THE STATE OF SOUTH CAROLINA

SHULER, J.: Willie James Simpson was convicted of voluntary manslaughter and possession of a firearm during the commission of a violent crime, and was sentenced to nine years imprisonment for manslaughter and five years for the weapons charge. Simpson appeals his convictions, arguing the trial court’s instructions to the jury were erroneous. We reverse and remand for a new trial.

On December 27, 1998, Anthony Sullivan arrived at the All Good Club in Laurens County. Willie James Simpson was one of the club’s co-owners and operators. According to witnesses, Sullivan argued with the doorman upon entering the club and then again a few minutes later as he exited. Immediately thereafter, Sullivan retrieved a pistol, returned, and kicked the club’s door in. Apparently looking for someone, Sullivan screamed at the patrons, who took cover. Sullivan eventually went outside and fired the weapon three times in the parking lot.

Four days later, Sullivan appeared at the club again and the doorman refused him entry. A co-owner in the club, Robert James Booker, came out and informed Sullivan he was not welcome on the premises. Simpson appeared and told Sullivan a warrant had been issued for his arrest. When Simpson asked him to leave, Sullivan shouted that he would “come back” and shoot the club up again.

Later that evening, Simpson left the club to put his shotgun away in his pick-up truck. While in the club’s parking lot, Simpson observed Sullivan and Jimmy Lee Lindsay approach the club in Lindsay’s truck. The two drove by, then turned around and drove by again. On the second pass they yelled something at Simpson and Sullivan flashed a gun. Albert Stokes, a member of the club’s security team who was patrolling the lot at the time, suggested that he and Simpson follow the men to see what they wanted.

Simpson and Stokes began following Sullivan and Lindsay, who twice pulled over to the side of the road. After stopping the second time, Lindsay exited the truck to speak with Stokes. Sullivan remained in the passenger seat and Simpson, armed with his shotgun, climbed into Lindsay’s truck and told Sullivan to return to the club. According to Simpson, Sullivan attempted to pull the shotgun away from him. Sullivan then got out and met Simpson at the rear of the truck. They argued, and Sullivan again grabbed the shotgun. As Simpson pulled it away, the gun discharged, fatally wounding Sullivan.

Stokes and Simpson left the scene, though Simpson turned himself in to police a short time later. At that time, he gave a statement recounting the evening’s events. In the statement, Simpson claimed he was unaware Sullivan had been shot and declared he had not intended to kill him.

At trial, Simpson requested jury instructions on the law of involuntary manslaughter and the defenses of accident and self-defense. The trial court denied all three requests to charge. The jury subsequently convicted Simpson of voluntary manslaughter and unlawful possession of a firearm, and was sentenced to nine years for voluntary manslaughter and five years for the weapons charge. This appeal followed.

Simpson contends the trial court erred in combining a general charge on criminal intent, including a definition of criminal negligence, with the jury instructions on murder and voluntary manslaughter. According to Simpson, this conflated charge created confusion as to the requisite mental element required for conviction. We agree.

Immediately prior to defining murder and voluntary manslaughter, the trial court instructed the jury as follows:

The court repeated this portion of the charge when the jury later asked for further instructions on the definitions of murder and voluntary manslaughter. At the same time, the court denied Simpson’s requests for a charge on involuntary manslaughter.

The mens rea [1] required for involuntary manslaughter is defined by statute. Section 16-3-60 specifically states that “[a] person charged with the crime of involuntary manslaughter may be convicted only upon a showing of criminal negligence,” which is defined as “the reckless disregard of the safety of others.” S.C. Code Ann. § 16-3-60 (2003) (emphasis added); see State v. Smith, 315 S.C. 547, 550, 446 S.E.2d 411, 413 (1994) (“‘[T]o constitute involuntary manslaughter, there must be a finding of criminal negligence, statutorily defined as a reckless disregard of the safety of others.’”) (citation omitted). Thus, the trial court clearly instructed the jury on the mental element of involuntary manslaughter.

Whether stated as reckless disregard for others’ safety or criminal negligence, this element “signifies an indifference to the consequences of one’s acts. It denotes a conscious failure to exercise due care or ordinary care or a conscious indifference to the rights and safety of others or a reckless disregard thereof.” State v. Rowell, 326 S.C. 313, 315, 487 S.E.2d 185, 186 (1997).

On the other hand, the reckless conduct giving rise to an inference of malice in depraved or malignant heart murder is of an entirely different magnitude. See State v. Watson, 349 S.C. 372, 376 n.5, 563 S.E.2d 336, 338 n.5 (2002) (“[E]xtreme recklessness can lead to an inference of malice.”) (emphasis added); State v. Mouzon, 231 S.C. 655, 663, 99 S.E.2d 672, 676 (1957) (holding malice may be inferred “‘as when an act which imports danger to another is done so recklessly . . . as to manifest depravity of mind and disregard of human life.’”) (citation omitted).

It is therefore readily apparent that criminal negligence is a lesser mental state than that required to support a conviction for voluntary manslaughter, and by analogy, murder. See William Shepard McAninch & W. Gaston Fairey, The Criminal Law of South Carolina 81-82 (3d ed. 1996) (“Obviously this degree of recklessness [for depraved heart murder] must involve more egregious conduct than th[e] ‘reckless disregard of the safety of others’ which is the statutory definition of the criminal negligence predicate to an involuntary manslaughter prosecution.”). Accordingly, while the trial court correctly stated that a showing of criminal negligence or reckless disregard may establish criminal intent, we believe it was confusing, and therefore erroneous, to combine this definition with those of murder and voluntary manslaughter, both of which require the higher level of culpability, or mens rea, of malice.

Simpson also asserts error in the trial court’s refusal to instruct the jury on the lesser offense of involuntary manslaughter. Again, we agree.

“A trial court should refuse to charge a lesser-included offense only where there is no evidence the defendant committed the lesser rather than the greater offense.” State v. Chatman, 336 S.C. 149, 152, 519 S.E.2d 100, 101 (1999); see State v. Burriss, 334 S.C. 256, 265, 513 S.E.2d 104, 109 (1999) (reiterating that to justify eliminating offense of involuntary manslaughter “it should very clearly appear that there is no evidence whatsoever tending to reduce the crime from murder”) (emphasis in original). In determining whether the evidence presented warrants a particular manslaughter instruction, it must be viewed in a light most favorable to the defendant. State v. Gadsden, 314 S.C. 229, 233, 442 S.E.2d 594, 597 (1994).

Involuntary manslaughter is the unintentional killing of another without malice while one is either: 1) engaged in the commission of some unlawful act not amounting to a felony and not naturally tending to cause death or great bodily harm, or 2) acting lawfully with reckless disregard of the safety of others. Burriss, 334 S.C. at 264-65, 513 S.E.2d at 109. We believe the facts of this case fall within the latter definition of involuntary manslaughter such that Simpson was entitled to have the jury instructed on this offense.

On direct examination, Simpson testified he never intended to shoot Sullivan; to the contrary, he asserted he only wanted to talk with him about not coming back to the club. According to Simpson, he carried the shotgun when he approached Lindsay’s truck because he was afraid Sullivan was “liable to start shooting” — both Simpson and Stokes stated that Stokes observed a 9mm handgun in Sullivan’s waistband. If this testimony is believed, Simpson was acting lawfully if recklessly. See Burriss, 334 S.C. at 260-61, 513 S.E.2d at 107 (stating principles of self-defense may be relied upon in determining whether an accused was acting lawfully in the context of involuntary manslaughter; court noted that in such a case it is the right, not the law, of self-defense that is invoked).

Moreover, Simpson’s testimony confirmed his written statement that the shotgun discharged when Sullivan “grabbed” the barrel and “pulled” it in an attempt to take it from him. These facts, viewed in a light most favorable to Simpson, warranted a charge from the trial court on involuntary manslaughter. See State v. Patrick, 289 S.C. 301, 306, 345 S.E.2d 481, 484 (1986) (finding evidence necessitated charge on involuntary manslaughter where defendant testified armed robbery victim, “apparently thinking [the defendant] was going to shoot him, grabbed the end of the barrel causing [defendant’s] gun to fire”; court held defendant’s testimony “constituted a sufficient ground for submitting the possible verdict of involuntary manslaughter to the jury”); State v. White, 253 S.C. 475, 478, 171 S.E.2d 712, 714 (1969) (stating negligent handling of a loaded gun that results in death may support involuntary manslaughter).

We therefore reverse Simpson’s convictions and remand for a new trial. See Burriss, 334 S.C. at 263, 513 S.E.2d at 108 (“The trial court commits reversible error if it fails to give a requested charge on an issue raised by the evidence.”). [2]

[1] “The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime.” Black’s Law Dictionary 999 (7th ed. 1999).

[2] Simpson’s remaining issue on appeal concerns whether the trial court erred in failing to instruct the jury that voluntary manslaughter is the “intentional” killing of another. Because we reverse, we decline to reach this issue.