§ 2-31 Mere Presence—accomplice Liability/aiding and Abetting

• Library: South Carolina Requests to Charge - Criminal (SCBar) (2023 Ed.)

§ 2-31 Mere Presence—Accomplice Liability/Aiding and Abetting

To be guilty as an aider or abettor, the participant must have knowledge of the principal's criminal conduct. Mere presence at the scene is not sufficient to establish guilt as an aider or abettor.

The mere presence of a defendant where a crime has occurred or the mere association by a defendant with people who have committed a crime is insufficient proof that the defendant has committed a crime. Evidence that an individual is present at the time a crime is committed is not, in and of itself, sufficient proof that the individual committed a crime.

The mere knowledge that another person is going to commit a crime, even if the defendant is present when the crime is committed, is not sufficient to convict the defendant as a principal. The State must prove beyond a reasonable doubt by competent evidence the theory of the hand of one is the hand of all. To be guilty of a crime, 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. A principal in a crime is one who either actually commits the crime or who is present, aiding, abetting or assisting in the commission of the crime. Presence at the scene of the crime by pre-arrangement to aid, encourage or abet in the perpetration of the crime constitutes guilt as a principal.

When a person does an act in the presence of and with the assistance of another, the act is done by both. Where two or more acting with a common plan or intent are present at the commission of a crime, it does not matter who actually commits the crime, all are guilty. The hand of one is the hand of all. Present means to be sufficiently near to aid and abet and assist in the commission of the crime. Intent is also a necessary element, for there must have been a common design or intent to commit the crime, and the crime must have been committed pursuant to that plan, with the person aiding and abetting by some overt act.

The burden is on the State to prove every element of the crime charged. If you find, after reviewing all the evidence, that the State has proved the defendant was only present at the scene of a crime, and that the State has not proved beyond a reasonable doubt any participation in the crime, then you are required to find the defendant not guilty.

? State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998) (recognizing mere presence is not enough to sustain a conviction); see also Butler v. State, 435 S.C. 96, 97-98, 866 S.E.2d 347, 348 (2021) ("Under the theory the 'hand of one is the hand of all,' when two people join together to commit a crime, and during the commission of that crime one of the two commits another crime, both may be criminally liable...