An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1743

NORTH CAROLINA COURT OF APPEALS

Filed: 18 November 2003

STATE OF NORTH CAROLINA

    v.                            Johnston County
                                No. 96 CRS 12315
TEDDY DANIEL HARMON,
        Defendant.
    

    On writ of certiorari to review the judgment entered 28 August 1997 by Judge Robert F. Floyd, Jr., in Johnston County Superior Court. Heard in the Court of Appeals 6 October 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Jonathan P. Babb, for the State.

    Russell J. Hollers, III, for defendant-appellant.

    GEER, Judge.

    
    Defendant Teddy Daniel Harmon, who was convicted of second degree murder, contends that the trial court erred in denying his request for a voluntary manslaughter instruction. Because the record does not contain evidence from which a jury could conclude that defendant acted with adequate provocation, the trial court properly refused to instruct the jury as to voluntary manslaughter.
    In the early morning on 17 August 1996, defendant and his friends Steve Gustafson and William Pope were at the Coastal gas station in Benson, North Carolina. James Dormio was standing near his car at the gas pumps. After seeing Dormio, Pope stated to defendant and Gustafson that "he was going to kick [his] a--." Pope was angry with Dormio because he had heard that Dormio washarassing a former girlfriend of Gustafson.
    Eyewitnesses testified that Pope, Gustafson, and defendant approached Dormio at his car. Pope pushed Dormio, asking him if he had a problem. While the four men were arguing and shoving, Douglas Johnson came up from "out of nowhere." He said "Don't f--k with my friends," and hit Dormio in the face with his fist.
    Dormio, who was wearing a cast on his leg, stumbled and fell face first to the pavement. The eyewitnesses testified that while Dormio was lying on the ground, Johnson and defendant kicked Dormio repeatedly in Dormio's ribs, back, neck, and head. No one had seen Dormio with a weapon and no one testified that Dormio struck anyone.
    Officer Ashley McLamb arrived at the gas station in response to a call that a fight was in progress. Officer McLamb found Dormio's unconscious body near the gas pumps, with bruises on his face and blood coming from his mouth and nose. A rescue squad transported Dormio to a hospital where he was pronounced dead on arrival.
    The Chief Medical Examiner for North Carolina concluded that Dormio died from bleeding around the base of his brain that was the result of blunt force trauma tearing a major artery to the brain. The Medical Examiner testified that one or more violent blows, including a kick, causing a wrenching of the neck or twisting of the head could have led to the tearing.
    On 23 September 1996, defendant was indicted for murder pursuant to a short-form indictment. Defendant was ultimatelyconvicted of second degree murder and sentenced to a term of 157 to 198 months imprisonment. Defendant failed to perfect his appeal in a timely manner, but this Court granted defendant's petition for writ of certiorari on 10 April 2002.
    Defendant first argues that the trial court erred by not instructing the jury on the lesser included offense of voluntary manslaughter. Defendant contends that there was a conflict in the evidence regarding provocation, and thus he was entitled to have the jury consider voluntary manslaughter as a possible verdict. We find no error.
    "[A] defendant is entitled to have a lesser-included offense submitted to the jury only when there is evidence to support it." State v. Johnson, 317 N.C. 193, 205, 344 S.E.2d 775, 782 (1986). A trial court need not instruct on a lesser included offense when the "State's evidence is positive as to each element of the offense charged and there is no contradictory evidence relating to any element . . . ." State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002).
    Voluntary manslaughter is "the killing of another human being without malice and without premeditation and deliberation under the influence of some passion or heat of blood produced by adequate provocation." State v. Watson, 338 N.C. 168, 176, 449 S.E.2d 694, 699 (1994), cert. denied, 514 U.S. 1071, 131 L. Ed. 2d 569, overruled on other grounds, State v. Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995). Defendant was entitled to an instruction on voluntary manslaughter only if there was evidence tending to show(1) defendant assaulted Dormio in the heat of passion; (2) defendant's passion was provoked by acts of the victim which the law regards as adequate provocation; and (3) the assault took place immediately after the provocation. State v. Tidwell, 323 N.C. 668, 673, 374 S.E.2d 577, 580 (1989). In order to constitute "adequate provocation," the victim's conduct ordinarily must have been either an actual physical assault or a threatened assault on the defendant. State v. Rogers, 323 N.C. 658, 667, 374 S.E.2d 852, 858 (1989). See also Watson, 338 N.C. at 176, 449 S.E.2d at 700 ("Mere words, however abusive or insulting are not sufficient provocation to negate malice and reduce the homicide to manslaughter.").
    The evidence in this case is not sufficient to permit a jury to find that the victim Dormio assaulted or threatened to assault defendant. Defendant points to testimony that Dormio took a step towards Gustafson, that Pope pushed Dormio into Harmon, and that Dormio "clenched his fist and puffed up" at Pope. Although defendant contends that Dormio "appeared threatening," the undisputed evidence indicates that any possible "threat" was directed towards Pope and Gustafson and not defendant. The evidence is also undisputed that Pope, Gustafson, and defendant initiated the confrontation; that Pope made the first physical contact by shoving Dormio; that the three men shoved Dormio; and that the blows that likely killed Dormio occurred when he was lying on the ground. These circumstances do not present the level of provocation that would "render the mind incapable of cool reflection" and, therefore, did not warrant the submission of aninstruction on involuntary manslaughter. State v. Huggins, 338 N.C. 494, 499, 450 S.E.2d 479, 482 (1994). This assignment of error is overruled.
    Defendant next argues that the trial court erred by denying his motion to dismiss based on the State's use of the short-form murder indictment. This argument was recently rejected by our Supreme Court in State v. Hunt, 357 N.C. 257, 582 S.E.2d 593 (2003). Accordingly, the assignment of error is overruled.

    No error.    
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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