            THE STATE OF SOUTH CAROLINA 

                 In The Supreme Court 


   The State, Respondent,

   v.

   Desmond J. Sams, Petitioner.

   Appellate Case No. 2011-195886



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



              Appeal From Colleton County 

    The Honorable Perry M. Buckner, Circuit Court Judge 



                      Opinion No. 27447 

        Heard October 2, 2013 – Filed September 24, 2014 



                         AFFIRMED


   Tristan M. Shaffer, of Myrtle Beach, and Appellate 

   Defender Susan Barber Hackett, of Columbia, for 

   Petitioner. 


   Attorney General Alan McCrory Wilson and Assistant
   Attorney General Mark Reynolds Farthing, both of
   Columbia, for Respondent.
      JUSTICE BEATTY: Desmond J. Sams was convicted of voluntary
manslaughter after he strangled the victim, Jake Frazier, during an altercation.
Sams appealed, arguing the circuit court erred in denying his request to instruct the
jury on involuntary manslaughter. The Court of Appeals affirmed. State v. Sams,
Op. No. 2011-UP-205 (S.C. Ct. App. filed May 4, 2011). This Court granted
Sams's petition for a writ of certiorari. We affirm.

                                     I. FACTS
       In the early morning hours of April 12, 2008, Sams and Lisa Strickland,
along with Frazier and Stephanie Ballard, were all drinking at Strickland's
residence in Walterboro when a dispute suddenly occurred between Sams and
Frazier.1 During the ensuing struggle, Sams managed to get on top of Frazier, who
was lying face down on the floor. Sams locked his arm around Frazier's neck
while lying on top of him. According to Ballard and Strickland, Frazier repeatedly
stated that he could not breathe and he asked Sams to let him go. Frazier also told
Sams that he had children. Sams, however, refused to release Frazier, so Ballard
and Strickland tried unsuccessfully to get Sams to release his chokehold. Sams
allegedly struck Ballard several times when she tried to separate the two men.
Around 4:36 a.m., Strickland made the last of several calls to 911 to report the
fight and to request police assistance.

       Steve Dunn, a supervisor at the Colleton County Sheriff's Department, was
dispatched at 4:38 a.m., and he arrived at the scene around 4:46 a.m., some ten
minutes after the last call for help was made. He was met on the porch by
Strickland, who told the officer, "They're in here," and led him to a bedroom on the
right side of the trailer. The officer observed two men lying face down on the
floor, one on top of the other. According to the officer, he drew his taser and
ordered the man on top, Sams, to "Get off of him." However, Sams did not release
his grip on Frazier, who was not moving. The officer ordered Sams to get up a
second time, and Sams responded, "No, he'll want to fight." The officer then
ordered Sams a third time to get up.


1
  The parties apparently were couples. Frazier and Ballard were in a relationship
and had a son. Sams and Strickland had gone out a couple of times. Sams and
Frazier were cousins. According to the women, the physical altercation began
when Sams allegedly touched Ballard inappropriately.
       At that point, Sams released Frazier and stood up. When Sams got up, the
officer observed Sams's "arms [had been] wrapped around the neck area of the
victim" in an "arm lock." Frazier was unresponsive and remained face down on
the floor. The officer handcuffed Sams and asked Strickland and Ballard to pull
Frazier away from the wall and to roll him over on his back.

       The officer noticed Frazier "was not breathing" and that he "had a blue cast
to his skin." The officer noted Frazier had shown no signs of life and had never
made any movements.

       Dr. Susan Presnell, a forensic pathologist, performed an autopsy and found
Frazier had a number of bruises and scratches in his neck area. She also observed
that he had bruises in the underlying muscles of his neck, as well as a number of
petechiae, or hemorrhages, in the lining of his eye and around the lining of his
eyelid, all of which were indicative of strangulation. Dr. Presnell determined
Frazier's cause of death to be asphyxiation, or lack of oxygen, due to strangulation.

       Sams was indicted for murder for the choking death of Frazier. At trial, the
circuit court instructed the jury on murder, the lesser-included offense of voluntary
manslaughter, and self-defense. The circuit court declined Sams's request to
charge involuntary manslaughter. The jury found Sams guilty of voluntary
manslaughter.

      Sams appealed, arguing the circuit court erred in denying his request to
charge the jury on involuntary manslaughter. The Court of Appeals affirmed. This
Court granted Sams's petition for a writ of certiorari.

                          II. STANDARD OF REVIEW
      In criminal cases, appellate courts sit to review only errors of law. State v.
Baccus, 367 S.C. 41, 625 S.E.2d 216 (2006); State v. Wilson, 345 S.C. 1, 545
S.E.2d 827 (2001). Thus, an appellate court is bound by a trial court's factual
findings unless they are clearly erroneous. Wilson, 345 S.C. at 6, 545 S.E.2d at
829.

        "The law to be charged to the jury is determined by the evidence presented
at trial." State v. Hill, 315 S.C. 260, 262, 433 S.E.2d 848, 849 (1993). The trial
court is required to charge a jury on a lesser-included offense if there is evidence
from which it could be inferred that the defendant committed the lesser, rather than
the greater, offense. State v. Drafts, 288 S.C. 30, 340 S.E.2d 784 (1986); see also
Dempsey v. State, 363 S.C. 365, 610 S.E.2d 812 (2005); State v. Gourdine, 322
S.C. 396, 472 S.E.2d 241 (1996).

       "An appellate court will not reverse the trial [court]'s decision absent an
abuse of discretion." State v. Pittman, 373 S.C. 527, 570, 647 S.E.2d 144, 166
(2007). "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. at 570, 647 S.E.2d at 166-67. "The refusal to grant a requested jury
charge that states a sound principle of law applicable to the case at hand is an error
of law." Id. at 570, 647 S.E.2d at 167.

       In determining whether the evidence requires a charge on a lesser-included
offense, the Supreme Court must view the facts in the light most favorable to the
defendant. State v. Cole, 338 S.C. 97, 525 S.E.2d 511 (2000). The charge request
is properly rejected when there is no evidence tending to show the defendant was
guilty of the lesser offense. State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996);
State v. Cooney, 320 S.C. 107, 463 S.E.2d 597 (1995); State v. Gadsden, 314 S.C.
229, 442 S.E.2d 594 (1994).

                              III. LAW/ANALYSIS

       On appeal, Sams contends the Court of Appeals erred in determining there
was no evidence to support a charge of involuntary manslaughter when he testified
that he was attacked by Frazier and he "unintentionally strangled his friend while
trying to restrain his friend." We disagree.

      Sams was indicted for the offense of murder for killing Frazier by means of
choking. See S.C. Code Ann. § 16-3-10 (2003) (defining "murder" as "the killing
of any person with malice aforethought, either express or implied."). Voluntary
and involuntary manslaughter are both lesser-included offenses of murder. State v.
Williams, 399 S.C. 281, 731 S.E.2d 338 (Ct. App. 2012).

      "Voluntary manslaughter is the unlawful killing of a human being in sudden
heat of passion upon sufficient legal provocation." Cole, 338 S.C. at 101, 525
S.E.2d at 513. "Both heat of passion and sufficient legal provocation must be
present at the time of the killing." Id. The sudden heat of passion need not
dethrone reason entirely or shut out knowledge and volition, but it must be such as
would naturally disturb the sway of reason and render the mind of an ordinary
person incapable of cool reflection and produce what may be called an
uncontrollable impulse to do violence. Id. at 101-02, 525 S.E.2d at 513 (citing
State v. Byrd, 323 S.C. 319, 474 S.E.2d 430 (1996)).

       Involuntary manslaughter is defined as 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. State v. Tucker, 324 S.C. 155, 478 S.E.2d 260 (1996); see also S.C. Code
Ann. § 16-3-60 (2003) (stating a person charged with involuntary manslaughter
may be convicted only upon a showing of criminal negligence, "defined as the
reckless disregard of the safety of others").

      Sams's theory at trial was essentially self-defense. Sams testified that he did
not mean to kill Frazier and maintained he was just trying to restrain him to protect
himself during their fight. However, Sams admitted that he held his arm around
Frazier's neck and did not release his hold on him until the police officer arrived
and ordered him to get off of Frazier. It is undisputed that more than ten minutes
elapsed during this time.

       In his appeal, Sams asserted the circuit court erred because the evidence
arguably supported a factual finding that he unintentionally killed Frazier while
acting in self-defense. The jury rejected Sams's argument of self-defense. The
Court of Appeals rejected this contention as well and affirmed. State v. Sams, Op.
No. 2011-UP-205 (S.C. Ct. App. filed May 4, 2011). The court observed Sams's
appellate brief was scant and did not articulate which definition of involuntary
manslaughter he believed was applicable, so it analyzed the case under both
definitions. Id., slip op. at *1.

       On certiorari, Sams contends the Court of Appeals erred in finding there was
no evidence to support the charge of involuntary manslaughter because he testified
that he was attacked by his friend and unintentionally strangled his friend while
trying to restrain him. Sams argues he was entitled to the charge under either
definition of the offense.

      As noted above, involuntary manslaughter is defined as the killing of
another without malice and unintentionally, while one is 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 of the safety of others. Tucker, 324 S.C. at 170, 478 S.E.2d at
268.

       At trial, defense counsel asked for a charge on involuntary manslaughter
because the killing was unintentional and Sams might have been criminally
negligent because, even if he wasn't really in danger, he believed that he was.
Criminal negligence is statutorily defined as a reckless disregard of the safety of
others. State v. Smith, 315 S.C. 547, 446 S.E.2d 411 (1994) (citing S.C. Code Ann.
§ 16-3-60).

      As an initial matter, we agree with the Court of Appeals that Sams never
expressly asserted to the circuit court (or to the Court of Appeals) that his actions
were not of a type naturally tending to cause great bodily harm or death. Thus, we
conclude the Court of Appeals should not have considered the first definition of
involuntary manslaughter as it was not properly preserved.

       To the extent Sams further claims on appeal to this Court that he did not
"intend" to kill the victim by choking him and intended only to restrain him but
was perhaps criminally negligent in doing so, we agree with the circuit court that
this bald assertion of Sams's intent, i.e., that he meant no harm to Frazier, is not
singularly dispositive of whether Sams is entitled to an instruction on involuntary
manslaughter. See Smith, 315 S.C. at 550, 446 S.E.2d at 413 (holding a murder
defendant, who was convicted of the lesser-included offense of voluntary
manslaughter, was not entitled to an instruction on involuntary manslaughter where
the only evidence was that the defendant acted intentionally in wielding a knife
during an argument in which he stabbed the victim; this Court stated whether the
defendant "intended" to harm the victim was irrelevant);2 see also State v. Lowe,

2
  We cite Smith for our general observation that a defendant's assertion that he did
not intend to harm the victim does not, by itself, entitle the defendant to an
involuntary manslaughter instruction. While Smith did, as the dissent points out,
involve the use of a dangerous instrumentality, this fact is certainly not uncommon
in death cases, and we disagree that it somehow invalidates the proposition
espoused here, particularly where Smith and the cases footnoted by the dissent
contain no language limiting their application. To find otherwise would mean a
defendant could automatically obtain the instruction merely by making a self-
serving statement as to his intent. Moreover, considering the fact that the
defendant locked his arms tightly around the victim's neck, resulting in death by
318 S.W.3d 812, 820 (Mo. Ct. App. 2010) ("Generally, where the nature of the
defendant's attack on the victim is such that it only supports the inference that he
intended to kill or seriously injure the victim, the fact that the defendant denies an
intention to kill is not sufficient to require an instruction for a lesser degree of the
offense charged because the statements of [the] defendant are so unreasonable and
inconsistent with physical facts and the conduct of the defendant that they do not
support a finding of recklessness." (citing State v. Mason, 272 S.W.3d 257, 261
(Mo. Ct. App. 2010)); State v. Mason, 272 S.W.3d 257, 261 (Mo. Ct. App. 2008)
("Mason's disclaimer of any intent to kill the victim does not, in itself, require an
instruction on involuntary manslaughter.").

       Even if Sams initially intended only to "restrain" Frazier, at some point,
when he maintained a chokehold on him for well over ten minutes, past the point
when the victim had stated he could not breathe and then became limp, Sams's
prolonged and continued hold on the victim's neck, until a responding officer
repeatedly ordered Sams to release his hold, was intentional and the type of
conduct that is highly likely to result in serious injury or death. We believe there is
undoubtedly a distinction to be made between restraining someone, which Sams
arguably did when he pinned Frazier down by lying on top of him, versus
maintaining a prolonged chokehold around someone's neck, which undeniably
carries with it the risk of serious harm within moments. The medical evidence also
indicates the severe nature of the altercation, as there were objective signs of
strangulation present, including bruising to the victim's neck and hemorrhages in
his eyes. Cf. People v. Leach, 939 N.E.2d 537, 549-51 (Ill. App. Ct. 2010)
(rejecting the defendant's assertion "that the evidence at best proved only the lesser
offense of involuntary manslaughter in that he only acted recklessly in choking [his
wife]"; the appellate court noted (1) it was "undisputed that [the] defendant

asphyxiation, we find the current appeal arguably involves a dangerous
instrumentality, as one's hands or arms can, in certain circumstances, be deemed a
dangerous weapon. See, e.g., State v. Bennett, 328 S.C. 251, 262, 493 S.E.2d 845,
851 (1997) (stating "we have held, in the context of murder, that a hand or fist may
be considered a deadly weapon depending on the factual circumstances").
Although the dissent goes on to state "this case is more akin to cases where a
struggle between the defendant and victim led to the unintentional death of the
victim," the dissent itself then cites three cases, all of which involved a dangerous
instrumentality. Thus, we do not believe its contentions in this regard have
credence.
knowingly placed his hands on [his wife's] neck and exerted sufficient force to first
render her unconscious and eventually dead"; (2) that the time frame for the
choking incident, some three minutes, "created a strong probability of death or
great bodily harm" of which the defendant had to be aware; and (3) the probability
of harm was further supported by the medical evidence, which indicated continued
pressure can cause a loss of consciousness within ten to thirty seconds and death
within three to six minutes, and there were objective signs of strangulation,
including trauma to the neck and hemorrhages in both eyes).

       Sams's actions in choking the victim to the point of unconsciousness and
then death ordinarily would be deemed unlawful under South Carolina law in the
absence of self-defense.3 Cf. Bozeman v. State, 307 S.C. 172, 414 S.E.2d 144
(1992) (stating the mere fact that the murder defendant had not aimed the pistol
prior to firing it did not support a charge on the lesser-included offense of
involuntary manslaughter, as firing a gun naturally intends to cause death or bodily
harm, and it also does not fall into the second category of involuntary
manslaughter because the defendant was not engaged in a lawful act; however,
evidence that the victim swung a knife at the defendant immediately prior to the
shooting supported a self-defense charge, which was given by the trial judge).

       In State v. Pickens, 320 S.C. 528, 466 S.E.2d 364 (1996), the defendant was
convicted of voluntary manslaughter, and we rejected his contention that he had
acted lawfully but recklessly in defending himself and therefore was entitled to a
jury charge on involuntary manslaughter. Pickens admittedly shot a gun, but
asserted he had acted recklessly in his self-defense. We noted this case was
distinguishable from those involving self-defense and the failure to charge
voluntary manslaughter because in those cases a jury could "fail to find self-
defense, but could find sufficient legal provocation and heat of passion to conclude
the defendant was guilty of voluntary manslaughter." Id. at 532, 466 S.E.2d at

3
  Although the parties and the Court of Appeals variously estimated Sams
maintained his chokehold on Frazier for "over eight minutes" or "more than ten
minutes," it is undisputed that the last of several 911 calls came in at 4:36 a.m., at
which point Sams had already been lying on top of Frazier with his arms locked
around Frazier's neck for an indeterminate period, and Sams still had Frazier in a
chokehold when the officer arrived at the scene at 4:46 a.m. Thus, the choking
incident lasted well over ten minutes, long enough to cause serious harm, as
recognized by those present at the scene by the fact that they called 911.
366. In Pickens, we concluded that under our definition of involuntary
manslaughter and in view of the facts alleged (the defendant and another person
began shooting in self-defense when they were rushed by a group of people outside
a Waffle House, resulting in two deaths and two others being injured), "the jury
could not find [the defendant] had acted lawfully without finding self-defense." Id.
at 532, 466 S.E.2d at 366-67.

        Similarly, the Court of Appeals recently considered a defendant's assertion
that "the trial court erred by not charging involuntary manslaughter because under
his version of the facts, he unintentionally caused [the victim's] death when he
lawfully but recklessly performed a martial arts move in self-defense." State v.
Scott, 408 S.C. 21, 22, 757 S.E.2d 533, 534 (Ct. App. 2014). The Court of Appeals
found "no basis to conclude Scott acted recklessly in defending himself because
the circumstances Scott alleges to be reckless are the same circumstances that
justified his use of force." Id

      We recognize there is authority for the proposition that "a self-defense
charge and an involuntary manslaughter charge are not mutually exclusive, as long
as there is any evidence to support both charges." State v. Light, 378 S.C. 641,
650, 664 S.E.2d 465, 470 (2008). However, the quintessential situation where
both involuntary manslaughter and self-defense have been justified involved
circumstances, as in Light, where there was evidence of the negligent handling of a
loaded gun or evidence that the defendant and the victim struggled over a weapon.
See id. at 648-49, 664 S.E.2d at 469 (citing case law stating these particular factual
scenarios support submission of both involuntary manslaughter and self-defense to
a jury). Undoubtedly, determining when multiple charges are appropriate turns on
the facts of each case, so there is no bright-line rule that can be universally applied.
Cf. State v. Williams, 400 S.C. 308, 317, 733 S.E.2d 605, 610 (Ct. App. 2012)
("not[ing] even though self-defense and accident charges are often mutually
exclusive, there is evidence in the record to support both charges").

       In Light we concluded charges on involuntary manslaughter and self-defense
were warranted "under the particular facts of the case." Id. at 651, 664 S.E.2d at
470. We found "[a]lthough [the defendant] had inconsistent stories," there was
evidence the defendant was lawfully armed in self-defense where, according to the
defendant, he took a loaded gun from the victim because the victim was
threatening him with it, and there was evidence the defendant recklessly handled
the gun because it fired almost as soon as he took possession of it. Id. at 648, 664
S.E.2d at 468-69. Thus, "the jury [was] entitled to resolve the question of how the
shooting actually occurred." Id. at 651, 664 S.E.2d at 470. In doing so, we
distinguished Pickens, noting in Pickens the defendant had admitted he
intentionally shot his gun, but maintained he did so while acting lawfully but
recklessly in defending himself, so he was not entitled to a charge on involuntary
manslaughter. Id. at 650, 664 S.E.2d at 469-70. Similarly, in the current appeal,
Sams argues that he acted lawfully in self-defense, but that he perhaps acted
excessively and recklessly in doing so. Under the facts presented, we agree with
the circuit court and the Court of Appeals that Sams was not entitled to an
instruction on involuntary manslaughter.

       Sams's argument is tantamount to imperfect self-defense. See 40 C.J.S.
Homicide § 110 (2006) ("Under the 'imperfect self-defense' doctrine, the crime is
reduced from murder to voluntary manslaughter where a defendant had a genuine
but unreasonable fear of imminent peril from the victim, and killed the victim, or
where the slayer, although acting in self-defense, was not himself or herself free
from blame, as where he or she was the aggressor or used excessive force,
although without murderous intent." (footnotes omitted)). Even under that theory,
however, a charge on involuntary manslaughter would not be warranted. In State
v. Herrera, 315 P.3d 343, 352 (N.M. Ct. App. 2013), the court noted that if a jury
found the defendant used excessive force in response to any threat posed by the
victim, it would be appropriate for a jury to find him guilty of voluntary
manslaughter, rather than murder. The court observed that what is sometimes
called "imperfect self-defense" is a misleading term, as it is described as occurring
when a person uses excessive force while otherwise lawfully engaging in self-
defense. Id. The court stated the term is misleading because when a person kills
another while engaging in imperfect self-defense, the killing is not legally justified.
Id. Thus, it is unlawful. Rather, the concept simply presents an issue of mitigating
circumstances that may reduce murder to voluntary manslaughter. Id.

      Heretofore, South Carolina has not expressly adopted the doctrine of
imperfect self-defense. See generally State v. Finley, 277 S.C. 548, 551, 290
S.E.2d 808, 809 (1982) (observing, in a case discussing the elements of self-
defense, that the theory of "imperfect self-defense," which reduces an offense from
murder to voluntary manslaughter, "is not the law in South Carolina").

      In addition, Sams asserts it as a means to entitle him to a charge on
involuntary manslaughter. This Court has previously noted, however, that "[a]
claim of imperfect self-defense . . . has no application to involuntary
manslaughter." Douglas v. State, 332 S.C. 67, 75 n.4, 504 S.E.2d 307, 311 n.4
(1998). Moreover, the view taken in most treatises and jurisdictions that have
discussed the imperfect self-defense doctrine is that it serves to reduce a charge of
murder to voluntary manslaughter (not involuntary manslaughter). Roy Moreland,
The Law of Homicide 93 (1952); 40 C.J.S. Homicide § 110 (2006); see also State v.
Faulkner, 483 A.2d 759 (Md. 1984) (stating self-defense is a complete defense to
either murder or manslaughter that results in the acquittal of the defendant,
whereas imperfect self-defense is not a complete defense, but is instead a factor in
mitigation that reduces murder to voluntary manslaughter).

       Thus, even if this Court were to accept the doctrine of imperfect self-
defense, it is of no consequence to Sams's proceeding as it would, at most, entitle
him to an instruction on voluntary manslaughter, which he already received. See
United States v. Skinner, 667 F.2d 1306, 1209-10 (9th Cir. 1982) (holding a
defendant's assertion that he used excessive force in defending himself could
reduce a charge from murder to voluntary manslaughter, but not to involuntary
manslaughter); State v. Abeyta, 901 P.2d 164, 172-73 (N.M. 1995) (stating the use
of excessive force renders the action unlawful and the action cannot be deemed to
be a lawful act done in an unlawful manner as required by the involuntary
manslaughter statute), abrogated on other grounds by State v. Campos, 921 P.2d
1266 (N.M. 1996); see also State v. Chatman, 336 S.C. 149, 153, 519 S.E.2d 100,
102 (1999) ("Here, appellant was not acting lawfully, since he was engaged in an
assault and battery, unless he was acting in self-defense.").

      Based on the foregoing, we conclude Sams was not entitled to an instruction
on involuntary manslaughter because, as found by the circuit court and the Court
of Appeals, Sams's actions did not fall within the range of conduct constituting
involuntary manslaughter in this state.

      AFFIRMED.

      TOAL, C.J., KITTREDGE and HEARN, JJ., concur. PLEICONES, J.,
dissenting in a separate opinion.
JUSTICE PLEICONES: I respectfully dissent. In my view, the trial court
erred in declining to give a charge on involuntary manslaughter and the Court
of Appeals erred in affirming that decision. I would reverse and remand for a
new trial.
 Involuntary manslaughter is defined as 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. State v. Tucker, 324 S.C. 155, 478 S.E.2d 260
(1996). In determining whether the evidence requires a charge on a lesser
included offense, the facts are viewed in a light most favorable to the
defendant. State v. Byrd, 323 S.C. 319, 321, 474 S.E.2d 430, 431 (1996). A
jury charge must be given if there is any evidence in the record to support the
charge. State v. Tucker, supra.
The majority holds that Sams was not entitled to an involuntary manslaughter
charge because there is no evidence that Frazier's death was unintentional. I
disagree. The majority states that Sams' testimony that he did not intend to
kill Frazier is "not singularly dispositive" of his entitlement to a charge for
involuntary manslaughter in this case. I agree that this statement, standing
alone, does not entitle Sams to such a charge. It is, however, some evidence
of one element of the offense of involuntary manslaughter, that is, that the
victim's death was unintentional. In addition, the circumstances under which
the death occurred are such that the jury could have concluded that it was not
Sams' intention to kill Frazier. Further, in determining the existence of
evidence of intent, I believe we err when we focus on whether the defendant
intended to commit the act which led to the victim's death, rather than on
whether he intended the consequence of his intentional act, that is, the
victim's death. As we have explained in defining involuntary manslaughter,
"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)
(internal citation omitted).
In my opinion, the facts of this case are more akin to those situations where a
struggle between the defendant and the victim led to the unintended death of
the victim. See e.g. State v. Light, 378 S.C. 641, 664 S.E.2d 465 (2008)
(holding that an involuntary manslaughter charge was appropriate where
defendant attempted to take gun from victim, and gun went off immediately
after defendant jerked it away from the victim); Tisdale v. State, 378 S.C.
122, 662 S.E.2d 410 (2008) (holding that an involuntary manslaughter charge
was warranted where defendant and victim fought for gun, and it “went off”
while still in victim's hands). In this case, Sams testified that he never
intended to hurt or kill Frazier, but rather that he sought merely to restrain
him until the police arrived. This is evidence from which a jury could find
the restraint was done with reckless disregard of Frazier's safety. In my
opinion, viewing the evidence in the light most favorable to Sams as we
must, an involuntary manslaughter charge was warranted in this case. State
v. Byrd, supra; State v. Tucker, supra.
Finally, I disagree that the jury could not find that Sams had acted lawfully
without also finding that he acted in self-defense. As we have repeatedly
held, a jury charge on both self-defense and involuntary manslaughter may be
given on the same record.4 While the majority suggests Sams would be
entitled to an involuntary manslaughter charge only under a theory of
imperfect self-defense, I find evidence in this record from which a jury could
find either self-defense or involuntary manslaughter.5


4
   See State v. Crosby, 355 S.C. 47, 584 S.E.2d 110 (2003) (improper to hold that
any evidence of an intentional shooting negates evidence from which any other
inference may be drawn); Casey v. State, 305 S.C. 445, 409 S.E.2d 391 (1991)
(error by trial court in not charging involuntary manslaughter, even though the trial
court charged murder, voluntary manslaughter, accident, and self-defense).
5
 It is true, as the majority states, that this Court in Douglas v. State, 332 S.C. 67,
75, 504 S.E.2d 307, 311 (1998) fn. 4, indicated that a claim of imperfect self-
defense has no application to involuntary manslaughter. Douglas cites McAninch, 
The Criminal Law of South Carolina 163 (3rd Ed. 1996) as authority for this
proposition. In this passage, however, McAninch cites only State v. Finley, 277
For these reasons, I would reverse and remand for a new trial. 





S.C. 548, 290 S.E.2d 808 (1982) as rejecting imperfect self-defense as a means to
reduce a murder to manslaughter. In Finley, the defendant sought only a voluntary
manslaughter charge, not an involuntary manslaughter charge. In my opinion, it is
more accurate to say we have not yet decided whether imperfect self-defense can
support an instruction on involuntary manslaughter as Finley did not address that
issue. 
