Full Opinion

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 Court of Appeals The State, Respondent, v. Stephen D. O'Hara, Appellant. Appellate Case No. 2024-000097 Appeal From Horry County B. Alex Hyman, Circuit Court Judge Benjamin Culbertson, Circuit Court Judge Unpublished Opinion No. 2026-UP-470 Submitted October 1, 2026 – Filed November 12, 2026 AFFIRMED IN PART AND VACATED IN PART Senior Appellate Defender Kathrine Haggard Hudgins, of Columbia, for Appellant. Attorney General Alan McCrory Wilson and Assistant Attorney General William Joseph Maye, both of Columbia, for Respondent. PER CURIAM: Stephen D. O'Hara appeals his convictions for murder, possession of a weapon during the commission of a violent crime, and pointing and presenting a firearm and his concurrent sentences of forty-five years' imprisonment for murder and five years' imprisonment for pointing and presenting a firearm, and consecutive sentence of five years' imprisonment for the weapon charge. On appeal, O'Hara argues the trial court erred in (1) admitting evidence of his motorcycle-club clothing and a redacted 911 call because they constituted improper character evidence and were highly prejudicial and (2) permitting the State to amend the pointing and presenting indictment by substituting a different victim. We affirm in part and vacate in part pursuant to Rule 220(b), SCACR. 1. We hold the trial court did not abuse its discretion in admitting evidence of the clothing O'Hara was wearing on the night of the incident. See State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006) ("The admission of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion."); id. ("An abuse of discretion occurs when the conclusions of the trial court either lack evidentiary support or are controlled by an error of law."). The court prohibited testimony identifying the Red Devils as a gang or establishing O'Hara's membership, and witnesses described O'Hara's attire without connecting the organization to criminal activity. In this context, the descriptions and depictions of O'Hara's clothing did not convey criminal conduct or bad character. Cf. Johnson v. State, 433 S.C. 550, 555-56, 860 S.E.2d 696, 699-700 (Ct. App. 2021) (finding testimony about the defendant's gang affiliation constituted prior bad act evidence when experts and gang members described the gang's structure and the defendant's leadership); State v. Robinson, 438 S.C. 421, 428-37, 882 S.E.2d 883, 887-92 (Ct. App. 2023) (finding testimony about the defendant's gang affiliation constituted prior bad act evidence when the State elicited testimony about a gang war, the defendant's affiliation with a gang, and two unconnected murders in the defendant's neighborhood). Further, the trial court acted within its discretion in determining the evidence was relevant and that its probative value was not substantially outweighed by the danger of unfair prejudice because the clothing connected O'Hara to the description provided to law enforcement and provided context for evaluating O'Hara's account of drawing the firearm and firing backward. Additionally, the court limited potential prejudice by restricting gang-related testimony. See Rule 403, SCRE ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ."); State v. Wiles, 383 S.C. 151, 158, 679 S.E.2d 172, 176 (2009) ("Unfair prejudice means an undue tendency to suggest decision on an improper basis."); State v. McLeod, 362 S.C. 73, 81, 606 S.E.2d 215, 220 (Ct. App. 2004) ("A trial [court's] decision regarding the comparative probative value and prejudicial effect of evidence should be reversed only in exceptional circumstances."). We likewise hold the court did not abuse its discretion in admitting the redacted 911 recording. The redactions removed the challenged clothing descriptions, and the court instructed the jury not to speculate about deleted portions of the exhibits. See State v. Grovenstein, 335 S.C. 347, 353, 517 S.E.2d 216, 219 (1999) ("[J]urors are presumed to follow the law as instructed to them."). 2. We hold the trial court erred in permitting the State to amend the pointing and presenting indictment to substitute Ryan Woodard for Paul Mishoe. See State v. Tumbleston, 376 S.C. 90, 94, 654 S.E.2d 849, 851 (Ct. App. 2007) ("The trial court's factual conclusions as to the sufficiency of an indictment will not be disturbed on appeal unless so manifestly erroneous as to show an abuse of discretion."); id. ("An abuse of discretion occurs when the trial court's ruling is based on an error of law or a factual conclusion without evidentiary support."). Mishoe and Woodard were distinct victims of separate encounters: O'Hara shot Mishoe outside the restaurant and subsequently confronted Woodard inside the kitchen. Thus, the amendment substituted a separate offense for the offense charged in the original indictment. See S.C. Code Ann. § 17-19-100 (2014) (permitting amendment of an indictment "if such amendment does not change the nature of the offense charged"); State v. Means, 367 S.C. 374, 386, 626 S.E.2d 348, 355 (2006) (stating the court must deny a proposed amendment when it "changes the nature of the offense set forth in the original indictment" unless it charges a lesser-included offense or the defendant waives presentment and pleads guilty); State v. Bryson, 357 S.C. 106, 116, 591 S.E.2d 637, 642 (Ct. App. 2003) (holding that substituting a different victim of pointing a firearm replaced the indicted offense with a separate, unindicted offense), overruled on other grounds by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005); cf. State v. Jones, 211 S.C. 319, 322, 45 S.E.2d 29, 30 (1947) (finding an amendment to an indictment changing the victim's name was proper when "[t]he amendment ordered to be made in no way changed the identity of the victim of the assault" because there was a misnomer in the indictment but "there was never any question or doubt of his identity as being the person actually assaulted"). Accordingly, we vacate O'Hara's conviction and sentence for pointing and presenting a firearm. AFFIRMED IN PART AND VACATED IN PART.1 GEATHERS, HEWITT and VINSON, JJ., concur. 1 We decide this case without oral argument pursuant to Rule 215, SCACR.