Gary Moore v. State

THE STATE OF SOUTH CAROLINA In The Court of Appeals Gary Moore, Petitioner, v. State of South Carolina, Respondent. Appellate Case No. 2024-000459 ON WRIT OF CERTIORARI Appeal From Chesterfield County Paul M. Burch, Trial Court Judge Michael S. Holt, Post-Conviction Relief Court Judge Opinion No. 6170 Heard October 7, 2026 – Filed November 12, 2026 REVERSED Senior Appellate Defender Lara Mary Caudy, of Columbia, for Petitioner. Attorney General Alan McCrory Wilson and Assistant Attorney General Brian Hollis Gibbs, both of Columbia, for Respondent. KONDUROS, J.: In this post-conviction relief (PCR) action, Gary Moore (Petitioner) appeals the denial of his PCR application. He contends the PCR court erred in not finding trial counsel was ineffective for failing to request jury instructions that specific intent to kill was an element of attempted murder and for failing to object to the omission of specific intent instructions. We reverse. FACTS/PROCEDURAL HISTORY On July 14, 2015, Petitioner entered McCormick's convenience store to purchase some items. Once inside, Petitioner walked past Charles Wallace. Wallace slapped Petitioner and grabbed him, pulling Petitioner to the ground. A fight ensued. During this altercation, Petitioner stabbed Wallace four times with a knife Petitioner always carried. Steven Hooks, another patron of McCormick's that day, separated the two. After exiting the store, Petitioner called 911, alleging he had been the victim of an assault, a claim he maintained to officers responding at the scene. Upon arriving at the scene, Sergeant Tim Hutchinson with Chesterfield County Sheriff's Office (Sheriff's Office) placed Petitioner in handcuffs and retrieved the knife used in the stabbing. Around this time, EMS arrived and treated Wallace before he was airlifted to a hospital in Charlotte. Wallace suffered a punctured lung and four stab wounds. He underwent surgery and was discharged from the hospital after four or five days. A grand jury indicted Petitioner for attempted murder on December 1, 2015. After an immunity hearing pursuant to the Protection of Persons and Property Act, 1 the circuit court 2 denied immunity and determined the issue of self-defense should be submitted to the jury. The trial took place April 5 through 6, 2016. At trial, Wallace testified that he did not like Petitioner and they had a history of prior incidents with each other. Wallace described a prior incident that involved him chasing Petitioner with an axe handle and breaking his windshield. Wallace testified that on the day of the stabbing, he was inside of McCormick's when Petitioner entered and began "running his mouth." As Petitioner walked by, Wallace grabbed him and slapped him, and they fell to the floor. Wallace testified that Hooks attempted to break up 1 S.C. Code Ann. §§ 16-11-410 to -450 (2015). 2 The Honorable Roger E. Henderson presided over the immunity hearing, but the Honorable Paul M. Burch was the trial judge. the fight but Petitioner "went to stabbing," nicking Hooks in the process. Wallace clarified that the stabbing did not begin while on the ground but began afterwards, when they stood up. Melissa Ann Griffin, the cashier at the time of the incident, testified that Wallace was already bleeding when Hooks stepped in and separated them, and she could not recall if Petitioner attempted to stab Wallace again after standing. She also testified that after exiting the store, Petitioner stated Wallace "got what he deserved." Mary Kay Deese, another employee of McCormick's present that day, testified that she heard a commotion and came around the counter to see Wallace bleeding on the floor as he stood up. She testified that she did not see Petitioner attempt to stab Wallace once they were separated and standing. Hooks testified he saw blood on the floor before he intervened. He further testified he did not see any stabbing and the fight was over once he pulled Petitioner off Wallace. Hooks was nicked at some point but did not know when that happened. James Timothy Perry, who at the time was an investigator with the Sheriff's Office, testified that the store's security video 3 showed Petitioner continued making a thrusting motion after Hooks separated them and then blood became visible. Graig Cornelius Burns, another investigator with the Sheriff's Office, testified the video appeared to show Petitioner grabbing Wallace by the shirt and continuing to thrust after being pulled apart but clarified what Petitioner was holding was unclear. Investigator Burns also testified that Wallace's shirt had eight separate holes in it. After the close of evidence, the trial court charged the jury as follows: I am now going to instruct you as to the statutory law . . . . I charge you from Section 16-3-29 of the Code of Laws of 1976, as amended as to the charge of attempted murder. A person who with intent to kill, attempts to kill another person with malice aforethought either expressed or implied commenced the offense of attempted murder. What is malice? Malice is defined in the law of homicide as a term of art. Malice does not necessarily mean an actual intent to kill. It is a technical term importing 3 The State played a recording of the store's security video at trial, but it was not submitted to the PCR court or provided in the Appendix.  wickedness and excluding just cause or legal excuse. It is something which springs from wickedness, from depravity, from a depraved spirit, from a heart devoid on social duty, and fatally bent on mischief. The words express or inferred malice do not mean[] different kinds of malice but merely the manner in which the only kind of malice known to law may be shown to exist. Malice may be expressed as where previous threats of vengeance or lying [in] wait or other circumstances [show] directly that intent to kill was entertained. Malice may be inferred where though no express intent to kill is proved by direct evidence, it may be inferred from the facts and circumstances which are proved. Malice may be inferred from the willful, deliberate and intentional doing of an unlawful act without just cause [or] legal excuse. Now, as to the word, intent, let me discuss that with you. In order to establish criminal liability, criminal intent is required. For example, the mental state required to be proven by the State for a particular crime might be purpose[,] intent, knowledge, recklessness, or criminal negligence. . . . Criminal intent is a mental state, a conscious wrongdoing. It is up to you to determine what the defendant intended to do based on the circumstances shown to have existed. Criminal intent can arise from action or a failure to act. It may arise from negligence, recklessness, or indifferen[ce] to duty or to the consequences that is considered by the law to be the equivalent of criminal intent. (emphases added). After the jury exited the courtroom, trial counsel raised no objections to any charge given. Later, the jury submitted three questions to the trial court: "What is the attempted murder statute? What qualifies a person to be charged with attempted murder? What is the difference between premeditation [and] intent?" Trial counsel objected to the trial court's proposed answers, stating "I think they should go with the charges you gave to them, that goes with the offense." The trial court recharged the jury in response to its questions: What is the attempted murder statu[t]e? Section 16-3-29 of the Code of Law, State of South Carolina, 1976, as amended, is entitled attempted murder. A person who with intent to kill attempts to kill another person with malice aforethought either expressed or implied commenced [sic] the offense of attempted murder. Elements of that offense as far as definition, the term malice aforethought. Malice aforethought is an essential element of this crime. What is malice? Malice is defined in the law of homicide as a term of art. Malice does not necessarily mean an actual intent to kill. It is a technical term importing wickedness and excluding just cause or legal excuse. It is something which springs from wickedness, from depravity, from a depraved spirit, from a heart devoid of social duty and fatally bent on mischief. The words express or inferred malice do not mean different kinds of malice but merely the manner in which the only kind of malice known to the law may be shown to exist. Now, to point out to you in that definition the word, inferred, means the same thing as implied which in the actual statu[t]e it uses the term, implied. That is to say either by direct evidence or by inference, malice may be expressed as where previous threats of vengeance or lying [in] wait or other circumstances show directly that an[] intent to kill was entertained. Malice may be inferred or implied where though no expressed intent to kill is proved by direct evidence. It may be inferred from the facts and circumstances which are proved. Malice may be inferred from the willful, deliberate, and intentional doing of an unlawful act without just cause or legal excuse. In other words, in its general signification malice means, the doing of a wrongful act intentionally without justification or legal excuse. All right. I apologize because the word aforethought is in the statu[t]e and I did not cover that in the original charge so let me speak with you about that. Aforethought. Aforethought is the time i[n] when evil is conceived.  There is no particular length of time prior to the crime that may be concerned for malice to exist to be malice aforethought. Now, as to intent. Criminal intent is a state of mind that operates jointly with an act or admission in the commission of a crime. Criminal intent is a mental state of conscious wrongdoing. Intent includes those consequences which (a) represent the very purpose for which an act is done; or, (b) are known to be substantially certain to result regardless of desire. What is the difference between premeditation and intent? Well, I just defined intent for you. But nowhere in the statu[t]e does it mention premeditation but, I certainly do not mind giving you a standard definition of premeditated or premeditation since you inquired about the difference. Premeditation is defined as think out or plan. But once again that is not, that term is not in that statu[t]e. Now, as far as that second question, what qualifies a person to be charged with attempted murder? There is no way I can answer that. (emphasis added). Trial counsel's only objection regarded instructing the jury on the definition of premeditation. The jury found Petitioner guilty of attempted murder, and the trial court sentenced him to eighteen years' imprisonment. Petitioner filed an application for PCR alleging various grounds including he was denied effective assistance of counsel for trial counsel's failure to request specific intent instructions and failure to object to the trial court's jury instructions. At Petitioner's PCR hearing, trial counsel testified that in hindsight he could have objected to the trial court's jury instructions regarding intent and admitted his failure to object was not for any specific reason. The PCR court determined trial counsel was not ineffective for failure to request a specific intent instruction, nor ineffective for his failure to object to the court's general intent instruction, because State v. King4 had not yet been decided by the South Carolina Supreme Court. 4 422 S.C. 47, 810 S.E.2d 18 (2017). Further, the PCR court held that even if trial counsel was deficient, the trial court's error was harmless—and thus non-prejudicial—because Petitioner conceded that he intended to stab Wallace. Petitioner made a Rule 59(e), SCRCP, motion to alter or amend the dismissal, which was denied. Petitioner filed a petition for a writ of certiorari on several grounds. This court granted the writ of certiorari on one ground, ineffective assistance of counsel as to the jury instructions. STANDARD OF REVIEW "Our standard of review in PCR cases depends on the specific issue before us. We defer to a PCR court's findings of fact and will uphold them if there is evidence in the record to support them." Smalls v. State, 422 S.C. 174, 180, 810 S.E.2d 836, 839 (2018). "Questions of law are reviewed de novo, and we will reverse the PCR court's decision when it is controlled by an error of law." Sellner v. State, 416 S.C. 606, 610, 787 S.E.2d 525, 527 (2016). LAW/ANALYSIS Petitioner contends the PCR court erred when it determined trial counsel was not ineffective. The trial court's instruction that "malice does not necessarily mean an actual intent to kill" almost immediately followed the reading of the statute's "with intent to kill" language. Petitioner argues these instructions were confusing, and the jury's questions to the trial court emphasized its confusion. Petitioner asserts trial counsel was deficient for failing to object to these instructions given this court's opinion in State v. King.5 Petitioner also argues this deficiency prejudiced him because testimony revealed he and Wallace were engaged in a struggle at the time of the stabbing, and thus a properly instructed jury would have more difficulty convicting Petitioner. We agree. "An ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense." Wiggins v. Smith, 539 U.S. 510, 521 (2003). "[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984). "Even if a defendant shows that particular errors of counsel are unreasonable . . . the defendant must show that they actually had an adverse effect on the defense. It is not enough for the defendant to show that the errors had some conceivable effect 5 State v. King (King I), 412 S.C. 403, 410, 722 S.E.2d 189, 193 (Ct. App. 2015), aff'd as modified, 422 S.C. 47, 810 S.E.2d 18 (2017). on the outcome . . . ." Id. at 693. Essentially, the petitioner must show that "but for counsel's error, there is a reasonable probability the result of the proceedings would have been different." Boan v. State, 388 S.C. 272, 275-76, 695 S.E.2d 850, 852 (2010). "[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697. I. Deficiency "Generally, a trial court is required to charge only the current and correct law of South Carolina." State v. Lee-Grigg, 374 S.C. 388, 405, 649 S.E.2d 41, 50 (Ct. App. 2007). "The law to be charged to the jury is determined by the evidence presented at trial." Id. Section 16-3-29 of the South Carolina Code (2015) defines attempted murder: "A person who, with intent to kill, attempts to kill another person with malice aforethought, either expressed or implied . . . ." This court clarified that the statute requires the State to prove specific intent to kill in King I, 412 S.C. at 410, 722 S.E.2d at 193.6 The supreme court affirmed that holding and expanded on this court's reasoning in 2017. State v. King (King II), 422 S.C. 47, 54-64, 810 S.E.2d 18, 22-27 (2017), aff'g as modified, 412 S.C. 403, 722 S.E.2d 189. Thus, a conviction under the attempted murder statute requires the State to prove three elements: (1) malice, (2) specific intent to kill, and (3) action taken with the purpose of carrying out that intent. State v. Geter, 445 S.C. 139, 147-48, 912 S.E.2d 255, 259 (2025). In an attempted murder case, "[T]he trial judge ha[s] an obligation to instruct the jury on specific intent. . . . Because 'with intent to kill' is not precise in what level of intent is required, . . . it could create confusion for the jury." State v. Perry, 440 S.C. 396, 407, 892 S.E.2d 273, 279 (2023). In the present case, the PCR court determined that trial counsel was not deficient because the supreme court's decision in King II had not been issued at the time of Petitioner's trial. The trial took place in April 2016, a year after this court's decision in King I, in April 2015, which King II later affirmed in 2017. After King 6 Because Petitioner's trial took place a year after this court's decision in King I, we recognize that trial counsel and the trial court did not have the benefit of the supreme court's decision in King II and subsequent cases. However, at the time of trial, King I had held that attempted murder requires a specific intent to kill. I, the current and correct law of this state was that attempted murder was a specific intent crime. 7 Thus, an error of law controlled the PCR court's determination that trial counsel was not deficient because the court failed to recognize King I's holding applied at the time of trial. Additionally, an attorney is expected to be aware of the currently applicable law in a client's case. See Hinton v. Alabama, 571 U.S. 263, 274 (2014) ("An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland."). Trial counsel indicated at the PCR hearing that he did not have a specific reason for not objecting to either the omitted instruction on specific intent or the confusing malice charge. Trial counsel's misapprehension of the holding in King I rendered him unaware of an element of the offense with which Petitioner was charged. Further, trial counsel twice failed to object to the trial court's charge that "malice does not necessarily mean an intent to kill" and also failed to object to the trial court's instruction on general intent. Failing to object in the face of these instructions on a crime that requires the State to prove specific intent to kill, or to request instructions on that element, is deficient performance. See United States v. Freeman, 24 F.4th 320, 326-27, 329 7 The State argues in its brief that no final decision on whether attempted murder required specific intent had been made because the supreme court granted the petition for writ of certiorari in King I a week before trial. However, this court's decision still bound lower courts unless or until the supreme court reversed King I's holding, and the current and correct law at the time of trial was that attempted murder required a specific intent to kill. See Hamby v. Hamby, 315 S.C. 518, 520, 445 S.E.2d 656, 657 (Ct. App. 1994) (holding that a court of appeals decision was applicable in another action even though the supreme court had not yet affirmed that decision); Perry, 440 S.C. at 406-07, 406 n.11, 892 S.E.2d at 278 & n.11 (citing the holding of King regarding specific intent to kill as binding on the trial court even though the relevant trial took place between the issuance of King I and King II); see also In re Kingsmore, 295 B.R. 812, 817 (Bankr. D.S.C. 2002) ("[A] decision by an intermediate appellate court in South Carolina is the law of South Carolina unless that decision is subsequently reversed or overruled."). Thus, even if trial counsel were aware of King I's holding, any belief that the general intent instruction was proper would have been in anticipation of a change in the law after the supreme court's review. However, an attorney is "never required to anticipate or discover changes in the law, or facts which did not exist, at the time of the trial." Thornes v. State, 310 S.C. 306, 309-10, 426 S.E.2d 764, 765 (1993). (4th Cir. 2022) (holding that waiver of a meritorious objection when "counsel was unequivocally wrong on the law" was deficient performance). Accordingly, the PCR court erred in not determining that trial counsel was deficient. II. Prejudice "Prejudice in ineffective assistance of counsel claims is typically analyzed using a harmless error framework." Carrier v. State, 441 S.C. 547, 558, 895 S.E.2d 679, 685 (Ct. App. 2023). "When considering whether an error with respect to a jury instruction was harmless, we must determine beyond a reasonable doubt that the error complained of did not contribute to the verdict." Perry, 440 S.C. at 408, 892 S.E.2d at 279 (quoting State v. Burdette, 427 S.C. 490, 496, 832 S.E.2d 575, 578 (2019)). "Jury instructions must be considered as a whole, and if, as a whole, they are reasonably free from error, isolated portions which might be misleading do not constitute reversible error." State v. Kerr, 330 S.C. 132, 144, 498 S.E.2d 212, 218 (Ct. App. 1998). "[O]ur inquiry is not what the verdict would have been had the jury been given the correct charge, but whether the erroneous charge contributed to the verdict rendered." Id. at 145, 498 S.E.2d at 218. When a jury is recharged in response to an inquiry, an appellate court must infer the jury gave "critical attention" to the recharge. State v. Blassingame, 271 S.C. 44, 46-47, 244 S.E.2d 528, 530 (1978). This court in King I held that an erroneous jury charge instructing that specific intent to kill was not an element of attempted murder was not harmless error because the evidence conflicted as to whether the defendant chased the victim or shot only once during a struggle. 412 S.C. at 417, 772 S.E.2d at 196. The court held that hearsay testimony from a law enforcement officer that the defendant fired three to four shots was erroneously admitted. Id. at 411-16, 772 S.E.2d at 193-96. Considering the evidence presented, the court explained: [The victim's] testimony that he repeatedly pushed King's gun away supports the inference that when King shot [the victim] in the cab, he did so in a struggle and did not intend to kill [the victim]. It is more difficult to imagine, however, that King could have chased [the victim] down  Carlton Street while shooting at him unless he specifically intended to kill . . . . Therefore, we find [the officer's] inadmissible testimony as to the number of shots King fired affected the jury's verdict on attempted murder, and we cannot say that either the admission of the evidence or the erroneous jury charge are harmless beyond a reasonable doubt. Id. at 417, 772 S.E.2d at 196.8 However, our supreme court in Perry affirmed a conviction for attempted murder even though the trial court recharged the jury on intent using general intent language referencing "motive" because clear corroborating evidence of specific intent rendered the erroneous charge harmless. 440 S.C. at 408, 892 S.E.2d at 279. In that case, the defendant was charged with attempted murder for firing a gun at a law enforcement officer while fleeing a traffic stop. Id. at 399-400, 892 S.E.2d at 275. The evidence conflicted as to whether the defendant shot into the air or at the officer. Id. At trial—which also occurred between King I and King II—the jury requested a recharge on attempted murder and asked additional questions about malice and the definition of intent. Id. at 401-02, 402 n.5, 892 S.E.2d at 276 & n.5. In its answer, the trial court mentioned motive and did not clarify the meaning of specific intent. Id. at 407, 892 S.E.2d at 279. The supreme court held that mentioning motive confused general and specific intent and failing to be more precise in defining specific intent was error. Id. However, the court determined the error was harmless because eyewitness testimony that the defendant shot in the officer's direction was sufficient evidence of specific intent to prevent finding that the jury convicted based only on general intent. Id. at 408, 892 S.E.2d at 279. The supreme court in State v. Smith held that a jury charge on "felony attempted murder" was not harmless error because it removed the burden on the State to prove all the elements of attempted murder. 430 S.C. 226, 233, 845 S.E.2d 495, 498 (2020) (per curiam). In that case, rival gang members approached the 8 Although this court did not analyze the prejudicial effect of the erroneous charge alone, the supreme court in King II expanded on this court's specific intent analysis and concluded, "[W]e agree with the Court of Appeals that the trial judge erred in charging the jury that a specific intent to kill is not an element of attempted murder. Further, we agree that this error cannot be deemed harmless." King II, 422 S.C. at 64, 810 S.E.2d at 27 (emphasis added). defendant, and they exchanged insults before the defendant fired at the group, missing them and hitting an uninvolved bystander. Id. at 230-31, 845 S.E.2d at 497. The defendant was indicted for attempted murder and four gun charges. Id. at 231, 845 S.E.2d at 497. At trial, the defendant conceded guilt on two possession-related gun charges, and the State conceded that the evidence was sufficient to charge the jury on self-defense. Id. However, the State also requested the trial court instruct the jury that malice could be inferred when the attempted murder took place during the commission of a felony. Id. at 231-32, 845 S.E.2d at 497. The trial court gave that instruction on implied malice, which the supreme court determined was erroneous. Id. at 232, 845 S.E.2d at 497-98. The supreme court held: Smith twice conceded guilt to the two felon-in- possession charges. By requesting the felony attempted- murder charge after Smith had already conceded guilt to the predicate felonies, the State essentially eliminated its own burden to prove all of the elements of attempted murder beyond a reasonable doubt, specifically that Smith acted with malice aforethought. For a constitutional error of this magnitude, "We need go no further than saying we cannot conclude the error was harmless beyond a reasonable doubt." Id. at 233, 845 S.E.2d at 498 (quoting State v. Belcher, 385 S.C. 597, 611, 685 S.E.2d 802, 809 (2009)). The trial court in this case did not instruct the jury on specific intent but did instruct the jury on malice and general intent. The trial court specifically instructed that the defendant did not need to have an "actual intent to kill" to have malice in the original charge and also in response to the jury's questions. Further, the court read the statute and gave a general criminal intent instruction that included the statement that criminal intent "may arise from negligence, recklessness, or indifferen[ce] to duty or to the consequences that is considered by the law to be the equivalent of criminal intent." At the very least, these instructions confused general intent and the statute's "with intent to kill" element. Taken as a whole, the jury instructions describe general intent, and the jury had the option to convict Petitioner if it found he simply intended to stab defendant with reckless indifference as to the possibility it may have resulted in Wallace's death. Thus, similar to the implied malice instruction in Smith, the trial court's jury instructions essentially eliminated the State's burden to prove Petitioner had a specific intent to kill Wallace when he stabbed him. The State argues—and the PCR court determined—that Petitioner conceded he intended to stab Wallace, and the jury implicitly found his conduct was done with malice. Thus, the State asserts any error in jury instructions was harmless because the jury's verdict shows Petitioner intended to stab Wallace with malice and the specific intent to kill can be inferred.9 See State v. Sutton, 340 SC 393, 397 n.5, 532 S.E.2d 283, 285 n.5 (2000) ("A specific intent to kill may be, and normally is, inferred from the surrounding circumstances, such as the character of the attack, the use of a deadly weapon, and the nature and extent of the victim's injuries."); see also State v. Taylor, 434 S.C. 365, 370, 862 S.E.2d 924, 927 (Ct. App. 2021) ("[N]othing . . . prevents a jury from being charged that it can look at a defendant's actions and imply or infer from those actions that the defendant 'in fact' had the specific intent to kill."). However, attempted murder requires a higher level of mens rea than the malice aforethought the jury implicitly found, see King II, 422 S.C. at 56, 810 S.E.2d at 22 ("[I]t may seem counterintuitive for the attempt of a crime to require a higher level of mens rea than that of the completed crime . . . ."), and the evidence does not clearly indicate a specific intent to kill. Similar to the evidence of a struggle in King, Petitioner's entire case was predicated on the theory that he did not intend to kill Wallace when he stabbed him but acted in self-defense to "remove whatever 9 We note that the PCR court in its order and the State at the PCR hearing and on appeal suggest specific intent to kill is satisfied as long as the act itself is intentional and not "committed out of recklessness or negligence." However, this position conflates two elements of attempted murder: (1) specific intent to kill and (2) action taken for the purpose of carrying out that intent. See Geter, 445 S.C. at 147-48, 912 S.E.2d at 259 (noting these two elements and malice are the three elements of attempted murder). Petitioner's conceding he intended to stab Wallace is dispositive of the latter element only if the State satisfied its burden to prove Petitioner intended to kill Wallace when stabbing him. The State appears to argue any error was harmless because the implicit finding by the jury of a malicious, intentional act is equivalent to specific intent to kill. As previously explained, this construction would essentially eliminate the State's burden to prove the element of specific intent to kill. See King II, 422 S.C. at 56, 810 S.E.2d at 22-23 (noting specific intent to kill is a higher level of mens rea than malice). To the extent the State asserts specific intent to kill can be inferred here, as explained in the following analysis, we disagree. was happening to him and leave the store." The surrounding circumstances revealed at trial support this theory. Petitioner and Wallace had a history of violence and threats between them, Wallace initiated the altercation, Petitioner always carried his knife and did not bring it to the store for the purpose of fighting, and the evidence conflicted as to whether Petitioner stabbed Wallace after the fight separated. Although the jury was not convinced Petitioner's conduct satisfied the elements of self-defense, the jury could have found Petitioner stabbed Wallace intending to force Wallace to release him and not intending to cause death. This case is distinguishable from Perry—in which the supreme court found explicit evidence of specific intent rendered erroneous instructions harmless—because the question for the jury in that case was whether the shot fired was accidental or directed at the pursuing officer. In other words, the issue was largely a factual dispute and not differing theories about the mental state behind the stipulated actions of the defendant. Further, the trial court's instruction in Perry simply mentioned the irrelevant legal principle of motive—a term associated with general intent—whereas the court here instructed the jury on general intent only. In fact, the jury instruction here on malice directly conflicted with the element of specific intent when the jury was told twice that "malice does not necessarily mean an actual intent to kill." Thus, this case is closer to the situation in King in which conflicting evidence was presented as to whether the defendant fired his weapon during a struggle or while chasing the victim, and the element of specific intent to kill was directly contradicted in the jury instruction. Notably, the jury asked to be recharged on the attempted murder statute, asked what qualifies a person to be convicted of attempted murder, and asked for an explanation on the difference between premeditation and intent. Thus, the meaning of attempted murder and intent—and the statement "malice does not necessarily mean an actual intent to kill"—is presumed to have been given "critical attention" by the jury. See Blassingame, 271 S.C. at 46-47, 244 S.E.2d at 530. Given the only specific intent instruction the jury received was the reading of the statute, we cannot say beyond a reasonable doubt that the erroneous instructions did not contribute to the jury's verdict when the statute alone "does not clearly indicate what level of intent the Legislature meant to require." King I, 412 S.C. at 408, 772 S.E.2d at 192. In sum, we cannot say beyond reasonable doubt that the omission of a specific intent charge did not contribute to the verdict. By failing to charge the jury on specific intent to kill, the State's burden of proof was eliminated for an element of attempted murder, and conflicting evidence prevents an inference of specific intent to kill. Thus, the error was not harmless, and we reverse the PCR court's determination that the Petitioner was not prejudiced by the erroneous jury instructions. CONCLUSION The PCR court erred in determining trial counsel's performance was not deficient as to the trial court's incorrect jury instructions on intent for the crime of attempted murder and in determining Petitioner was not prejudiced by that performance. Accordingly, we reverse the PCR court's denial of Petitioner's application for PCR due to ineffective assistance of counsel. REVERSED. THOMAS and CURTIS, JJ., concur.