          THE STATE OF SOUTH CAROLINA
               In The Supreme Court

   The State, Respondent,

   v.

   Shane Adam Burdette, Petitioner.

   Appellate Case No. 2017-001990



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                 Appeal from Oconee County
          J. Cordell Maddox Jr., Circuit Court Judge


                    Opinion No. 27910
        Heard February 21, 2019 – Filed July 31, 2019



              REVERSED AND REMANDED


   Appellate Defender Susan Barber Hackett, of Columbia,
   for Petitioner.

   Attorney General Alan McCrory Wilson, Deputy Attorney
   General Donald J. Zelenka, Senior Assistant Deputy
   Attorney General Melody Jane Brown, Senior Assistant
   Attorney General William M. Blitch Jr., and Assistant
   Attorney General Susannah Rawl Cole, all of Columbia;
   and Solicitor David Rhys Wagner Jr., of Anderson, all for
   Respondent.
JUSTICE JAMES: Shane Adam Burdette was indicted and tried for murder and
possession of a weapon during the commission of a violent crime. Over Burdette's
objection, the trial court charged the jury that it could infer the element of malice
from the use of a deadly weapon. The jury convicted Burdette of the lesser-included
offense of voluntary manslaughter and possession of a weapon during the
commission of a violent crime. The court of appeals affirmed Burdette's conviction,
holding that although the trial court erred in giving the inferred malice jury
instruction, Burdette suffered no prejudice. State v. Burdette, Op. No. 2017-UP-237
(S.C. Ct. App. filed June 7, 2017). We granted Burdette's petition for a writ of
certiorari to review the court of appeals' decision. We hold the trial court's erroneous
jury instruction was not harmless beyond a reasonable doubt. We therefore reverse
and remand for a new trial on the offenses of voluntary manslaughter and possession
of a weapon during the commission of a violent crime. We also hold, regardless of
the evidence presented at trial, a trial court shall no longer instruct a jury that malice
may be inferred from the use of a deadly weapon.

                  I. FACTUAL AND PROCEDURAL HISTORY
      Burdette shot and killed Evan Tyner (Victim). Victim died from a single
shotgun pellet wound to the back of his neck. After the shooting, Burdette gave
several inconsistent statements to law enforcement. The State's theory of the case
and Burdette's theory of the case were substantially different. The State claimed
murder; Burdette claimed accident. Burdette was indicted for murder and possession
of a weapon during the commission of a violent crime.

       At trial, evidence was presented in support of both the State's and Burdette's
theories of the case. Following the close of the presentation of evidence, the trial
court informed the parties it intended to charge the jury on the law of murder,
voluntary manslaughter, involuntary manslaughter, and accident. The trial court
gave the parties a copy of its proposed jury charge for review. Burdette objected to
the trial court's proposed instruction that inferred malice could arise when a deadly
weapon is used. Citing State v. Belcher,1 Burdette argued the instruction was
inappropriate because there was evidence presented that could reduce, excuse,
justify, or mitigate the homicide. The trial court gave the charge over Burdette's
objection.

      The trial court charged the law of murder, voluntary manslaughter,
involuntary manslaughter, and accident. When charging the law of murder, the trial


1
    385 S.C. 597, 612, 685 S.E.2d 802, 810 (2009).
court defined murder as a killing with malice aforethought and stated to the jury,
"Inferred malice may also arise when the deed is done with a deadly weapon." When
charging the law of voluntary manslaughter, the trial court did not specifically
inform the jury that malice is not an element of that offense. However, when
charging the law of involuntary manslaughter, the trial court specifically informed
the jury that malice is not an element of that offense. Of course, malice is not an
element of either voluntary or involuntary manslaughter.

      After deliberating for about one hour, the jury requested additional instruction
from the trial court on the law of murder, voluntary manslaughter, and involuntary
manslaughter to provide the jury with "a better understanding" of the different
charges. The trial court essentially repeated its previous instruction and again
included in the murder instruction that the jury could infer the element of malice
from the use of a deadly weapon. The trial court again did not inform the jury that
malice is not an element of voluntary manslaughter but did inform the jury that
malice is not an element of involuntary manslaughter.

        The jury found Burdette not guilty of murder but guilty of voluntary
manslaughter and possession of a weapon during the commission of a violent crime.
The trial court sentenced Burdette to twenty-five years in prison, suspended upon
the service of fifteen years and five years' probation for voluntary manslaughter. The
trial court also sentenced Burdette to a consecutive prison term of five years for the
weapon possession charge.

       Burdette appealed, arguing the trial court erroneously instructed the jury that
malice may be inferred from the use of a deadly weapon because evidence was
presented tending to reduce, mitigate, excuse, or justify the homicide. The court of
appeals affirmed in an unpublished opinion. State v. Burdette, Op. No. 2017-UP-
237 (S.C. Ct. App. filed June 7, 2017). Although the court of appeals agreed the
inferred malice jury instruction was erroneous, it held Burdette "suffered no
prejudice" from the erroneous instruction. Id. The court of appeals reasoned
Burdette was convicted of voluntary manslaughter—not murder—and because
malice is not an element of voluntary manslaughter, the inferred malice instruction
could not have contributed to the verdict. Id. This Court granted certiorari to review
the court of appeals' decision.
                             II. ISSUES PRESENTED

1. Did the trial court err in giving the inferred malice instruction?

2. If error, was the error harmless beyond a reasonable doubt?

3. Does the inferred malice instruction continue to have validity?

                                 III. DISCUSSION

   A. The Inferred Malice Jury Instruction

             1. Was the Jury Instruction Erroneous?

       There was evidence presented at trial that tended to reduce, mitigate, excuse,
or justify Burdette's killing of Victim—making the trial court's inferred malice
instruction inappropriate. See State v. Stanko, 402 S.C. 252, 260, 741 S.E.2d 708,
712 (2013) ("A jury charge instructing that malice may be inferred from the use of
a deadly weapon is no longer good law in South Carolina where evidence is
presented that would reduce, mitigate, excuse, or justify the homicide." (citing State
v. Belcher, 385 S.C. 597, 600, 685 S.E.2d 802, 803-04 (2009))). The State rightly
concedes this point. The court of appeals therefore correctly held the giving of the
instruction in this case was error.

             2. Was the Trial Court's Error Harmless?
       An erroneous instruction alone is insufficient to warrant this Court's reversal.
"Errors, including erroneous jury instructions, are subject to harmless error
analysis." Belcher, 385 S.C. at 611, 685 S.E.2d at 809. "When considering whether
an error with respect to a jury instruction was harmless, we must 'determine beyond
a reasonable doubt that the error complained of did not contribute to the verdict.'"
State v. Middleton, 407 S.C. 312, 317, 755 S.E.2d 432, 435 (2014) (quoting State v.
Kerr, 330 S.C. 132, 144-45, 498 S.E.2d 212, 218 (Ct. App. 1998)). "In making a
harmless error analysis, our inquiry is not what the verdict would have been had the
jury been given the correct charge, but whether the erroneous charge contributed to
the verdict rendered." Id. (quoting Kerr, 330 S.C. at 145, 498 S.E.2d at 218).

      The State maintains, and the court of appeals held, Burdette was not
prejudiced by the trial court's erroneous inferred malice instruction (1) because
Burdette was convicted of voluntary manslaughter, and (2) since malice is not an
element of voluntary manslaughter, the inclusion of the inferred malice instruction
in the jury instruction on murder could not have contributed to the verdict. Burdette
argues a reading of the jury charge as a whole compels the conclusion that the trial
court's error was not harmless. We agree with Burdette.

        The trial court's charge to the jury of the elements of murder, voluntary
manslaughter, and involuntary manslaughter take up a mere six pages of the overall
trial transcript. Absent a self-defense instruction, that is the typical length of this
portion of the jury instruction. As is customary, the trial court first instructed the
jury on the offense of murder, then the lesser-included offense of voluntary
manslaughter, and then the lesser-included offense of involuntary manslaughter.

       In many instances, a lesser-included offense is deemed to exist because the
lesser offense is "one whose elements are wholly contained within the crime
charged." State v. Dickerson, 395 S.C. 101, 118, 716 S.E.2d 895, 904 (2011) (citing
State v. Northcutt, 372 S.C. 207, 215, 641 S.E.2d 873, 877 (2007)). This is known
as the "elements test." See Northcutt, 372 S.C. at 215, 641 S.E.2d at 877. In those
cases, the trial court simply explains to the jury that the lesser offense includes all of
the elements of the greater offense except for one or more elements, and the trial
court then lists those elements that are not included in the lesser offense. In those
cases, the trial court is able to explain the distinction between the greater and lesser
offense in an orderly and very understandable fashion. For example, possession of
cocaine is a lesser-included offense of possession of cocaine with intent to distribute
(PWID) because possession of cocaine contains all the elements of PWID except for
the intent to distribute.

       In other instances, such as in the case at bar, one offense may be considered a
lesser offense of another not by virtue of the elements test, but rather because it "has
traditionally been considered a lesser included offense of the greater offense
charged." Northcutt, 372 S.C. at 216, 641 S.E.2d at 877-78. In those instances, the
elements of the lesser offense are not "wholly contained" within the greater offense,
and the trial court cannot simply list for the jury those elements not included in the
lesser offense. Therefore, there is greater potential for jury confusion when the lesser
offense has traditionally been considered a lesser offense of the greater offense.
Because there is greater potential for jury confusion, there is a great need for clarity
when the trial court explains the greater and lesser offenses to the jury.

     Voluntary manslaughter is a lesser offense of murder not by virtue of the
elements test, but because it has traditionally been considered a lesser offense of
murder. Therefore, a trial court must allow the jury to consider the lesser offense of
voluntary manslaughter if there is evidence from which it could be inferred that a
defendant committed voluntary manslaughter rather than the greater offense of
murder. "Voluntary and involuntary manslaughter are both lesser-included offenses
of murder." State v. Sams, 410 S.C. 303, 309, 764 S.E.2d 511, 514 (2014).
Obviously, neither of these offenses are considered lesser offenses of murder by
virtue of the elements tests, as the elements of neither offense are "wholly contained"
in the elements of murder.

        In State v. Scott, we repeated the general rule that involuntary manslaughter
is "the unintentional killing of another without malice while engaged in either (1)
the commission of some unlawful act not amounting to a felony and not naturally
tending to cause death or great bodily harm, or (2) the doing of a lawful act with a
reckless disregard for the safety of others." 414 S.C. 482, 487, 779 S.E.2d 529, 531
(2015) (quoting Sams, 410 S.C. at 309, 764 S.E.2d at 514). Involuntary
manslaughter mandates a showing of criminal negligence, defined as "the reckless
disregard of the safety of others." S.C. Code Ann. § 16-3-60 (2015). "Recklessness
is a state of mind in which the actor is aware of his or her conduct, yet consciously
disregards a risk which his or her conduct is creating." State v. Pittman, 373 S.C.
527, 571, 647 S.E.2d 144, 167 (2007).

       When considering whether an incorrect jury instruction constitutes harmless
error, we are required to review the trial court's charge to the jury in its entirety. See
Stanko, 402 S.C. at 264, 741 S.E.2d at 714 ("Jury instructions should be considered
as a whole, and if as a whole, they are free from error, any isolated portions which
may be misleading do not constitute reversible error."). We will therefore review
the trial court's instructions on the offenses of murder, voluntary manslaughter, and
involuntary manslaughter. Because voluntary and involuntary manslaughter are
lesser offenses of murder under the more cumbersome "traditional" test, it was
particularly important for the trial court to clearly explain the elements of all three
offenses in this case.

       As to the count of murder, the trial court charged the following points to the
jury: the State must prove the defendant killed another person with malice
aforethought; malice is hatred, ill will, or hostility towards another person; malice is
the intentional doing of a wrongful act without just cause or excuse and with an
intent to inflict an injury or under circumstances that the law will infer an evil intent;
malice need not exist for any particular time before the act is committed, but malice
must exist in the mind of the defendant just before and at the time the act is
committed; therefore, there must be a combination of the previous evil intent and the
act; malice aforethought may be expressed or inferred, but the terms "expressed" or
"inferred" do not mean different kinds of malice, but instead mean the manner in
which the malice can be proven to have existed, and that is by direct or circumstantial
evidence; "expressed malice" is shown when a person speaks words which express
ill will or hatred for another, or when the person prepared beforehand to do the act
which was later accomplished, with the examples being given of a person "lying in
wait" for a person or other acts of preparation going to show that the deed was in the
defendant's mind ahead of time; malice may be inferred from conduct showing a
total disregard for human life; "inferred malice" may arise when the deed is done
with a deadly weapon; the trial court defined "deadly weapon" and gave examples
of deadly weapons.

       The trial court then instructed the jury that if it found the State failed to prove
beyond a reasonable doubt that the defendant committed murder, it must consider
whether the State proved beyond a reasonable doubt that the defendant committed
the lesser-included offense of voluntary manslaughter. The trial court charged the
following: the State must prove beyond a reasonable doubt that the defendant took
the life of another person in the sudden heat of passion based on sufficient legal
provocation; both heat of passion and sufficient legal provocation must be present at
the time of the killing; sudden heat of passion may, for a time, affect a person's self-
control and temporarily disturb a person's reason; this sudden heat of passion must
be the type that would make an ordinary person unable to coolly reflect on his actions
and would produce an uncontrollable influence or impulse to do violence; sufficient
legal provocation must be the type that would make a person of ordinary reason and
caution become enraged and lose control temporarily; such provocation necessary
for voluntary manslaughter must come from some act by the victim or related to the
victim; words alone are insufficient to support 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; exercising a
legal right, no matter how offensive it may be to another, is never sufficient legal
provocation to support voluntary manslaughter; if the heat of passion cools or if there
was enough time between the provocation and the killing for the passion of a
reasonable person to cool, the killing would not be voluntary manslaughter; when
considering whether a reasonable person would have had enough time to cool down
or cool off, all of the circumstances surrounding the killing must be considered; it
is permissible to consider the nature of the provocation, if any, the defendant's
mental and physical state, and the circumstances and relationship between the
parties.
      Importantly however, the trial court did not explain to the jury that malice is
not an element of voluntary manslaughter, despite section 16-3-50 of the South
Carolina Code (2015) referring to "manslaughter" as "the unlawful killing of another
without malice, express or implied."

       After concluding the voluntary manslaughter instruction, the trial court
instructed the jury that if it found the State failed to prove beyond a reasonable doubt
that the defendant committed murder or voluntary manslaughter, it must consider
whether the State proved beyond a reasonable doubt that the defendant committed
the lesser-included offense of involuntary manslaughter. Specifically, the trial court
instructed the jury: the State must prove beyond a reasonable doubt that the
defendant unintentionally killed the victim "without malice" but while engaged in
an unlawful activity not naturally tending to cause death or great bodily harm, or that
the defendant unintentionally killed the victim without malice while engaged in a
lawful activity with reckless disregard for the safety of others; "unintentional" means
the defendant did not intend for anyone to be killed or seriously injured; "reckless
disregard for the safety of others" requires more than mere negligence or
carelessness; "mere negligence" or "carelessness" is the failure to use the care that a
person of ordinary reason would use under the same or similar circumstances;
"recklessness" is a conscious failure to use ordinary care; exercising "reckless
disregard for the safety of others" means that one is not interested in the
consequences of his acts or the rights and safety of others; if a person who knows or
should know that ordinary care requires certain precautions to be taken for the safety
of others when using a dangerous instrumentality such as a gun or car, but that person
fails to use those precautions without concern, the person's actions are considered
reckless; the State must prove beyond a reasonable doubt that the defendant's act
was the proximate cause of death; "proximate cause" is direct, immediate, and
efficient cause; "proximate cause" is the cause without which the death of the person
would not have resulted; there must be a chain of causation from the time of the
injury inflicted by the defendant until the time of the victim's death; proximate cause
does not necessarily mean that it occurred immediately prior to the victim's death.

       The trial court twice instructed the jury on voluntary manslaughter but did not
include the fact that it is a killing without malice. The trial court twice instructed
the jury that involuntary manslaughter is the unintentional killing of another without
malice. Burdette contends that while the trial court correctly charged the law of
involuntary manslaughter, the trial court should have similarly instructed the jury
that malice is not an element of voluntary manslaughter. Burdette claims the charge
as a whole likely led the jury to incorrectly believe that malice is an element of
voluntary manslaughter. Consequently, Burdette argues, the jury was left with the
impression that it could use the inference of malice deriving from the use of a deadly
weapon as a basis for convicting him of voluntary manslaughter.

       After consideration of the jury instructions as a whole, we are compelled to
agree with Burdette. When the trial court instructed the jury that malice was not an
element of involuntary manslaughter, but did not instruct the jury that malice was
not an element of voluntary manslaughter, the jury was left with the incorrect
impression that malice is an element of voluntary manslaughter, which allowed the
jury to use the improperly charged inference of malice from the use of a deadly
weapon to find Burdette guilty of voluntary manslaughter. The prejudice stemming
from the erroneous and confusing instructions was compounded when, during
deliberations, the jury requested the trial court to provide a "better understanding"
of the charges of murder, voluntary manslaughter, and involuntary manslaughter,
and the trial court repeated its original instructions which (1) included the erroneous
inferred malice instruction and (2) did not include an instruction that malice is not
an element of voluntary manslaughter. The charge as a whole necessarily resulted
in confusion that contributed to the verdict that Burdette was guilty of voluntary
manslaughter. Therefore, we cannot conclude the trial court's erroneous instruction
was harmless beyond a reasonable doubt.

   B. Continuing Validity of the Inferred Malice Instruction in South
      Carolina
        In Belcher, we held the trial court could no longer give the inferred malice
from the use of a deadly weapon charge in cases in which evidence was presented
that would reduce, mitigate, excuse, or justify a homicide or an assault and battery
with the intent to kill. 385 S.C. at 612, 685 S.E.2d at 810. We now consider whether
the permissive inference charge may be given in any setting, even those in which no
evidence is presented that would reduce, mitigate, excuse, or justify the commission
of an offense containing the element of malice. We have held in other settings that
it is improper to give examples of conduct the jury may consider when determining
whether the State has proven an element of a crime or when determining whether
certain other facts have been proven or disproven. See, e.g., State v. Grant, 275 S.C.
404, 407-08, 272 S.E.2d 169, 171 (1980) (holding it was improper for the trial judge
to charge the jury that the defendant's flight may be considered as evidence of guilt);
State v. Hughey, 339 S.C. 439, 452, 529 S.E.2d 721, 728 (2000) (holding, in a
voluntary manslaughter case, the trial court correctly refused the defendant's request
to charge the jury specific examples of conduct that might be considered as evidence
of legal provocation, as the giving of such examples would be an impermissible
charge on the facts), overruled on other grounds by Rosemond v. Catoe, 383 S.C.
320, 680 S.E.2d 5 (2009); State v. Cheeks, 401 S.C. 322, 328-29, 737 S.E.2d 480,
484 (2013) (holding, in a drug trafficking case, that the trial court must not charge
the jury that actual knowledge of the presence of a drug is strong evidence of a
defendant's intent to control its disposition or use).

        In Cheeks, we noted, "Simply because certain facts may be considered by the
jury as evidence of guilt in a given case where the circumstances warrant, it does not
follow that [the jury] should be charged that these facts are probative of guilt. It is
always for the jury to determine the facts, and the inferences that are to be drawn
from these facts." 401 S.C. at 328, 737 S.E.2d at 484. When the trial court tells the
jury it may use evidence of the use of a deadly weapon to establish the existence of
malice, a critical element of the charge of murder, the trial court has directly
commented upon facts in evidence, elevated those facts, and emphasized them to the
jury. Even telling the jury that it is to give evidence of the use of a deadly weapon
only the weight the jury determines it should be given does not remove the taint of
the trial court's injection of its commentary upon that evidence. Such an instruction
is no different than an instruction that the jury may use evidence of flight as evidence
of guilt. A jury instruction that malice may be inferred from the use of a deadly
weapon is an improper court-sponsored emphasis of a fact in evidence—that the
deed was done with a deadly weapon—and it should no longer be permitted.

        We decide this issue solely under the common law; pursuant to our policy-
making role under the common law, we hold, regardless of the evidence presented
at trial, a trial court shall not instruct the jury that it may infer the existence of malice
when the deed was done with a deadly weapon. Of course, whether the deed was
done with a deadly weapon or not, the State and the defendant are free to argue the
existence or nonexistence of malice based on the evidence in the record. For
example, if evidence is introduced that the deed was done with a deadly weapon, the
State is free to argue to the jury that it should infer the existence of malice based on
that fact and any other facts that would naturally and logically allow a jury to
conclude the defendant acted with malice aforethought.2 Similarly, if the deed was
not done with a deadly weapon, a defendant is free to argue the absence of malice
based on that fact and any other facts that would naturally and logically allow a jury
to conclude the State failed to prove beyond a reasonable doubt that the defendant
acted without malice aforethought. "It is axiomatic that some matters appropriate

2
 However, we repeat our comment in State v. Cartwright: "We do not suggest there
are no limits to a party's jury argument, for the law provides limits, as enhanced by
Due Process protections." 425 S.C. 81, 93 n.3, 819 S.E.2d 756, 762 n.3 (2018).
for jury argument are not proper for charging. 'Do jurors need the court's permission
to infer something? The answer is, of course not.'" Belcher, 385 S.C. at 612 n.9,
685 S.E.2d at 810 n.9 (quoting Bruce A. Antkowiak, The Art of Malice, 60 RUTGERS
L. REV. 435, 476 (2008)).

      Of course, our ruling does not prohibit a trial court from citing outside the
presence of the jury the proposition that malice may be inferred from the use of a
deadly weapon. For example, when ruling on a defendant's motion for directed
verdict on the ground the State failed to prove the element of malice, a trial court
may take into account the fact that the deed was done with a deadly weapon.

                               IV. CONCLUSION
       We hold the trial court's erroneous inferred malice instruction was not
harmless beyond a reasonable doubt. We reverse Burdette's convictions and remand
for a new trial on the charges of voluntary manslaughter and possession of a weapon
during the commission of a violent crime. Because Burdette was acquitted of
murder, he cannot be retried for murder. See State v. Parker, 391 S.C. 606, 612, 707
S.E.2d 799, 801 (2011) (providing that pursuant to the law of double jeopardy, a
defendant may not be prosecuted for the same offense after an acquittal).

      We further overrule our precedent to the extent it permits a jury instruction
that malice may be inferred from the defendant's use of a deadly weapon.3


3
  Our decision today overrules in part a considerable amount of South Carolina case
law. We overrule those cases insofar as it can be construed that we have approved
a trial court's charge that a jury may infer the existence of malice from the
defendant's use of a deadly weapon. The following represents a non-exhaustive list
of such cases: Gibson v. State, 416 S.C. 260, 786 S.E.2d 121 (2016); State v. Stanko,
402 S.C. 252, 741 S.E.2d 708 (2013); State v. Belcher, 385 S.C. 597, 685 S.E.2d 802
(2009); Sheppard v. State, 357 S.C. 646, 594 S.E.2d 462 (2004); Gibson v. State,
355 S.C. 429, 586 S.E.2d 119 (2003); Tate v. State, 351 S.C. 418, 570 S.E.2d 522
(2002); State v. Harvin, 345 S.C. 190, 547 S.E.2d 497 (2001); State v. Von Dohlen,
322 S.C. 234, 471 S.E.2d 689 (1996); Plyler v. State, 309 S.C. 408, 424 S.E.2d 477
(1992); Carter v. State, 301 S.C. 396, 392 S.E.2d 184 (1990); State v. Smith, 288
S.C. 329, 342 S.E.2d 600 (1986); State v. Peterson, 287 S.C. 244, 335 S.E.2d 800
(1985); State v. Lucas, 285 S.C. 37, 328 S.E.2d 63 (1985); State v. Campbell, 287
S.C. 377, 339 S.E.2d 109 (1985); State v. Woods, 282 S.C. 18, 316 S.E.2d 673
(1984); State v. Jennings, 280 S.C. 62, 309 S.E.2d 759 (1983); State v. Elmore, 279
S.C. 417, 308 S.E.2d 781 (1983); State v. Koon, 278 S.C. 528, 298 S.E.2d 769
Regardless of the evidence presented at trial, trial courts shall not instruct a jury that
the element of malice may be inferred when the deed is done with a deadly weapon.
Our ruling today is effective in this case and in those cases which are pending on
direct review or are not yet final, so long as the issue is preserved. See Griffith v.
Kentucky, 479 U.S. 314, 328 (1987) (holding "a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases . . . pending on direct review
or not yet final"). However, today's ruling will not apply to convictions challenged
on post-conviction relief. See Belcher, 385 S.C. at 613, 685 S.E.2d at 810 (citing
Teague v. Lane, 489 U.S. 288 (1989)).

REVERSED AND REMANDED.



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




(1982); State v. Friend, 276 S.C. 552, 281 S.E.2d 106 (1981); State v. Hyman, 276
S.C. 559, 281 S.E.2d 209 (1981); State v. Crocker, 272 S.C. 344, 251 S.E.2d 764
(1979); State v. Robinson, 149 S.C. 439, 147 S.E. 441 (1929); State v. Portee, 122
S.C. 298, 115 S.E. 238 (1922); State v. Jackson, 36 S.C. 487, 15 S.E. 559 (1892);
State v. Levelle, 34 S.C. 120, 13 S.E. 319 (1891); State v. King, 412 S.C. 403, 772
S.E.2d 189 (Ct. App. 2015); State v. Frazier, 401 S.C. 224, 736 S.E.2d 301 (Ct. App.
2013); State v. Price, 400 S.C. 110, 732 S.E.2d 652 (Ct. App. 2012); State v. Kinard,
373 S.C. 500, 646 S.E.2d 168 (Ct. App. 2007); State v. Franklin, 310 S.C. 122, 425
S.E.2d 758 (Ct. App. 1992); State v. Merriman, 287 S.C. 74, 337 S.E.2d 218 (Ct.
App. 1985). We have not included the cases that were previously overruled by
Belcher.
