dissenting:
I respectfully dissent. The postconviction relief judge found respondent received ineffective assistance from his trial counsel. Our scope of review is limited to whether there is any evidence of probative value in the record to support this finding. *458Solomon v. State, — S.C. — 443 S.E. (2d) 540 (S.C. Sup. Ct. 1994). Finding such evidence, I would affirm.
Respondent’s jury was charged on both possession with intent to distribute drugs and the lesser offenses of simple possession. The PCR judge found trial counsel ineffective for failing to request a charge that any doubt whether respondent was guilty of the greater or the lesser offense should be resolved in favor of the lesser, a charge commonly referred to as a “King charge.” See State v. King, 158 S.C. 251, 155 S.E. 409 (1930). The majority would reverse, holding respondent was not entitled to the charges on the lesser offenses, and further, that since King had not been extended to crimes other than homicide at the time of respondent’s trial, counsel was not ineffective for failing to request a charge. I disagree with both holdings.
First, it is simply inaccurate to maintain that the King principal was limited to homicide cases before 1990. See, e.g., State v. Anderson, 230 S.C. 191, 95 S.E. (2d) 164 (1956) (principal applicable in a possession of illegal liquor case); State v. Starnes, 213 S.C. 304, 49 S.E. (2d) 209 (1948) (principal applicable to issue whether defendant proved an affirmative defense); State v. Tedder, 83 S.C. 437, 65 S.E. 449 (1909) (jury instructed to resolve any disputed fact in favor of defendant). Further, a reading of State v. King itself shows that the principal involved is not one related to the crime charged but rather to the concept of reasonable doubt itself. Counsel’s performance in failing to request a King charge was unreasonable.
The more difficult question is whether respondent was prejudiced by counsel’s failure to request a King charge. The majority holds respondent was not entitled to the charge because he possessed sufficient quantities of drugs to trigger the statutory inference of possession with intent to distribute. This type of reasoning is erroneous in that it converts a permissible inference into an impermissible presumption. See, e.g., State v. Neva, 300 S.C. 450, 388 S.E. (2d) 791 (1990) (“evidentiary presumptions must be charged as permissive inferences with specific instructions that the jury may accept or reject them”). The majority also errs in holding respondent was not entitled to the lesser charges because he denied committing the crime. In determining whether a lesser offense *459should be charged, the trial judge is concerned only with whether there is evidence in the record from which the jury could find the defendant committed the lesser offense. Casey v. State, 305 S.C. 445, 409 S.E. (2d) 391 (1991). This test does not require the defendant admit the lesser charge in order for the jury to consider it. Cf., Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed. (2d) 54 (1988) (even if defendant denies one or more elements of the crime, he is entitled to a charge on the defense of entrapment if warranted by other evidence); State v. Key, 282 S.C. 413, 319 S.E. (2d) 338 (1984) (reversible error to charge defendant must personally rebut or explain possession of more than statutory intent to distribute amount in order to be acquitted of possession with intent to distribute). While the evidence of the lessor offenses here is admittedly slim, our scope of review is limited to “any evidence.” Both the trial judge in determining to give the charges, and the PCB, judge in finding prejudice from the failure to charge the King principle, found the existence of evidence entitling respondent to the lesser charges. My review of the record convinces me there is evidence to support these decisions, and therefore I would affirm the grant of postconviction relief to respondent.