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2007-UP-502 - State v. Horton

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.

Caniskey Horton, Appellant.


Appeal From York County
 John C. Hayes, III, Circuit Court Judge


Unpublished Opinion No. 2007-UP-502
Submitted October 1, 2007 – Filed October 29, 2007


AFFIRMED


Deputy Chief Attorney for Capital Appeals Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General S. Creighton Waters, of Columbia;  and Solicitor Kevin Scott Brackett, of York, for Respondent.

PER CURIAM:  Caniskey Horton appeals his convictions for murder, assault and battery with intent to kill (ABIK), and possession of a firearm during the commission of a violent crime.[1]  We affirm.[2]

FACTS

In the early morning hours of December 21, 2002, Caniskey Horton fired his gun five times in the parking lot of The Money night club.  He shot and injured Matthew Cousar (Cousar) and shot and killed Jacques Cousar (the deceased). 

Horton and four others (Horton’s group) drove to The Money in Rock Hill, South Carolina.  Horton’s group enjoyed their time at the club without incident and then exited into the parking lot at approximately 3:30 a.m.  Cousar and five others (Cousar’s group) exited The Money at approximately the same time.  The groups noticed that a car had parked very close to a car belonging to a member of Cousar’s group.  A member of Cousar’s group commented on the parked car as Horton’s group passed.

Cousar allegedly yelled as Horton’s group began to drive away.  The driver of the Horton group’s vehicle stopped, rolled down the window, and asked Cousar: “What did you say to me?”  Cousar replied that he was talking about the parked car.  Cousar testified that the Horton group driver then swore at him.  Cousar then stated that none of the people in Horton’s vehicle were soldiers.[3]  Horton exited the vehicle and approached Cousar.  There are conflicting accounts of the events following this point. 

Cousar testified he could see that Horton cocked a gun and placed it in his jacket upon exiting the vehicle.  Horton testified he did not have the gun at that time.  Cousar admitted he then struck Horton in the head with a violent blow that knocked him to the ground.  The force of the blow either dislodged the gun from Horton, or Horton reached into the vehicle for the gun.  Two members of Horton’s group exited the vehicle and helped Horton back to his feet.  One of these two men may have handed Horton his gun. 

It is clear that Horton ultimately fired the gun five times in the direction of Cousar’s group.  Three of the bullets hit the deceased and one hit Cousar.  Immediately following the shooting, Horton and his group exited the parking lot in their vehicle. 

The trial court sentenced Horton to concurrent sentences of thirty-five years for murder, twenty years for ABIK, five years for possession of the firearm, and one year for unlawfully carrying a pistol.  This appeal follows.

STANDARD OF REVIEW

“In criminal cases, the appellate court sits to review errors of law only.”  State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001).  An appellate court will not reverse the trial judge’s decision regarding jury charges absent an abuse of discretion.  Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000).  “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.”  Id.      

LAW/ANALYSIS

Horton contends the trial court erred in its instruction to the jury because it was inconsistent with the facts of the case.[4]  We disagree.

During the pre-charge conference, Horton objected to the State’s requested charge that words alone were not sufficient provocation to justify voluntary manslaughter.  Horton argued that because Cousar initially struck him, an instruction on “words alone” was improper. The trial court charged in part:

The provocation needed for voluntary manslaughter must come from some act of or related to the victim or victims.  Words alone however vulgar or insulting are not enough to be legal provocation.  Where death is caused by the use of a deadly weapon the words must be accompanied by some overt threatening act which could have produced the heat of passion.  The exercise of a legal right no matter how offensive it is to another is never sufficient legal provocation for voluntary manslaughter.

Horton argues this charge does not apply to the facts of this case and merely confused the jury.  Jury instructions must be considered in their entirety and, if in their entirety, they are free from error, then any potentially misleading portions do not constitute reversible error.  State v. Jackson, 297 S.C. 523, 526, 377 S.E.2d 570, 572 (1989).  In its entirety, the jury instruction accurately informed the jury that words alone are insufficient legal provocation to justify voluntary manslaughter.  The instructions also informed the jury that an overt threatening act could have produced the heat of passion necessary to justify voluntary manslaughter.  The jury was aware that Cousar struck Horton prior to the shooting and was free to find this to be the required overt act.  We find no error in the trial court’s charge to the jury.      

CONCLUSION

Based on the foregoing, Horton’s convictions are

AFFIRMED.

STILWELL, SHORT, and WILLIAMS JJ., concur.


[1]  Horton does not appeal his conviction for unlawfully carrying a pistol.

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

[3]  Slang indicating the Horton group was not “tough.” 

[4]  The State argues this issue is not preserved for our review because Horton’s objection was not sufficiently specific.  Horton objected to the jury instruction stating it went further than the facts of the case and that it was uncontradicted that Cousar hit Horton.  We find Horton’s objection sufficient to preserve the issue for appellate review.