becomes your duty as jurors to analyze
and to evaluate the evidence and determine which evidence convinces you of its
truth." This instruction did not nullify Investigator Clarke's improper statement but
mitigated its impact. See id. at 408-09, 853 S.E.2d at 342 (explaining any
bolstering of a minor witness's credibility was cured by, among other things, the
court's instruction that the jury was the sole arbiter of credibility). Accordingly, we
find even though the circuit court erred in allowing Invesitgator Clarke's statement,
the error was harmless.

State v. Saltz, 346 S.C. 114, 121-22, 551 S.E.2d 240, 244 (2001); see id.
(explaining Rule 801(d)(1)(B), SCRE, changed South Carolina's common law to
make a prior consistent statement admissible as substantive evidence).
CONCLUSION

Based on the foregoing, we find the circuit court erred in charging the jury on
transferred intent. This finding mandates the reversal of Geter's conviction for
attempted murder. Additionally, we conclude the circuit court erred in admitting
Investigator Clarke's statement regarding the consistency of Stone's testimony with
his prior statement. However, this error was harmless under the facts of this case.
Nevertheless, we caution the State against eliciting such improper testimony.
Because the reversible error in this case pertains only to Geter's conviction for
attempted murder, his conviction for Decedent's murder is sustained.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

MCDONALD, J., concurs.
GEATHERS, J., concurring in part and dissenting in part: I agree with the
majority that the challenged testimony of Investigator Clarke did not contribute to
the verdict and, therefore, its admission was harmless beyond a reasonable doubt.
However, I respectfully depart from section I of the majority's analysis concerning
the status of our state's jurisprudence as to transferred intent. This court previously
addressed this status in State v. Smith, 425 S.C. 20, 32–34, 819 S.E.2d 187, 193–94
(Ct. App. 2018), rev'd on other grounds, 430 S.C. 226, 845 S.E.2d 495 (2020).
While our supreme court reversed our decision to affirm Smith's attempted murder
conviction on other grounds, there is nothing to indicate that the court rejected our
interpretation of its jurisprudence as to transferred intent. Therefore, I stand by
that interpretation. Accordingly, I would affirm not only Geter's murder conviction
but also his attempted murder conviction.