In The Court of Appeals

The State,        Respondent,


Freddie Leon Upton,        Appellant.

Appeal From Cherokee County
Gary E. Clary, Circuit Court Judge

Unpublished Opinion No. 2003-UP-734
Submitted October 15, 2003 – Filed December 16, 2003


Andrew J. Johnston, of Spartanburg, for Appellant.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; Harold W. Gowdy, III, of Spartanburg, for Respondent.

PER CURIAM:  Freddie Lee Upton appeals his conviction and sentence for murder, arguing the trial court erred in failing to grant a directed verdict.  We affirm. [1]


Upton was charged with murder following the stabbing death of Don “Booger” Martin.  Viewed in the light most favorable to the State, the evidence established the following.  Martin and his wife, Alice, were friends with Upton’s girlfriend, Dianne Pierce.  Several months before Martin’s death, Upton bought Pierce a car.  Martin told Pierce he could have purchased for her a nicer car at the price Upton paid.  Upton did not care for Martin or the comment and later told Pierce he would cut Martin’s throat. 

On the evening before Martin’s death, Upton threw kitchen knives at a wall while Pierce was in the room on the other side.  Pierce left the next morning but returned later with the Martins to retrieve some clothes.  Upton came out of the home and began an argument with Martin, accusing him of “going with” Pierce.  The two men scuffled and Martin pushed Upton and ran away.  Upton pulled out a kitchen knife and chased Martin.  Martin slipped and fell and Upton jumped on him, cutting and stabbing him with the knife.  Martin suffered a knife wound to his back and a fatal stab wound to his chest.  When police arrived, Upton was back in his home and the knife was in the sink.  Martin had a small pocketknife on his person but it was unopened.  Upton was treated at a local hospital for pain to the forearm and ankle and a fractured nose.

Upton testified in his defense, noting he was disabled from injuries he suffered in an accident in which a car hit him while he was a pedestrian and another auto accident in which he was a passenger.  As a result of these accidents, he has limited use of his right arm.  He claimed Martin had previously intimidated him by sharpening a knife and that when he was called outside on the day in question he took a kitchen knife because he was afraid Martin had a knife with him.  Upton claimed Martin attacked him, knocking him to the ground and stomping on him and that he stabbed Martin while trying to protect himself. 


Upton argues the trial court should have directed a verdict on the charge of murder because the State failed to introduce any evidence of malice aforethought.  We disagree.

In ruling on a motion for a directed verdict, the trial court is concerned with the existence of evidence, not its weight.  State v. McKnight, 352 S.C. 635, 642, 576 S.E.2d 168, 171, cert. denied, 124 S. Ct. 101 (2003).  The case should be submitted to the jury if there is any direct or substantial circumstantial evidence that reasonably tends to prove the defendant’s guilt or from which his guilt may be logically deduced.  State v. Fennell, 340 S.C. 266, 270, 531 S.E.2d 512, 514 (2000).  On review from the denial of a directed verdict, this court must view the evidence in the light most favorable to the State and if the evidence reasonably tends to prove the defendant’s guilt, must determine the motion was properly denied.  Id. 

Murder “is the killing of any person with malice aforethought, either express or implied.”  S.C. Code Ann. § 16-3-10 (2003).  “‘Malice’ is the wrongful intent to injure another and indicates a wicked or depraved spirit intent on doing wrong.”  State v. Kelsey, 331 S.C. 50, 62, 502 S.E.2d 63, 69 (1998).  Malice may be implied from the use of a deadly weapon.  Id.  Although malice must be aforethought, there is no requirement that it exist for any appreciable length of time before the act, but rather it may be conceived at the moment the assault occurs.  State v. Wilds, 355 S.C. 269, 277, 584 S.E.2d 138, 142 (Ct. App. 2003).

Here, there was sufficient evidence that Upton killed Martin with malice aforethought.  First, he had previously threatened to cut Martin’s throat.  More important, however, is his conduct on the day of the stabbing.  After the two men scuffled, Martin pushed Upton and ran away.  Upton responded by chasing and jumping on Martin, cutting and stabbing him with a knife.  Upton’s use of a deadly weapon after chasing down the fleeing Martin constitutes evidence that he killed Martin with a wicked and depraved spirit intent on doing wrong.  We find no error in the court’s decision to submit the charge of murder to the jury.


HUFF, STILWELL, and BEATTY, JJ., concur.

[1]        We decide this case without oral argument pursuant to Rule 215, SCACR.