An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-142

NORTH CAROLINA COURT OF APPEALS

Filed: 16 August 2005

STATE OF NORTH CAROLINA

v .                         Wake County
                            No. 02 CRS 58208
RONALD VALENTINE
HENDRICKSON,

        Defendant.

    Appeal by defendant from judgment entered 6 March 2003 by Judge A. Leon Stanback in Wake County Superior Court. Heard in the Court of Appeals 19 October 2004.

    Attorney General, Roy Cooper, by Special Deputy Attorney General Steven M. Arbogast, for the State

    Miles & Montgomery, by Mark Montgomery, for defendant- appellant

    ELMORE, Judge.

    Ronald Valentine Hendrickson (defendant) was convicted of second degree murder for the death of his fiancée Tiana Williams (Williams). He appeals the conviction on the basis that the trial court erred in denying his request for instructions regarding voluntary manslaughter and denial of his motion for a mistrial following an emotional outburst from the courtroom's gallery. We find no error at trial. Defendant also appeals his sentence, arguing that the trial court erred in not finding two mitigating factors and instead determining that an aggravating factor existed. In accordance with State v. Allen, ___ N.C. ___, ___ S.E.2d ___ (01 July 2005) (485PA04), we remand for a new sentencing hearing.
    The State's evidence tended show that defendant and Williams had been dating one another for approximately six years prior to the 6 July 2002 incident. The two had met after high school and, following Williams's sophomore year at Meredith College, moved in together in the Raleigh apartment where the attack occurred. Following Williams's graduation in May of 2002, she had plans to attend medical school at East Carolina University and move to Greenville, North Carolina. Yet, prior to her move, she and defendant were in the process of purchasing a house in Durham.
    On 6 July 2002, Williams had two phone conversations with her good friend from college, Brooke O'Neill. Ms. O'Neill testified to the content of both those conversations. The second and most lengthy conversation regarded Williams having second thoughts about purchasing a house and continuing her relationship with defendant. Ms. O'Neill described Williams as saddened and confused. Ms. O'Neill advised Williams to take time to think about what she was doing since having a mortgage together would inevitably tie the couple together.
    The State's evidence further showed that just following this conversation with Ms. O'Neill, Williams confronted defendant about wanting out of the joint purchase of the house. Williams, from the computer located in the dining room, informed defendant that he could afford the house on his own or move back to the Caribbean. Defendant, apparently caught off guard by Williams's remarks, threwa vase from the dining room table which shattered on the back of one of the chairs, breaking the chair.
    Defendant proceeded to clean up the glass and dispose of it in the trash can. The State's evidence shows that Williams “said something[,]” and defendant picked up the broken chair in the dining room and began to beat Williams over the head with it. The State introduced no evidence of physical violence or threat of attack from Williams leading up to the beating. The only evidence of circumstances prior to defendant's attack, other than those already mentioned, was that Williams and defendant were verbally arguing about her car, which defendant's friend was working on following a car accident two weeks earlier.
    Several medical professionals testified to the extent and nature of Williams's injuries. Her cause of death was determined to be severe lacerations to the head consistent with being beaten multiple times with a blunt object. One doctor described the injuries as similar to those sustained by being ejected from a car in an accident and landing on your head. There were other bruises found on Williams's body characterized as defensive wounds.
    Williams was first seen, after the beating that occurred in the dining room, outside the apartment laying face down with blood surrounding her head. She was seen by a neighbor who looked out the window some time after hearing screaming. The neighbor attempted to call 911, but also observed defendant come out of the apartment and attempt to render some assistance by placing a blanket around Williams and a pillow under her head.    Upon arrival by police, defendant was eventually taken into custody where he waived his Miranda rights and gave a statement that Deputy Amy Russo of the Raleigh Police Department testified to at trial. Defendant presented no evidence, and thus, the account of what occurred in the home was derived solely from defendant's statement, presented as part of the State's case in chief. Russo testified that defendant told her he could not remember how many times he hit Williams, other than repeatedly, and he also could not remember if he hit her outside the apartment, although he said it was possible. The interview was not taped.
    Defendant first assigns error to the trial court's denial of his request to include jury instructions on the lesser included offense of voluntary manslaughter. We find no error in the trial court's decision. There is no evidence in the record that defendant was assaulted by Williams or was threatened by an assault from Williams. Defendant would have us hold that merely referring to the argument just prior to Williams's beating as a “fight” is enough to require an instruction on voluntary manslaughter. We are not inclined to do so. There is no evidence in the record that prior to defendant's actions in beating Williams, Williams did anything other than say something; any reference to “fighting” was only that of verbally arguing. And, it is a well established rule of law that words alone will not negate the malice element supporting second degree murder, thus reducing the crime to that of voluntary manslaughter.
        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. State v. Ward, 286 N.C. 304, 210 S.E. 2d 407 (1974), modified, 428 U.S. 903, 49 L.Ed. 2d 1207, 96 S.Ct. 3206 (1976). 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. Watson, 287 N.C. 147, 214 S.E. 2d 85 (1975).

State v. Montague, 298 N.C. 752, 756-57, 259 S.E.2d 899, 903 (1979). Without evidence of more than Williams saying something, the trial court did not err in denying a request for an instruction on voluntary manslaughter. See State v. Beck, 163 N.C. App. 469, 472-73, 594 S.E.2d 94, 97 (If the State meets its burden on all the elements and there is no conflicting evidence other than defendant's denial, an instruction on a lesser included offense is improper.) disc. review denied, 358 N.C. 546, 599 S.E.2d 558 (2004); see also State v. Maness, 321 N.C. 454, 461, 364 S.E.2d 349, 353 (1988).
    Defendant next assigns error to the trial court's denial of his motion to dismiss following an outburst from one of Williams's family members upon the display of graphic pictures during one of the doctor's testimony. A trial court's decision regarding a motion for a mistrial is discretionary, and the decision on appeal will not be reversed absent an abuse of discretion. See State v. Nobles, 350 N.C. 483, 511, 515 S.E.2d 885, 902 (1999). Defendant argues on appeal that since an inquiry of the jury was notconducted, the court abused its discretion. We do not agree. Defendant did not request an inquiry at trial, but instead asked the court to instruct the jury to ignore the outburst and remind them that emotion plays no role in their decision. The trial court did so, and no further outburst occurred. We agree with the State that this curative instruction was adequate; the court did not abuse its discretion. See State v. Powell, 340 N.C. 674, 692-93, 459 S.E.2d 219, 228 (1995) (no abuse of discretion where following outburst, jury admonished to disregard and ignore potential emotional influences and spectators warned of further disruption).
    Last, defendant assigns error to his sentencing. In his brief defendant argued that the trial court erred in not finding two mitigating factors and also erred in finding an aggravating factor, specifically that the crime was heinous, atrocious, or cruel. He contended that the trial court abused its discretion and we should remand defendant's case for resentencing. Defendant filed his brief on 30 April 2004 and we heard his appeal, as stated above, on 19 October 2004. During this interim period however, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), and, accordingly, defendant filed a motion for appropriate relief with this Court pursuant to N.C. Gen. Stat. § 15A-1418, moving that we apply the holding in Blakely to defendant's case and remand it for resentencing.
    While defendant's appeal and motion were pending, this Court decided State v. Allen, 166 N.C. App. 139, 601 S.E.2d 299 (2004), which was recently affirmed in State v. Allen, ___ N.C. ___, ___S.E.2d ___ (01 July 2005) (485PA04) . There, our Supreme Court applied Blakely and held that N.C. Gen. Stat. § 15A-1340.16 was unconstitutional to the extent that it required the trial court to find aggravating factors by a preponderance of the evidence, rather than presenting them to the jury for a determination beyond a reasonable doubt. See id. at ___, ___ S.E.2d at ___. The remedy applied in Allen for this “structural error” was remand for resentencing. Id.
     Our Supreme Court stated that its ruling in Allen was applicable to all cases “that are now pending on direct review or are not yet final.” Id. at ___, ___ S.E.2d at ___ (citing Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649 (1987)). In Griffith, the United States Supreme Court noted that “final” meant “a case in which a judgment of conviction had been rendered, the availability of appeal exhausted, and the time for petition for certiorari elapsed or a petition for certiorari finally denied.” 479 U.S. at 321 n.6, 93 L. Ed. 2d at 657 n.6. Accordingly, we grant defendant's motion for appropriate relief, which along with his appeal, is pending direct review before this Court. See, e.g., Allen, 166 N.C. App. 147-50, 601 S.E.2d at 305-06 (applying Blakely to defendant's case pursuant to a motion for appropriate relief). Thus, pursuant to Allen, ___ N.C. at ___, ___ S.E.2d at ___, we remand defendant's second-degree murder conviction to the trial court for resentencing.
    No error at trial, remanded for resentencing.
    Judges McGEE and McCULLOUGH concur.
    Report per Rule 30(e).

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