An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-209


Filed: 2 December 2003


    v.                            Lee County
                                No. 01 CRS 053125

    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.


    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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