THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Appellant,

William R. Lafferty and Charles Spychala, Respondents.

Appeal From Horry County
Larry B. Hyman, Jr., Circuit Court Judge

Unpublished Opinion No. 2012-UP-114
Heard November 2, 2011 – Filed February 29, 2012

REVERSED AND REMANDED

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney Salley W. Elliott, Assistant Attorney General Joshua Richard Underwood, all of Columbia, for Appellant.

Stuart Mark Axelrod, of Myrtle Beach, for Respondents.

PER CURIAM: This is an appeal by the State of the grant of a new trial to Respondents William R. Lafferty and Charles Spychala on charges of presenting a false insurance claim for payment. We reverse and remand.

Respondents were each indicted on charges of third-degree arson and presenting a false insurance claim for payment. They were tried together on all charges and were represented by the same attorney. The charges arose from the destruction of a boat owned by Lafferty and Lafferty's subsequent attempt to recover from his insurer for the loss. Spychala was listed on Lafferty's insurance policy as a regular operator of the boat and was with Lafferty when firefighters were called to investigate the incident.

The jury acquitted Respondents on the arson charges, but convicted them on the charges of presenting a false insurance claim for payment. Immediately after the verdicts were received, defense counsel moved for a new trial on the false claim charges, arguing convictions on those charges were inconsistent with acquittals on the arson charges. Over the State's objection, the trial judge granted the motion.

The trial judge initially granted the new trial motion from the bench, but later issued a written order in the matter with the following explanation for his ruling:

In the present trial, the only evidence presented by the Attorney General that the Defendants presented a false claim for payment was that they committed arson on their property (a boat) that was the insured property. The Jury has clearly found that the Defendants are not guilty of that arson. Thus, no evidence supported a verdict of "guilty" for Presenting a False Claim.

The State argues the trial judge committed an error of law in granting a new trial on the false claim charges based solely on Respondents' acquittals on the arson charges. We agree.

"The granting or refusal of a motion for a new trial is within the discretion of the trial judge and will not be disturbed absent a clear abuse of discretion." State v. Simmons, 279 S.C. 165, 166, 303 S.E.2d 857, 858 (1983). "Where there is no evidence to support a conviction, an order granting a new trial should be upheld." State v. Smith, 316 S.C. 53, 55, 447 S.E.2d 175, 176 (1993). "However, where there is competent evidence to sustain the jury's verdict, the judge may not substitute his judgment for that of the jury." State v. Prince, 316 S.C. 57, 63, 447 S.E.2d 177, 181 (1993).

In State v. Alexander, 303 S.C. 377, 382-83, 401 S.E.2d 146, 149-50 (1991), the South Carolina Supreme Court formally abolished the rule prohibiting inconsistent verdicts. In support of its ruling, the court referenced United States v. Powell, 469 U.S. 57 (1984), wherein the United States Supreme Court "reasoned that a jury might merely be lenient towards a defendant when it refuses to convict him of all counts." Alexander, 303 S.C. at 383, 401 S.E.2d at 149 (citing Powell, 469 U.S. at 65).

We are mindful that the trial court has the discretion to decide whether an accused is entitled to have a charge retried. Nevertheless, if the appellate court determines the grant of a new trial to an accused was based on an incorrect legal conclusion, reversal of the grant is warranted. See State v. Des Champs, 126 S.C. 416, 421, 120 S.E.2d 491, 493 (1923) (holding the grant of a new trial was based on an erroneous legal conclusion and remanding the matter to the circuit court for sentencing). Here, it is evident from both the colloquy between the trial judge and the State's attorney and the written order granting the new trial motion that the trial judge believed he was required to grant the motion solely because Respondents were not convicted of arson. Because prohibition of inconsistent verdicts is no longer the rule in this State, we hold that the grant of a new trial in this case was based on an error of law. Further, because we find ample evidence in the record that could support convictions on the false claim charges, a new trial on those charges is not warranted in this case.

Therefore, we reverse the grant of a new trial to Lafferty and Spychala on the false claim charges and remand the matter to the trial court for sentencing on those charges.

REVERSED AND REMANDED.

FEW, C.J., and THOMAS and KONDUROS, JJ., concur.