State v. Devin J. Johnson

           THE STATE OF SOUTH CAROLINA
                In The Supreme Court

   The State, Petitioner,

   v.

   Devin Jamel Johnson, Respondent.

   Appellate Case No. 2023-000131



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


               Appeal from Charleston County
          R. Markley Dennis, Jr., Circuit Court Judge


                    Opinion No. 28238
          Heard May 2, 2024 – Filed October 9, 2024


                            REVERSED


   Attorney General Alan McCrory Wilson, Deputy Attorney
   General Donald J. Zelenka, Senior Assistant Deputy
   Attorney General Melody Jane Brown, Senior Assistant
   Attorney General William Edgar Salter, III, and Assistant
   Attorney General William Joseph Maye, all of Columbia;
   and Solicitor Scarlett Anne Wilson, of Charleston, for
   Petitioner.

   Appellate Defender Breen Richard Stevens, of Columbia,
   for Respondent.
JUSTICE FEW: Today we confront again the question whether a trial court should
instruct the jury on the law of accomplice liability in a murder case when the State's
evidence is not clear as to whether the defendant personally shot the victim, or
another person fired the fatal shot pursuant to a mutual plan or agreement. We
recently addressed the same question in State v. Campbell, 443 S.C. 182, 904 S.E.2d
441 (2024); State v. Sellers, 442 S.C. 140, 898 S.E.2d 116 (2024); State v.
Washington, 431 S.C. 394, 848 S.E.2d 779 (2020); and State v. Harry, 420 S.C. 290,
803 S.E.2d 272 (2017). We hold the trial court was correct to charge accomplice
liability in this case. We reverse the court of appeals.

      I.     Facts and Procedural History

Devin Jamel Johnson was convicted for the murder of Akeem Smalls. At trial,1 a
witness testified Smalls stole $1000 worth of marijuana from Johnson in early June
2011. Smalls repaid part of the debt but, as of June 8, still owed Johnson—
ironically—$420. 2 Smalls was dating Johnson's sister Sharmaine and was at her

1
  This case has been tried three times. In the first trial, the jury found Johnson guilty
of murder after the trial court initially refused to instruct the jury on accomplice
liability but then changed its mind after the jury asked during its deliberations, "[i]f
the other individual pulled the trigger, can the defendant still be guilty?" State v.
Johnson, 418 S.C. 587, 592, 795 S.E.2d 171, 173 (Ct. App. 2016) (alteration in
original). The court of appeals reversed the conviction, holding "the trial court's
assurance that it would not instruct the jury on [accomplice liability] . . . [and] the
court's subsequent reversal of its earlier ruling . . . rendered the trial fundamentally
unfair." 418 S.C. at 590, 795 S.E.2d at 173. This Court denied the State's petition
for a writ of certiorari to review the court of appeals' 2016 decision. A second trial
ended in a mistrial for reasons not reflected in the record before us. In the third trial,
the trial court instructed the jury on accomplice liability and the jury convicted
Johnson of murder a second time. The court of appeals again reversed, finding the
trial court "erred in giving the accomplice liability jury charge." State v. Johnson,
438 S.C. 110, 128, 882 S.E.2d 190, 199 (Ct. App. 2022). This time we granted the
State's petition for a writ of certiorari to review the court of appeals' 2022 decision.

2
  The Urban Dictionary—a crowdsourced online dictionary for slang words and
phrases—contains multiple user-submitted definitions of the term "420." According
to one definition,

             [T]he term 420 originated at San Rafael High School
             [CA], in 1971, among a group of about a dozen pot-
apartment in Charleston late that night. Surveillance video from the apartment
complex showed that at approximately 10:15 p.m., a blue 2008 Toyota Camry with
a missing hubcap and a unique license plate drove into the parking lot and backed
into a parking space. The video shows two men getting out of the car at 10:17 and
hurriedly walking together into a breezeway leading to Sharmaine's building. Two
minutes later, the video shows the same two men coming out of the breezeway,
hurrying back to the car, and quickly driving off. Moments after that, the video
shows Smalls running out of the breezeway and entering another building. Smalls
had been shot, and he later died from a gunshot wound. After denying during four
hours of questioning that he was the driver of the Camry, and claiming he was in
Orangeburg that night and not in Charleston, Johnson eventually admitted he was
the driver of the Camry shown in the surveillance video. Johnson claimed the
passenger in the Camry was a man named "Creep." Creep has never been identified.

The State presented extensive evidence at trial to corroborate Johnson's admission
and demonstrate his involvement in the murder. The same witness who testified
Smalls stole $1000 worth of marijuana from Johnson testified Johnson "was looking
for" Smalls. Police found an unfired 9mm FC Luger bullet cartridge—the same type
of bullet that killed Smalls—in Sharmaine's apartment with Johnson's fingerprint on
it. Police found Johnson's fingerprints inside the Camry, which belonged to
Johnson's girlfriend. An analysis of cell-site location information taken from
Johnson's cell phone records showed that, though Johnson was in the Summerville




            smoking wiseacres who called themselves the Waldos
            . . . . The term was shorthand for the time of day the group
            would meet, at the campus statue of Louis Pasteur, to
            smoke pot. Intent on developing their own discreet
            language, they made 420 code for a time to get high, and
            its use spread among members of an entire generation.

420, Urban Dictionary, https://www.urbandictionary.com/define.php?term=420
(last visited Aug. 8, 2024).

The Urban Dictionary permits its readers to vote whether they approve or disapprove
of the various definitions. This definition of 420 has received 36,101 "thumbs up"
votes, three times as many as any other definition. Id.
area earlier in the day, he was in Charleston in the vicinity of the murder at the time
it occurred. 3

Sergeant Craig Kosarko testified Johnson's cell phone records also showed he
engaged in a text message conversation on June 8 with a man named Terry Stevens
in which they initially exchanged messages about what they were doing that day and
the possibility of meeting up after Stevens got off work. Around 12:30 p.m., Johnson
texted Stevens he needed help with something but he did not say what. At 4:37,
Johnson texted Stevens, "Ay I go wet dude ass up da night." Numerous witnesses
—from law enforcement officers to street-level drug dealers and users—testified that
to "wet up" a person means to shoot them or otherwise make them bleed because
"their clothes get wet from the blood." 4

Sergeant Kosarko testified Johnson texted Stevens at 4:39, "Im bout dat 5 wa time u
get off" and at 4:44, "Yea i go take u bac to da chuck." Kosarko then explained "da
chuck" means "Charleston," where Sharmaine's apartment was located. At 8:33,
Johnson texted Stevens, "Jus bring yo ass down here," and at 8:59, "I need u when
u go b hm?" Kosarko testified "the last thing Devin Johnson texted to Terry Stevens
on June 8" was at 9:34, when Johnson wrote, "I cnt wait on u i gotta handle my bizz."
Forty-one minutes later, Johnson and the unknown "Creep"—whom nobody
suspects was Stevens—drove into the parking lot at Sharmaine's apartment.

Johnson's cell phone records also showed that between 9:01 and 10:02 that night he
made ten phone calls to Stevens, Sharmaine, and his mother. In two of those calls—
both around 9:30—he called Sharmaine but blocked her from being able to see who
was calling. That was four minutes before he texted Stevens saying he could not
wait and said "i gotta handle my bizz." Between 10:02 and 10:35 he made or

3
  See State v. Warner, 436 S.C. 395, 398 n.1, 872 S.E.2d 638, 639 n.1 (2022)
(explaining that cell phones "tap into the wireless network several times a minute"
and that contact "generates a time-stamped record known as cell-site location
information" that can show the location of the phone) (quoting Carpenter v. United
States, 585 U.S. 296, 300-01, 138 S. Ct. 2206, 2211, 201 L. Ed. 2d 507, 515 (2018)).
4
  The phrase "wet up" is defined in the Urban Dictionary as, "To shoot or (sometimes
stab) a person several times, usually in an attempt to murder them. Called 'wet up'
because there is enough blood to soak their clothes, leaving them 'wet'." wet up,
Urban Dictionary, https://www.urbandictionary.com/define.php?term=wet%20up
(last visited Aug. 8, 2024).
received no calls. The murder took place at 10:18. Sharmaine called Johnson at
10:35, and between then and 11:40, Johnson made or received eleven other calls to
or from Stevens, Sharmaine, his mother, and others. His cell-site location
information showed he returned to Summerville shortly after the murder occurred.

The State indicted Johnson for murder and possession of a weapon during the
commission of a violent crime. The jury found him guilty of murder but not guilty
of possession of a weapon. The court of appeals reversed the murder conviction
because it found "the State presented no evidence Johnson acted in concert with
another" and "no evidence was presented of Creep being the shooter." State v.
Johnson, 438 S.C. 110, 124, 129, 882 S.E.2d 190, 197, 200 (Ct. App. 2022). Thus,
the court of appeals held, the trial court erred by instructing the jury on the law of
accomplice liability. Id. We disagree with the court of appeals.

      II.    Accomplice Liability

The State presented convincing evidence to support a finding that Johnson murdered
Smalls. A witness testified Smalls stole $1,000 of marijuana from Johnson and
Johnson was "looking for" Smalls. Johnson's text conversation with Stevens shows
he spent much of the day on June 8 attempting to get Stevens to help him murder
Smalls. The jury could infer that when Johnson blocked his number to make the
9:30 calls to Sharmaine he was calling to find out if Smalls was at her apartment.
His 9:34 text to Stevens indicates his intention to proceed with his plan without
Stevens. Johnson admitted he was driving the Camry that showed up at Sharmaine's
apartment at 10:15 with an unknown person in the passenger seat. Police found an
unfired bullet cartridge—the same type of bullet that killed Smalls—in Sharmaine's
apartment with Johnson's fingerprint on it.

These facts make out an unassailable case for murder—with one exception: the State
could not conclusively prove it was Johnson who pulled the trigger to shoot and kill
Smalls. The State argues that under the theory of accomplice liability, however, it
does not matter. We agree.

We begin by stressing that the question before us is not whether Creep can be guilty
as an accomplice if Johnson shot Smalls, but whether Johnson can be guilty as an
accomplice if Creep shot Smalls. If Johnson was the shooter, he was clearly guilty
of murder as the principal and there is no need for any discussion of accomplice
liability. The accomplice liability question arises only on the possibility that Creep
was the shooter instead of Johnson. Thus, the narrow question before us is whether
a reasonable inference could be drawn from the evidence that Creep shot Smalls
pursuant to a plan or agreement with Johnson. We hold the evidence reasonably
supports that inference.

As we stated in Sellers, "Ordinarily, the State convicts a defendant of a crime by
proving that he personally committed the criminal act." 442 S.C. at 148, 898 S.E.2d
at 120. The law of accomplice liability provides, however, that a person may be
guilty of a crime even though he did not personally commit the criminal act. See
State v. Crowe, 258 S.C. 258, 265, 188 S.E.2d 379, 382 (1972) (holding a defendant
who did not shoot the victim but was acting in concert with the shooter was "as guilty
as the one who committed the fatal act"). In a murder case, for example, if two
people plan or agree to commit the murder, and both of them are present at the scene
of the crime, but only one of them actually shoots and kills the victim, both
participants in the plan or agreement are nevertheless guilty of the murder. State v.
Langley, 334 S.C. 643, 648-49, 515 S.E.2d 98, 100-01 (1999). Thus, in a murder
case involving a gunshot, the trial court should charge the law of accomplice liability
when there is any evidence (1) the defendant had a mutual plan or agreement with
another person to commit the murder, and (2) the other person in the mutual plan or
agreement fired the fatal shot. See Washington, 431 S.C. at 407, 848 S.E.2d at 786
(holding it was error to give an accomplice liability charge when—though there was
evidence the defendant had a mutual plan with another person and evidence that
another person fired the fatal shot, there was no evidence the other person who might
have fired the shot was part of the mutual plan); Barber v. State, 393 S.C. 232, 236-
37, 712 S.E.2d 436, 439 (2011) ("[T]he question is whether there is any evidence
that another co-conspirator was the shooter and Barber was acting with him when
the [crime] took place."). 5 In this case there is evidence of a mutual plan or
agreement and that Creep fired the fatal shot pursuant to that plan or agreement.

5
  This case is different from Washington, Barber, Sellers, and Harry in that those
cases involved an alleged mutual plan or agreement to commit a crime other than
murder, and the State claimed one participant in the plan killed the victim during the
commission of the other crime. This case is like Langley and Crowe in that the
State's alleged mutual plan or agreement was to commit the murder itself. The
difference does not matter, however, because the accomplice liability theory is
almost the same in both situations. The only difference between the two situations—
not applicable in this case—is that when the plan or agreement is to commit a crime
other than murder, the State must prove the murder "was a natural and probable
consequence of their common plan to commit the initial crime." Butler v. State, 435
S.C. 96, 97-98, 866 S.E.2d 347, 348 (2021) (citing Harry, 420 S.C. at 299, 803
S.E.2d at 276).
First, there is evidence Johnson had a plan or agreement with Creep to murder
Smalls. The evidence to support the agreement begins with the testimony that
Johnson was angry with Smalls and looking for him. Johnson told Stevens he
planned to "wet up" Smalls, which the evidence indicates means Johnson planned to
shoot and kill Smalls. Johnson clearly did not want to murder Smalls by himself, as
indicated by his repeated attempts to recruit Stevens to be his accomplice. Despite
Stevens's refusal, however, the evidence clearly indicates Johnson held to his plan,
as demonstrated by his text message to Stevens, "I cnt wait on u i gotta handle my
bizz." Forty-one minutes later, Johnson and Creep arrived together in the parking
lot at Sharmaine's apartment. They sat in the car for two minutes—plenty of time to
finalize their plan—then ran into Sharmaine's apartment, and two minutes later, they
returned to the car together and sped off. All of this evidence clearly supports an
inference that Johnson and Creep carried out their nefarious escapade by mutual plan
or agreement. While the evidence of their mutual plan or agreement is all
circumstantial, it is a classic accomplice liability scenario. See Campbell, 443 S.C.
at 193, 904 S.E.2d at 446 ("Accomplice liability can be proven by circumstantial
evidence.").

Second, there is evidence Creep was the shooter because the evidence conclusively
indicates either Johnson or Creep fired the shot that killed Smalls. The lack of
evidence of which one did it, in this unique case, is evidence that each of them did
it. The two arrived together after Johnson failed to recruit Stevens to join him in
murdering Smalls. Two minutes after the two entered the breezeway, they quickly
ran back to the Camry and drove off. If it was not Johnson, it was clearly Creep,
and visa versa.

This takes us back to whether there is evidence of a mutual plan or agreement. On
one hand, if Johnson was the shooter, it makes some sense to conclude that Creep
knew nothing about what Johnson planned to do. On the other hand, however, if
Creep was the shooter, the inference that they acted in concert is unmistakable. See
Campbell, 443 S.C. at 195, 904 S.E.2d at 447 (addressing a similarly "remarkable"
coincidence of facts in that case and stating, "We simply cannot ignore evidence of
the arrival of two men outside the same apartment building at the same moment
before dawn, both armed with rifles and firing into the same apartment"). As in
Campbell, the "remarkable fact" that Johnson spent the day planning his murder of
Smalls and then the person with him pulls the trigger to accomplish the crime "is
undeniable circumstantial evidence of two people acting as accomplices."
Campbell, 443 S.C. at 194-95, 904 S.E.2d at 447 (internal quotation mark omitted).
Thus, we hold the evidence supported the trial court's decision to charge accomplice
liability.

As a final point, the State argues we need to clear up a statement this Court made in
Barber that "an alternate theory of liability may only be charged when the evidence
is equivocal on some integral fact." 393 S.C. at 236, 712 S.E.2d at 439 (emphasis
added). We agree our courts are misinterpreting the word "equivocal," but there is
nothing wrong with Barber. In Sellers, we explained "three points" on which
difficulty may arise for a trial court deciding whether to instruct the jury that a person
who did not commit the act of murder may nevertheless be guilty under an
accomplice liability theory. 442 S.C. at 148-50, 898 S.E.2d at 120-21. "The third
[Sellers] point requires the trial court to determine whether there is evidence the
defendant fired the fatal shot and evidence the person with whom the defendant had
a mutual plan or agreement is the person who fired the fatal shot." Id. As we
explained in Sellers, "Barber is the classic example of [the] third [Sellers point]
because there was evidence the defendant fired the shot, but the question was
whether there was also evidence the other person fired the shot." Sellers, 442 S.C.
at 150, 898 S.E.2d at 121.

The readers of Barber, however, are making too much of the word "equivocal."
First, the Barber statement applies only to the question actually addressed in Barber,
which is the third Sellers point. The idea of "equivocal" evidence has no application
when a trial court is considering the first two Sellers points, "(1) whether there was
a mutual plan or agreement, [or] (2) whether the person who might have fired the
fatal shot was part of that plan or agreement." 442 S.C. at 148-49, 898 S.E.2d at
121. As to the third Sellers point, "By stating the evidence must be 'equivocal,' [the
Barber Court] simply meant the evidence must support both alternative theories as
to which person was the shooter." Sellers, 442 S.C. at 150, 898 S.E.2d at 121; see
id. ("If all the evidence indicates the defendant was the only shooter, the [accomplice
liability] theory must not be charged."). Under Barber, therefore, as explained with
the third point of Sellers, there must be some evidence to support a finding the
defendant fired the shot, but there must also be some evidence to support a finding
the accomplice fired the shot.6 Here, as we have explained, there is evidence of both
things.

6
 In Sellers and Barber, the State pursued alternative theories of the defendant's guilt
for murder. The State's primary theory was based on evidence the defendant
personally fired the fatal shot (Barber) or administered the fatal blow (Sellers). The
alternative theory was the defendant's accomplice killed the victim. The question in
both cases was whether there was evidence to support the alternative theory of
Just as with Barber, the readers of Sellers should not make too much of the "three
points." In both instances, we were attempting to explain our ruling in that unique
case. While we believe both the "equivocal" point from Barber and the "three
points" from Sellers are helpful in analyzing all situations in which the issue is
whether a trial court should instruct the jury on accomplice liability, each case is
different and must be analyzed on its own facts. We were not in either Barber or
Sellers attempting to handcuff trial and appellate courts or otherwise change the law.

      III.   Conclusion

We hold the trial court was correct to charge accomplice liability. We reverse the
court of appeals and reinstate Johnson's conviction for murder.

REVERSED.

KITTREDGE, C.J., and JAMES, J., concur. HILL, J., dissenting in a separate
opinion in which Acting Justice Donald W. Beatty, concurs.




accomplice liability. Thus, when we made the quoted statement in Barber, and when
we identified the "third point" in Sellers, we acknowledged the existence of evidence
the defendant personally killed the victim, and were addressing only whether there
was also evidence the accomplice was the person who killed the victim. See Barber,
393 S.C. at 236, 712 S.E.2d at 439 ("We find the sum of the evidence presented at
trial . . . was equivocal as to who was the shooter."); Sellers, 442 S.C. at 153, 898
S.E.2d at 123 (reciting evidence that "clearly supports an inference it was [the
accomplice] who delivered the final or fatal blows"). In both cases, therefore, we
found the accomplice liability jury instruction was appropriate because there was
evidence of both things. There are cases, however, in which the Barber "equivocal"
statement and the "third point" of Sellers do not apply at all, such as where the State
proceeds only on the theory that the defendant's accomplice fired the fatal shot. See
Sellers, 442 S.C. at 148, 898 S.E.2d at 120 ("In cases where the evidence is clear the
other person—not the defendant—fired the fatal shot, the [accomplice liability
theory] clearly applies . . . .").
HILL, J., dissenting:

With great respect for the majority, I dissent. I agree with the majority that there
was ample evidence Johnson murdered Victim and that he attempted to recruit
Stevens as an accomplice to help him commit the murder. However, I dissent
because I do not believe there was evidence that Creep and Johnson entered into a
mutual plan or agreement to murder Victim or that Creep shot Victim. I would
therefore hold there was no evidence to support the accomplice liability charge in
this case.

The only evidence of Creep's involvement was Johnson's statement to police that he
went to the Georgetown Apartments with Creep and the surveillance video of
Johnson and Creep arriving at the apartments minutes before the shooting, leaving
the car, and then returning to the car after the murder. Creep's mere presence at the
apartment with Johnson at the time of the murder is not enough evidence to allow a
jury to find Creep was Johnson's accomplice. See State v. Reid, 408 S.C. 461, 472–
73, 758 S.E.2d 904, 904 (2014) ("A person must personally commit the crime or be
present at the scene of the crime and intentionally, or through a common design, aid,
abet, or assist in the commission of that crime through some overt act to be guilty
under a theory of accomplice liability. Accordingly, proof of mere presence is
insufficient, and the State must present evidence the participant knew of the
principal's criminal conduct."); see also State v. Scott, 224 S.E.2d 185, 190 (N.C.
1976) (providing a person's "mere presence plus friendship" with the defendant is
not "sufficient evidence for a jury to convict upon an aiding and abetting theory";
instead, "the friendly bystander [must h]ave knowledge that his presence will be
regarded by the perpetrator as encouragement" to commit the crime); State v. Irby,
423 S.W.2d 800, 803 (Mo. 1968) ("Presence of the accused immediately before the
commission of a felony is evidence 'to be considered in determining whether he was
guilty of aiding and abetting, but in order to aid and abet another in the commission
of a crime something more than mere presence must be shown. It is necessary that
the accused 'associate himself with the venture' in some fashion; that some form of
affirmative participation be shown—participation in the crime as something that he
wished to bring about; that he sought by his action to make it succeed; that he
'consciously shared' in the criminal act." (internal citations omitted)).

As this case demonstrates, it is no surprise that in dealing with accomplice liability,
"courts have experienced considerable difficulty in cases where the defendant was
present at the time of the crime and the circumstances of his presence suggest that
he might be there pursuant to a prior agreement to give aid if needed." 2 Wayne R.
LaFave, Substantive Criminal Law § 13.2(a) (3d ed. 2023). The courts' struggle to
define the proper limits of accomplice liability "has led exasperated commentators
to describe the law of accomplice liability as 'vexing,' 'a disgrace,' 'extraordinarily
difficult,' a 'Gordian knot,' and a scene of 'chaos.'" Charles F. Capps, Rethinking
Accomplice Liability, 56 Ariz. St. L.J. 1, 3 (2024) (internal citations and footnotes
omitted). The difficulty is compounded in this case because this appeal concerns the
propriety of a jury charge rather than the review of a denial of the defendant's
directed verdict motion. The evidence presented by the State easily satisfies the
directed verdict standard as to murder; it does not support a jury charge on
accomplice liability.

As the majority emphasizes, there is abundant evidence Johnson unsuccessfully
attempted to get Stevens to be his accomplice. No similar evidence exists as to
Creep.

The majority concludes the evidence proves there was a mutual plan or agreement
because "if Creep was the shooter, the inference that" he and Johnson "acted in
concert is unmistakable." No evidence shows that Creep was the one who shot
Victim or that he was even armed the night of Victim's murder. The lack of evidence
as to who shot Victim is not evidence Creep shot Victim. At least in the context
here, the absence of evidence is not evidence. This is akin to saying a theory must
be true because there is no evidence proving that it is false. Like the majority, I
agree that "if Johnson was the shooter, it makes sense to conclude that Creep knew
nothing about what Johnson planned to do." But there is no evidence Creep shot
Victim, or otherwise actively participated in the shooting. We are therefore allowing
the jury to roll the dice and gamble that Creep and Johnson had a mutual plan or
agreement to murder Victim.

It is true that proof of the mutual plan necessary to justify an accomplice liability
charge may be, and often is, highly circumstantial. Accomplices do not tend to
memorialize their criminal schemes in writing. But there still must be some evidence
suggesting the plan existed. To be sure, this evidence may consist of inferences.
Coincidences, though, do not always produce sound inferences. At least in my view,
it is not logically sound to infer that an event was caused by a plan between X and
Y simply because the event occurred when X and Y were together. This should not
be used as a substitute or short cut to prove the existence of a plan. That would be
the end of mere presence and the beginning of a dragnet approach to accomplice
liability. In my view, the majority opinion as well as the decision in State v.
Campbell, 443 S.C. 182, 904 S.E.2d 441 (2024), represent a departure from Reid
and other accomplice liability precedent.
There is some relationship between the law of accomplice liability and the doctrine
of third-party guilt. Under the third-party guilt doctrine, the evidence that a criminal
defendant may elicit to show another person committed the crime is "limited to such
facts as are inconsistent with his own guilt, and to such facts as raise a reasonable
inference or presumption as to his own innocence[.]" State v. Gregory, 198 S.C. 98,
104, 16 S.E.2d 532, 534 (1941). Therefore, we have held evidence that does nothing
but "cast a bare suspicion upon another, or . . . raise a conjectural inference as to the
commission of the crime by another, is not admissible." Id; see also Holmes v. South
Carolina, 547 U.S. 319, 328–30 (2006).

With today's decision, a curious asymmetry now exists in our law. The State is
allowed to put a defendant on trial as a principal, elicit evidence that someone else
was present at the scene, and argue the defendant is guilty as an accomplice if there
is even a "bare suspicion" or "conjectural inference" that the other person could have
committed the crime. This suspicion, in turn, is enough to permit the jury to find a
mutual plan was in place. Yet, the third-party guilt doctrine would bar a defendant
from admitting the same type of evidence to suggest another person committed the
crime. See Holmes, 547 U.S. at 330 (the point behind the third-party guilt rule is to
"exclud[e] evidence that has only a very weak logical connection to the central
issues" of the case).

In sum, evidence of a plan or agreement to commit a crime is needed to entitle the
State to an accomplice liability jury charge. That evidence was not present in this
case. See, e.g., Jackson v. State, 897 S.E.2d 785, 798 (Ga. 2024) (affirming
defendant's conviction of battery under accomplice liability theory because although
the evidence was unclear whether the defendant or another person struck victim
causing him to fall to the ground, there was also evidence defendant later joined in
further attacking and shooting the victim; therefore, there was sufficient evidence
from which the jury could infer more than defendant's mere presence). I would
therefore affirm the court of appeals' finding that the trial court abused its discretion
in charging the jury on accomplice liability.

Acting Justice Donald W. Beatty, concurs.