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 Supreme Court

The State, Respondent,

v.

James Nichols Padgett, Appellant.

Appeal from Pickens County
G. Edward Welmaker, Circuit Court Judge

Memorandum Opinion No. 2010-MO-017
Heard May 25, 2010 � Filed July 26, 2010��

REVERSED

Katherine Dunbar Landess, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport and Assistant Attorney General Mark R. Farthing, all of Columbia, and Robert Mills Ariail, of Greenville, for Respondent.

PER CURIAM:� Appellant James Nichols Padgett appeals his conviction of leaving the scene of an accident resulting in death.� We reverse.

I.

Appellant was involved in a car accident in which the driver of the other vehicle died.� Immediately following the collision, Appellant called 911, gave his full name and precise location, and informed the dispatcher that he had just been involved in an accident.� Police arrived and found the other driver trapped in her car, but Appellant was not at the scene.�

The following morning at 5:40 a.m., a security guard at a business located near the scene of the accident called 911 to report that Appellant had walked up to the guard shack and stated he had just been in an accident.� The security guard stated Appellant was "scratched up" and dirty, but was not in need of an ambulance.� Appellant was arrested and indicted for leaving the scene of an accident resulting in death.

At trial, Appellant testified that he remembered exiting his car after the collision and trying to open the other driver's car door to help her out of the car, but was unsuccessful.� Appellant did not recall what happened in the hours immediately following the accident.� Appellant testified the next thing he remembered was walking up to the side of the road, recalling that the accident occurred, and walking through the parking lot to the guard shack.� Dr. Price, an expert in brain injuries and post-traumatic amnesia, testified that at the time Appellant made the 911 call, he may have been on the verge of "decompensating," meaning he was "highly upset, losing control."� Dr. Price further opined that the 911 call from the security guard indicated Appellant thought the accident had just occurred and this was consistent with post-traumatic amnesia or dissociative amnesia.� The jury found Appellant guilty of leaving the scene of an accident resulting in death.

II.

During the jury charge conference, Appellant's counsel requested the trial court read verbatim S.C. Code Ann. ��56-5-1210 and 1230 (2007), the statutes under which Appellant was charged.� The trial court denied counsel's request and instead gave its own charge.� In the charge, the trial court indicated the State had to prove four elements in order to convict Appellant of the charge.� Counsel again requested the trial court read the statutes.��

Shortly after deliberations began, the jury sent a note stating "please provide a copy of the law read by the judge when charging the jury at the end of the trial."� The trial court brought the jury in and instructed them to identify "the particular parts of the instruction that I gave you that you'd like read again."� The jury submitted a second note stating "what does the law require you to submit before you may leave an accident scene?"� Appellant's counsel again requested the trial court read the statutes verbatim.� The trial court again declined and recharged the jury.� In the second charge, the trial court indicated statutes under which Appellant was charge required the State to prove six elements in order to convict.��

Appellant argues the trial court's instructions were erroneous.� We agree.� The jury's initial note and the subsequent note asking "what does the law require you to submit before you may leave an accident scene?" indicates that the jury was unsure on the law and was unclear as to the State's burden of proof.� The trial court's first instruction indicated the State must prove four elements, however the second instruction indicated the State was required to prove six elements.� Moreover, Appellant's counsel recognized the potential for confusion and, in response, requested the trial court read the statutes to the jury.�

A jury instruction must be viewed in the context of the overall charge. �See State v. Hicks, 330 S.C. 207, 218, 499 S.E.2d 209, 215 (1998).� While a court is not required to give any particular verbiage, instructions may not confuse or mislead the jury. �State v. Leonard, 292 S.C. 133, 137, 355 S.E.2d 270, 273 (1987).� Indeed, the purpose of instructions is to enlighten the jury and to aid it in arriving at a correct verdict.� Id.� When viewing the initial charge setting forth four elements in conjunction with the jury's notes and the second charge setting forth six elements of the crime, we find the two sets of instructions likely confused the jury.� Furthermore, given the fact that there was not overwhelming evidence of guilt, we cannot say that beyond a reasonable doubt, the error did not contribute to the verdict.[1]� Keaton ex rel. Foster v. Greenville Hosp. Sys., 334 S.C. 488, 498, 514 S.E.2d 570, 575 (1999) (holding that in order to find a confusing jury charge harmless, "we must determine beyond a reasonable doubt that the error complained of did not contribute to the verdict."); see also State v. Belcher, 385 S.C. 597, 611, 685 S.E.2d 802, 809 (2009) (recognizing that erroneous jury instructions are subject to a harmless error analysis).� Therefore, under the particular facts and circumstances of this case, we hold the instructions were erroneous and prejudicial.� We therefore reverse Appellant's conviction and remand for a new trial.

REVERSED AND REMANDED.

TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.

[1]  Appellant additionally seeks reversal on the basis of the solicitor's improper question to Appellant concerning intoxication.� Although the State acknowledges the inappropriateness of this inquiry, we do not reach this issue as a standalone basis to reverse.� We do, however, examine the totality of the evidence in assessing whether there was overwhelming evidence of guilt.� In this regard, guilt is not overwhelming and the clear prejudice resulting from the solicitor's highly improper question concerning intoxication further undermines a finding of harmless error.���