          THE STATE OF SOUTH CAROLINA
               In The Supreme Court

   The State, Respondent,

   v.

   Robin Renee Herndon, Petitioner.

   Appellate Case No. 2019-000467



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                Appeal from Aiken County
         DeAndrea G. Benjamin, Circuit Court Judge


                     Opinion No. 27986
         Heard February 12, 2020 – Filed July 1, 2020


              REVERSED AND REMANDED


   Appellate Defender David Alexander, of Columbia, for
   Petitioner.

   Attorney General Alan Wilson and Assistant Attorney
   General William F. Schumacher IV, both of Columbia;
   and Eleventh Circuit Solicitor Samuel R. Hubbard III, of
   Lexington, for Respondent.
JUSTICE KITTREDGE: In 2013, this Court held that in a criminal prosecution
that includes circumstantial evidence:

      [T]rial courts should provide the following language as a
      circumstantial evidence charge, in addition to a proper reasonable
      doubt instruction, when so requested by a defendant:

             There are two types of evidence which are generally
             presented during a trial—direct evidence and
             circumstantial evidence. Direct evidence directly proves
             the existence of a fact and does not require deduction.
             Circumstantial evidence is proof of a chain of facts and
             circumstances indicating the existence of a fact.

             Crimes may be proven by circumstantial evidence. The
             law makes no distinction between the weight or value to
             be given to either direct or circumstantial evidence,
             however, to the extent the State relies on circumstantial
             evidence, . . . the circumstances must be consistent with
             each other, and when taken together, point conclusively
             to the guilt of the accused beyond a reasonable doubt.[1]
             If these circumstances merely portray the defendant's
             behavior as suspicious, the proof has failed.

             The State has the burden of proving the defendant guilty
             beyond a reasonable doubt. This burden rests with the
             State regardless of whether the State relies on direct
             evidence, circumstantial evidence, or some combination
             of the two.

State v. Logan, 405 S.C. 83, 99, 747 S.E.2d 444, 452 (2013).

1
  Originally, this sentence stated that "all of the circumstances must be consistent
with each other," but we hereby modify the Logan charge by deleting the two
italicized words. We make this change because we are concerned the phrase "all of
the circumstances" could be construed to invade the fact-finding role of the jury. It
should be left to the jury—aided by arguments of the lawyers—to determine
whether a conflict between circumstances is sufficiently significant to give rise to
reasonable doubt.
Following the Logan decision, Petitioner Robin Herndon, who was then a law
enforcement officer, shot and killed her live-in boyfriend, Christopher Rowley (the
victim), allegedly in self-defense. Petitioner was tried for murder; the case against
Petitioner was largely circumstantial. Petitioner requested the Logan
circumstantial evidence charge, but the trial court refused, opting instead for the
pre-Logan circumstantial evidence charge.

Petitioner was convicted of voluntary manslaughter. On appeal, there has been no
contention that the trial court properly refused to give the Logan charge. Instead,
the State contends the erroneous failure to give the Logan charge was harmless, for
the jury instructions as a whole were substantially correct. The court of appeals
summarily accepted the State's argument and affirmed. State v. Herndon, Op. No.
2018-UP-458 (S.C. Ct. App. filed Dec. 12, 2018). We granted Petitioner's petition
for a writ of certiorari to review the court of appeals' decision. We now reverse and
remand for a new trial.

                                             I.

The victim was prone to severe mood swings, aggression, and uncontrolled anger,
and he admitted to his physician that he physically abused Petitioner.2 He was
diagnosed with bipolar disorder and placed on medication.

On the day of the incident, the victim was not taking his medication and was
behaving in an aggressive manner, which led to an argument between Petitioner
and the victim. Several neighbors witnessed the beginning of the argument, when
the victim confronted Petitioner in their front yard. The argument moved inside
the residence out of view of the neighbors. According to Petitioner, after they
retreated into the residence, the victim repeatedly punched her, and she drew her
service weapon and warned the victim to leave. Petitioner testified the victim then
charged at her, swatting at the gun. The gun discharged,3 striking and killing the

2
  The record contains compelling evidence of the victim's physical abuse of
Petitioner aside from his own admission. As a law enforcement officer, Petitioner
worked in the domestic violence unit, dealing extensively with battered women.
According to her testimony at trial, her work history caused her to become deeply
ashamed when she became a domestic violence victim herself. As a result, despite
the contemporaneous physical evidence of abuse that was apparent to others,
Petitioner refused to confirm she was in an abusive relationship until after the
victim's death.
3
    Petitioner's theory of the case was that she acted in self-defense, or, in the
victim.

An autopsy of the victim did not definitively determine how the fatal injury
occurred. The pathologist concluded the trajectory of the bullet was equally
consistent with at least two scenarios: (1) Petitioner shooting the victim as he
walked up the steps of the house, or (2) the victim charging toward Petitioner when
he was shot. The State elected to charge Petitioner with murder based on the first
possible scenario.

At trial, the State theorized Petitioner had fabricated the victim's chronic physical
abuse toward her, placing emphasis on Petitioner's failure to report the abuse prior
to the shooting and her habit of hiding any contemporaneous injuries. As a result,
the State argued Petitioner was not entitled to an acquittal. Nevertheless, the trial
court charged the jury on both self-defense and accident.

As noted, because the State's case was circumstantial, Petitioner specifically
requested the charge set forth in Logan. The trial court denied the request, stating
"I'll go with the charge that's in the desk book. It seems very similar, so I will not
charge [the Logan charge]." After the jury returned its verdict, the trial court
sentenced Petitioner to nineteen years' imprisonment for manslaughter.4

                                           II.
When requested, the Logan charge must be given in cases based in whole or part
on circumstantial evidence. See Logan, 405 S.C. at 99, 747 S.E.2d at 452.
Notwithstanding the mandatory language in Logan, erroneous jury instructions
remain subject to an appellate court's authority to "consider[] the trial court's jury
charge as a whole and in light of the evidence and issues presented at trial." Id. at
90, 747 S.E.2d at 448. "To warrant reversal, a trial [court's] refusal to give a
requested jury charge must be both erroneous and prejudicial . . . ." State v.
Brandt, 393 S.C. 526, 550, 713 S.E.2d 591, 603 (2011) (citation omitted).
"However, if the trial [court] refuses to give a specific charge, there is no error if

alternative, the gun fired by accident after the victim hit it.
4
  It is significant to note that—despite the State denigrating Petitioner's claims of
physical abuse at the hands of the victim—the trial court found by a preponderance
of the evidence that Petitioner was eligible for early parole based on the fact she
was a victim of domestic violence. See S.C. Code Ann. § 16-25-90 (2015) (stating
a victim of domestic violence convicted of an offense against a household member
is eligible for parole after serving one-fourth of his or her prison term).
the charge actually given sufficiently covers the substance of the request." State v.
Mattison, 388 S.C. 469, 479, 697 S.E.2d 578, 583 (2010) (citation omitted).

                                         III.
We agree with Petitioner that the "charge as a whole" approach cannot rescue this
conviction. Over the years, the circumstantial evidence charge in South Carolina
has evolved significantly. See Logan, 405 S.C. at 95–97, 747 S.E.2d at 450–51
(setting forth the full history of the evolution). In relevant part, it was initially
required that circumstantial evidence point conclusively to the guilt of the accused
to the exclusion of every other reasonable hypothesis. See, e.g., State v. Kimbrell,
191 S.C. 238, 242, 4 S.E.2d 121, 122 (1939) (citing State v. Langford, 74 S.C. 460,
55 S.E. 120 (1906); State v. Hudson, 66 S.C. 394, 44 S.E. 968 (1903); State v.
Aughtry, 49 S.C. 285, 26 S.E. 619 (1897)). Subsequently, in response to guidance
from the Supreme Court of the United States,5 the Court removed this requirement,
instead ordering trial courts to instruct juries that circumstantial evidence must be
given the same weight and treatment as direct evidence (the Grippon charge). See
State v. Grippon, 327 S.C. 79, 83–84, 489 S.E.2d 462, 464 (1997); see also State v.
Cherry, 361 S.C. 588, 601, 606 S.E.2d 475, 482 (2004) (holding the Grippon
charge was to be the "sole and exclusive" one to be given in circumstantial
evidence cases from that time forward).

However, in Logan, the Court posited that there are different approaches used to
analyze direct and circumstantial evidence. Logan, 405 S.C. at 97, 747 S.E.2d at
451. The Court reasoned that "evaluation of circumstantial evidence requires
jurors to find that the proponent of the evidence has connected collateral facts in
order to prove the proposition propounded—a process not required when
evaluating direct evidence." Id. The Court found that "defendants should not be
restricted from requesting a jury charge that reflects the requisite connection of
collateral facts necessary for a conviction." Id. at 99, 747 S.E.2d at 452.
Therefore, we held the trial court "should" give the specific charge provided in the
Logan decision, quoted in the introduction of this opinion, when requested. See id.
(explaining the Court's "holding does not prevent the trial court from issuing the
[Grippon charge]. However, trial courts may not exclusively rely on that charge


5
  See Holland v. United States, 348 U.S. 121, 139–40 (1954) (holding if a proper
reasonable doubt instruction is given, a jury need not be instructed that
circumstantial evidence must be so strong as to exclude every reasonable
hypothesis other than guilt).
over a defendant's objection." (emphasis added)).

We acknowledge there may be a case in which a trial court's failure to give the
Logan charge might be harmless error, but this is not such a case. The State's case
against Petitioner was almost exclusively circumstantial. The State relied on (1)
eyewitness testimony prior to the shooting to suggest Petitioner was angry, and (2)
testimony from the pathologist explaining the pathway of the bullet could have
been caused by Petitioner shooting the victim as he walked up the stairs to the
house. In urging this Court to find the error was harmless, the State entirely
disregards the testimony of its own witness that it was plausible the fatal wound
could have been caused by the victim charging Petitioner, exactly as Petitioner
testified.6

The competing inferences involved in this circumstantial evidence case illustrate
well the need for the Logan charge. Because the failure to provide the Logan
circumstantial evidence charge was not harmless and that failure manifestly
prejudiced Petitioner, we reverse and remand for a new trial.

REVERSED AND REMANDED.

BEATTY, C.J., HEARN, FEW and JAMES, JJ., concur.




6
  As an appellate court, we must be careful not to weigh the evidence. In assessing
the State's harmless error argument, we recognize that what we refer to as plausible
conflicting evidence may not be viewed as such by the jury. Fundamental to a
jury's role as fact-finder is making credibility determinations, which lie in the sole
province of the jury. Our discussion here is for the limited purpose of explaining
why the failure to give the Logan charge cannot be considered harmless.
