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2004-UP-425 - State v. Dalrymple

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Alan J. Dalrymple,        Appellant.


Appeal From Florence County
James E. Brogdon, Jr., Circuit Court Judge


Unpublished Opinion No. 2004-UP-425
Submitted June 8, 2004 – Filed June 30, 2004


AFFIRMED


Henry Morris Anderson, Jr., of Florence, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Assistant Attorney General Deborah R.J. Shupe, all of Columbia; and Solicitor Edgar Lewis Clements, III, of Florence, for Respondent.

PER CURIAM:  Alan J. Dalrymple was convicted of assault and battery with intent to kill (ABIK) and possession of a knife during the commission of a violent crime.  He appeals, arguing the trial court erred in refusing to charge defense of others to the jury and failing to direct a verdict on the ABIK charge.  We affirm [1] pursuant to Rule 220(b)(2), SCACR and the following authorities.  As to Issue I:  State v. Crosby, 355 S.C. 47, 51, 584 S.E.2d 110, 112 (2003) (“The law to be charged must be determined from the evidence presented at trial.”); State v. Starnes, 340 S.C. 312, 322-23, 531 S.E.2d 907, 913 (2000) (“Under the theory of defense of others, one is not guilty of taking the life of an assailant who assaults a friend, relative, or bystander if that friend, relative, or bystander would likewise have the right to take the life of the assailant in self-defense.”); State v. Day, 341 S.C. 410, 416, 535 S.E.2d 431, 434 (2000) (holding self-defense is established where the evidence shows the defendant (1) the defendant was without fault in bringing on the difficulty, (2) the defendant was in imminent danger of losing his life or sustaining serious bodily injury or reasonably believed he was in such danger, that (3) if based on a belief of imminent danger, an ordinary reasonable person in his the defendant’s position would strike the fatal blow, and (43) the defendant had no means of avoiding the danger).  As to Issue II:  State v. Lindsey, 355 S.C. 15, 20, 583 S.E.2d 740, 742 (2003) (holding on appeal from the denial of a directed verdict the court must view the evidence in the light most favorable to the State); State v. McKnight, 352 S.C. 635, 642, 576 S.E.2d 168, 172 (2003) (“If there is any direct evidence or substantial circumstantial evidence reasonably tending to prove the guilt of the accused, we must find the case was properly submitted to the jury.”), cert. denied, 124 S. Ct. 101 (2003); Hill v. State, 350 S.C. 465, 472, 567 S.E.2d 847, 851 (2002) (“ABIK is an unlawful act of a violent nature to the person of another with malice aforethought, either express or implied.”); State v. Wilds, 355 S.C. 2697, 276, 584 S.E.2d 138, 141-42 (Ct. App. 2003) (defining malice as the wrongful intent to injure another indicating a depraved spirit intent on doing wrong); State v. Ballington, 346 S.C. 262, 272, 551 S.E.2d 280, 285 (Ct. App. 2001) (holding malice may be implied by use of a deadly weapon).

AFFIRMED. 

HEARN, C.J., STILWELL, J., and CURETON, A.J., concur.


[1]        We decide this case without oral argument pursuant to Rule 215, SCACR.