NO. COA03-209
Appeal by defendant from judgment dated 6 September 2002 by
Judge Wiley F. Bowen in Lee County Superior Court. Heard in the
Court of Appeals 19 November 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Steven M. Arbogast, for the State.
J. Clark Fischer for defendant-appellant.
BRYANT, Judge.
Angel Luis Medina (defendant) appeals from a judgment dated 6
September 2002 entered consistent with a jury verdict finding him
guilty of second-degree murder.
The State's evidence tended to show: that Victoria Lopez and
defendant dated for six months before ending the relationship.
Defendant continued to telephone Lopez, and on 9 October 2001,
defendant went to her house. When Lopez told defendant that she
did not want anything to do with him, defendant left her house
after which Lopez and her daughter heard gunshots.
That evening, Lopez and her new friend Jose Roberto Rojas-
Ramirez, a.k.a. Eleno Estrada (Jose), went to the park with Lopez'sdaughter. Earlier, defendant had declined to go to the park but
after learning that Lopez and Jose were in the park, defendant had
Carrie Clark, a friend, drive him to the park. Defendant carried
a gun along with him.
Defendant walked around the park until he found Lopez and
Jose. Lopez saw defendant load his gun and put it in his pocket.
Defendant and Jose got into a confrontation, and Jose grabbed
defendant's shirt and told defendant, “You're no man. I'm here
with your woman.” Defendant shot Jose in the face and fled the
scene. Police recovered defendant's gun, which matched the type of
gun used in the shooting.
Defendant did not present any evidence at trial.
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The sole issue on appeal is whether the trial court erred in
denying defendant's request for a jury instruction on voluntary
manslaughter.
A defendant is entitled to a jury instruction on a lesser-
included offense when evidence exists from which the jury could
find the defendant guilty of the lesser-included offense.
State v.
Wallace, 309 N.C. 141, 145, 305 S.E.2d 548, 551 (1983). If such
evidence does not exist, the trial court can properly deny a
request for the instruction.
See State v. Rogers, 323 N.C. 658,
667, 374 S.E.2d 852, 858 (1989).
In the instant case, defendant was found guilty of second-
degree murder. Second-degree murder is defined as “the unlawful
killing of a human being with malice[,] but without premeditationand deliberation.”
State v. Snyder, 311 N.C. 391, 393, 317 S.E.2d
394, 395 (1984). Voluntary manslaughter is defined as “the
unlawful killing of a human being without malice, premeditation[,]
or deliberation.”
State v. Robbins, 309 N.C. 771, 777, 309 S.E.2d
188, 191 (1983). Here, defendant would be entitled to an
instruction on voluntary manslaughter if evidence was present to
negate the element of malice.
See id.
Defendant argues that he acted in the heat of passion and
under provocation. Specifically, defendant argues Jose's statement
“You're no man. I'm here with your woman” and his grabbing of
defendant's shirt aroused defendant's passion.
In order for a homicide to be reduced from
second-degree murder to voluntary manslaughter
on the theory that a defendant acted under the
influence of sudden passion, the heat of
passion suddenly aroused by provocation must
be of such nature as the law would deem
adequate to temporarily dethrone reason and
displace malice. Mere words however abusive
are not sufficient provocation to reduce
second-degree murder to manslaughter. Legal
provocation must be under circumstances
amounting to an assault or threatened assault.
State v. Montague, 298 N.C. 752, 756-57, 259 S.E.2d 899, 903 (1979)
(citations omitted). Furthermore, “[t]he word assault has been
defined as an overt act or attempt, with force and violence, to do
some immediate physical injury to the person of another, which show
of force or violence must be sufficient to put a person of
reasonable firmness in fear of immediate physical injury.”
State
v. Rowland, 89 N.C. App. 372, 376, 366 S.E.2d 550, 552-53 (1988).
Jose's statement and his act of grabbing defendant's shirt
were not sufficient evidence of an assault or threatened assault toamount to legal provocation.
See State v. Salmon, 140 N.C. App.
567, 573-74, 537 S.E.2d 829, 833-34 (2000) (stating that the
victim's statement to the defendant that the victim would have sex
with the defendant's sister and the victim's shoving of the
defendant were not an assault or threatened assault to amount to
legal provocation). Defendant has neither argued nor shown that he
was in fear of immediate bodily harm when Jose grabbed his shirt.
Therefore, evidence of legal provocation does not exist.
There is, however, sufficient evidence that defendant acted
with malice in shooting the victim. Our Supreme Court has stated
that malice is not necessarily an intent to take a human life.
State v. Wilkerson, 295 N.C. 559, 578, 247 S.E.2d 905, 916 (1978).
“[I]t may be inferential or implied, instead of positive, as when
an act which imports danger to another is done so recklessly or
wantonly as to manifest depravity of mind and disregard of human
life.”
Id. (citations omitted). Malice must often be proven
through use of circumstantial evidence.
State v. Sexton, 357 N.C.
235, 238, 581 S.E.2d 57, 58 (2003).
In the present case, the uncontroverted evidence tending to
show malice includes the following: Defendant went to the park
only after learning Lopez was there with Jose; defendant went to
the park carrying a gun; defendant loaded the gun as he approached
Lopez and Jose; and defendant shot Jose in the face.
Accordingly, the trial court properly denied defendant's
request for a jury instruction on voluntary manslaughter.
No error. Chief Judge EAGLES and Judge LEVINSON concur.
Report per Rule 30(e).
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