           REPORTED

IN THE COURT OF SPECIAL APPEALS

         OF MARYLAND

               No. 158

       September Term, 2014




      KIMBERLY JOHNSON

                 v.

     STATE OF MARYLAND




   Meredith,
   Woodward,
   Wright,

                 JJ.


      Opinion by Woodward, J.


   Filed: May 28, 2015
       On May 21, 2013, appellant, Kimberly Johnson, hit Wayne Vendemia, causing him

to fall down and strike his head on the road. Vendemia later died of his injuries. Appellant

was subsequently convicted of involuntary manslaughter after a jury trial in the Circuit Court

for Baltimore City. The court sentenced appellant to seven years’ incarceration.

       Appellant presents three questions on appeal, which we have rephrased as follows:1

             1.     Did the trial court err or abuse its discretion by modifying the
                    pattern jury instruction for second degree assault?

             2.     Did the trial court abuse its discretion in failing to instruct the
                    jury concerning self defense?

             3.     Did the trial court err by giving the pattern jury instruction for
                    involuntary manslaughter?

       Answering all three questions in the negative, we shall affirm the judgment of the

circuit court.




       1
           Appellant’s questions as originally presented are:

             1.     Did the trial judge commit reversible error when he modified
                    a pattern jury instruction over defense counsel’s objection and
                    refused to allow defense counsel to argue that Kim Johnson
                    acted reasonably when she slapped a man who had just spit on
                    her?

             2.     Did the trial judge err when he refused to give a self-defense
                    instruction even when there was sufficient evidence to support
                    a self-defense theory?

             3.     Is reversal required because the pattern jury instruction given
                    on for [sic] involuntary manslaughter contained a gross
                    misstatement of the applicable law of the crime?
                              FACTUAL BACKGROUND

       At approximately 8:15 PM on May 21, 2013, Baltimore City police officers responded

to a call regarding an injured person on the 900 block of De Soto Road. According to

witnesses, appellant struck Vendemia, which caused him to fall down in the road and strike

his head. Appellant then left the scene. Vendemia was taken to the hospital, where he died

a few days later from his head injuries.

       On May 23, 2013, appellant was arrested and transported to the police station, where

she agreed to be interviewed. Appellant gave a recorded statement in which she told police

that she had been driving around on the evening of May 21, 2013, looking for Ray Dillon,

with whom she had an on-again, off-again relationship. Appellant stated that upon seeing

Vendemia exit Dillon’s van, she ran towards the van and yelled at Vendemia, asking where

he had come from. Appellant described what happened next:

           I said Wayne um where the fuck did you just come from and of course
           I seen that he was all high and you know he was you know
           spitting when he was talking and he kept you know just saying
           um it’s a coincidence you didn’t see me and he spitting and I’m
           really funny about but not on purpose but he’s just spitting on
           me. . . . And I’m angry anyway so I hit him in his face on that side of
           his face I hit him and the man fell and in the ground hit his head in the
           street. And the trucks and cars are going by and you know of course
           I’m mad and all but um I’m not going to see nobody get hit or killed
           or anything.

(Emphasis added).

       Appellant stated that she pulled Vendemia up and over to the curb to keep him from

being hit by cars driving on the street. Appellant told police that she asked other people

                                              2
nearby for help, but that no one would help her. Appellant told police:

           I mean yes, I did wrong. I was angry, upset and you know and he
           when he was yelling at back me at it’s a coincidence and he started
           you know spitting on me lips. It was just—I am scared to death of
           germs . . . . And you know I don’t know what nobody’s got I don’t
           want be spit you know what I’m saying and I was mad anyway and I
           hit him one time and I believe if he wouldn’t have been so intoxicated
           he wouldn’t have even fell.

       Appellant also gave the police a note that she had written to Vendemia after being told

that he was alive but “brain dead,” which said:

           Dear Wayne, I’m sorry for making you bust your head. Why did this
           happen. Please believe I am so sorry. I don’t know what makes me
           crazy and I know you do drugs and when you were yelling at me you
           spit on me. I am scared of germs and disease. I am scared of
           everything but I hope you forgive me. I am so, so sorry Wayne.

       Appellant was subsequently indicted for second degree murder. On January 28, 2014,

trial began in the circuit court. Over the course of the trial, the State presented the testimony

of, among others, three witnesses to the altercation between appellant and Vendemia.

       Bradley Baber testified that he and his girlfriend, Stacy Dillon, were driving on the

900 block of De Soto Road on May 21, 2013, when they saw appellant “dragging a guy off

the street and just saying help” and “someone help me get this junkie out of the street.”

Baber testified that he knew appellant as the girlfriend of Ray Dillon, who is Stacy Dillon’s

father. Baber testified that no one came to help appellant, and that he saw appellant drop

Vendemia on the concrete “in between the street and the sidewalk,” which caused

Vendemia’s head to hit the concrete. Appellant then got into her van and drove away.



                                               3
       Stacy Dillon testified that she and Baber were driving to her aunt’s house on De Soto

Road on May 21, 2013. After she parked the car, Stacy saw appellant dragging Vendemia

out of the street, then pulling her arms out from under Vendemia and letting his head hit the

road. Stacy also testified that appellant called Vendemia a “fucking junkie.” When Stacy

told appellant, “I think he’s really hurt,” appellant screamed “No, he’s not.” Stacy testified

that she took Vendemia’s pulse and it was “racing.”

       Hugo Morales testified that he was mowing his front lawn when he observed the

following:

             [MORALES]:          I heard her say where’s my fucking old man at,
                                 excuse my language and [Vendemia] walked
                                 over to her and she asked him again and he said
                                 I don’t know and she started hitting him and
                                 [Vendemia] put his hands up trying to get away
                                 from her and she hit him pretty good and
                                 [Vendemia] put his hands up just to block the
                                 shots and she said I’m going to ask you again
                                 where is my old man at and [Vendemia] says I
                                 don’t know. She says don’t you fucking lie to
                                 me. I know you know where’s he’s at, you were
                                 just with him. Even though [appellant] didn’t
                                 mean to do it, but even though somebody else
                                 gassed her up and got her all pumped up and
                                 mad, she asked [Vendemia] again and at that
                                 time she connected a good blow and he fell
                                 down and hit his head on the concrete and—

                                             ***

             [MORALES]:          That’s when he hit the ground when he fell
                                 straight back.

             [PROSECUTOR]: What hit the ground?

                                              4
             [MORALES]:            His head.

             [PROSECUTOR]: And what did you see?

             [MORALES]:            Him laying there and I told Jessie [2] to grab her
                                   and Jessie says I’m not getting near her and it
                                   just happened so quick and then she—well,
                                   [Vendemia] wouldn’t respond. He was laying
                                   on the ground and [appellant] said, oh, he’s just
                                   fucking faking. He’s nodding and I said he’s
                                   not nodding. He’s out. She had a big gulp of
                                   soda and she said I’ll get his fucking ass up
                                   watch this. Threw the whole big cup of coke, a
                                   big cup of soda in his face and he didn’t
                                   respond. So she kicked him and then spit on
                                   him.

             [PROSECUTOR]: Who kicked him?

             [MORALES]:            [Appellant] did.

       Morales also testified that he had known Vendemia for about two years, that

Vendemia weighed about 100 to 110 pounds, and that appellant outweighed Vendemia by

about fifty pounds. Morales said that Vendemia was “purple” and that he believed Vendemia

was dead or dying when he called 911. Morales also stated that Vendemia had a bone

disease and that he usually drank every day and was a drug user.

       Dr. Mary Ripple, the Deputy Chief Medical Examiner of Maryland, testified that

Vendemia had a “pretty severe head injury,” and that the cause of his death was subarachnoid

hemorrhage, or bleeding on the surface of his brain. According to Dr. Ripple, at the time



       2
           “Jessie” is Jessie Dillon, Ray Dillon’s sister and Stacy Dillon’s aunt.

                                                5
Vendemia’s blood was drawn at 8:47 p.m. on May 21, 2013, he had a blood alcohol content

of .059. Dr. Ripple also testified that she had a report that Vendemia had Kennedy’s disease,

a genetic condition that weakens muscles and causes those afflicted to be more susceptible

to injury. Dr. Ripple stated that someone suffering from Kennedy’s disease would be “a little

less able to react so that makes you a little more suspectible [sic] to injury,” but that she did

not know the extent of the progression of Vendemia’s condition. Dr. Ripple indicated that

she did not see any injury to the back of Vendemia’s head, but that the impact to both sides

of his face indicated that he fell at least twice, or that he was punched on one side of his face

and fell on the other.

       Detective Steven Matchett, a homicide detective with the Baltimore City Police

Department, testified that, after obtaining an arrest warrant, he arrested appellant on May 23,

2013. Detective Matchett stated that appellant was read her Miranda rights and gave the

aforementioned recorded statement to police.         The court admitted the CD containing

appellant’s statement without objection from appellant, and the CD was played for the jury.

       At the close of the State’s case-in-chief, appellant moved for judgment of acquittal

as to second degree murder. The State argued in response that there was sufficient evidence

to support the charge of second degree murder under the theory of second degree depraved

heart murder. The court granted the motion as to second degree murder, and the case

proceeded on the lesser included offense of involuntary manslaughter.

       Appellant testified in her own defense. The testimony was substantively similar to her



                                                6
recorded statement to the police. Appellant testified that Vendemia exited Ray Dillon’s van,

that she confronted Vendemia aggressively using profanity, that Vendemia responded by

“hollering and yelling at [her],” and that in doing so, he spit in her mouth. Appellant stated

that she hit Vendemia one time with the back of her hand, that Vendemia stumbled and fell

into the street, hitting his head, that she dragged Vendemia out of the street, and that she then

left the scene in her van.

       Appellant testified further regarding her reaction when Vendemia spit on her: “I’m

so scared of diseases and germs that—it just—all kinds of emotions. I just felt all kind of

emotions, scared, you know. I went to my doctor’s and got a HIV test right after that. I

mean, that’s how scared I am of all of that.” Appellant said that when she hit Vendemia, “I

wasn’t thinking, I mean I wasn’t thinking nothing. It’s just—it was a reaction from the spit

in my face. You know, it went in my mouth. It went in my mouth.” Appellant agreed that

Vendemia never struck her, and that Vendemia fell because she hit him.

       As previously stated, the jury convicted appellant of involuntary manslaughter. On

March 10, 2014, the court sentenced appellant to seven years’ incarceration. Appellant filed

a timely notice of appeal. Additional facts will be set forth as necessary to our discussion of

the questions presented in the instant appeal.

                                        DISCUSSION

                                     Standard of Review

       On review of a trial court’s ruling granting or denying a proposed jury instruction, “we



                                                7
consider whether the instruction was generated by the evidence, whether it was a correct

statement of law, and whether it otherwise was fairly covered by the instructions actually

given. We review the trial court’s decision not to grant a jury instruction under an abuse of

discretion standard.” Gimble v. State, 198 Md. App. 610, 627 (citations omitted), cert.

denied, 421 Md. 193 (2011).

     Involuntary Manslaughter and Jury Instruction on Second Degree Assault

       Involuntary manslaughter is a common law felony defined as an unintentional killing

done without malice

           (1) in doing some unlawful act not amounting to a felony, or (2) in
           negligently doing some act lawful in itself, or (3) by the negligent
           omission to perform a legal duty. To this basic definition other
           authorities add the qualification, as to the first class of involuntary
           manslaughter, that the unlawful act be malum in se, and not merely
           malum prohibitum, and as to the second and third classes of the
           offense, that the negligence be criminally culpable, i.e., that it be
           gross.

State v. Gibson, 4 Md. App. 236, 242 (1968) (footnote and citations omitted), aff’d, 254 Md.

399 (1969).

       In the instant case, it is undisputed that the type of involuntary manslaughter at issue

is the “unlawful act” involuntary manslaughter, and that the unlawful act is the battery form

of second degree assault. See Md. Code (2002, 2012 Repl. Vol.), § 3-203 of the Criminal

Law (I) Article; Snyder v. State, 210 Md. App. 370, 382 (noting that there are three types of

second degree assault: intent to frighten, attempted battery, and battery), cert. denied, 432

Md. 470 (2013).

                                              8
       The Maryland pattern jury instruction for the battery form of second degree assault

provides:

            Assault is causing offensive physical contact to another person. In
            order to convict the defendant of assault, the State must prove:

                  (1)       that the defendant caused [offensive physical
                            contact with] [physical harm to] (name);

                  (2)       that the contact was the result of an intentional
                            or reckless act of the defendant and was not
                            accidental; and

                  (3)       that the contact was [not consented to by
                            (name)] [not legally justified].

Maryland Criminal Pattern Jury Instructions 4:01 (2d ed. 2012) (“MPJI-Cr”) (brackets and

parentheses in original).

       During the court’s discussion of the above pattern jury instruction with counsel for

the parties, the following colloquy occurred:

            [PROSECUTOR]:                 And then when we get to the 4.01
                                          second degree assault b attery
                                          instruction I believe that given the facts
                                          of this case that number three that contact
                                          was not legally justified that would be
                                          only if, A, she was charged with assault
                                          and, B, if this was a—there has been
                                          some legal defense put forth and right
                                          now there is nothing—the way I read the
                                          self-defense statute there’s nothing that
                                          w ould generate a self-d efense
                                          instruction or a legal justification.

                                          Now, there might be some type of, you
                                          know, people might feel—

                                                9
THE COURT:           I don’t disagree. I mean in the sense
                     that—all right, [defense counsel], even if
                     I gave that instruction what is—I mean I
                     think the jury needs—what are you
                     saying is the legal justification I guess?

[DEFENSE COUNSEL]:   That her response was that of a [sic]
                     ordinary reasonable person in those
                     circumstances.

THE COURT:           Okay. Is there an instruction to that
                     effect? I mean I don’t think a jury—I
                     mean I don’t know. They certainly
                     wouldn’t know from their own
                     knowledge.

[DEFENSE COUNSEL]:   Are you going to say this jury can’t find
                     that her action was reasonable?

THE COURT:           Well, what I need to do is I need, if I
                     was going to give this instruction, I
                     need to have a definition of legal
                     justification. That’s what I need. I
                     don’t know if this jury knows what that
                     term means in and of itself. If we define
                     it for them and it’s appropriate, maybe I
                     would give it but I think just saying it’s
                     legally justified—I think there has to be
                     some explanation of that if it’s going to
                     be permitted. So what is the legal
                     justification?

[PROSECUTOR]:        I have 5-07 here self-defense
                     instruction from the Maryland Pattern
                     jury instruction and I can hand it up to
                     Your Honor. I have a copy.

THE COURT:           I got it.

[PROSECUTOR]:        It’s 5-07.

                           10
THE COURT:           Okay.      I mean do you disagree,
                     [defense counsel]? Self-defense isn’t
                     the legal justification here.

[DEFENSE COUNSEL]:   That is correct, Your Honor.

THE COURT:           Okay. So what is? You got to tell me
                     what is—I think of legal justification as
                     a generic term and inside that, for
                     instance, self-defense or defense of
                     another or something to that effect. So
                     what is the legal justification and give me
                     that. That’s what I need to tell this jury.
                     What is the legal justification for a
                     defense of this charge?

[DEFENSE COUNSEL]:   The legal justification is that a person
                     upon whom one has spit has the right
                     to react whether it be to slap or come
                     back the way she described it.

THE COURT:           Okay. You’re saying what? Because
                     this is such provocative [sic] that
                     spitting in itself—

[DEFENSE COUNSEL]:   Yes.

THE COURT:           Again, that’s sort of—I get what you
                     want to argue. I just want to know what
                     legally—how do I define what you are
                     asking me to do. Defenses, defense of
                     others, defense of (inaudible) duress,
                     entrapment. I mean, I think there’s
                     a—isn’t there—to reduce a charge I
                     mean, provocation or something to that
                     effect.

[DEFENSE COUNSEL]:   I looked at that one. That deals with the
                     reduction of, or heat of hot blood.


                            11
            THE COURT:                    Okay. So tell me—if you can show me
                                          some sort—I mean, if you show me a
                                          case that provocation is a defense to
                                          assault, I’m happy to use it but I
                                          don’t—I mean, do you have something
                                          like that [defense counsel]? I mean—

            [DEFENSE COUNSEL]:            I do not, Your Honor. As I indicated
                                          when I came in, I was assuming we were
                                          under B, not C but that doesn’t excuse it.
                                          I have a brain chill.

(Emphasis added).

       The trial court then discussed several cases with counsel, including State v. Rich, 415

Md. 567 (2010), and Christian v. State, 405 Md. 306 (2008), in an attempt to determine if

provocation was a legal defense to second degree assault. During the discussion, defense

counsel said: “I suggest that the definition of legal justification in this case is whether or not

the defendant’s conduct was that consistent with the actions of a reasonably prudent

individual under the same circumstances.” The State disagreed, arguing that provocation is

not a defense to involuntary manslaughter, and could only reduce first degree assault to

second degree assault. Defense counsel agreed that he had found no case to support his

argument, but continued to argue “that the defendant acted reasonably under the reasonable

man concept.”

       The trial court decided not to give the legal justification part of the pattern jury

instruction for the battery form of second degree assault. The court instructed the jury, in

relevant part:



                                               12
           The defendant is charged with the crime of involuntary manslaughter.
           In order to convict the defendant of involuntary manslaughter, the
           State must prove, one, that the defendant committed an assault; two,
           that the defendant killed [ ] Vendemia and three, that the act resulting
           in the death of [ ] Vendemia occurred during the commission of the
           assault.

                  So you understand what an assault is. An assault is causing
           offensive physical contact to another person. So the State must
           prove then that the defendant caused offensive physical contact to
           [ ] Vendemia and that the contact was the result of an intentional
           or reckless act of the defendant and was not accidental, okay.

(Emphasis added). After the court finished instructing the jury, appellant objected that the

court did not give the third element of the pattern jury instruction, namely, that the contact

was not legally justified.

                                         Contentions

       Appellant argues that the trial court erred by modifying the pattern jury instruction for

second degree assault, because the court should have read the last part of the jury instruction,

which would have allowed the jury to consider “the possible effect on liability if there was

justification for [appellant’s] behavior.” Appellant contends that the court’s modification to

the instruction “expressly prevented defense counsel from arguing that [appellant] should not

be convicted because she had behaved reasonably, and thus was legally justified in flailing

out at [ ] Vendemia when he spit on her.” According to appellant, the jury should have been

instructed regarding reasonableness, because if the jury believed appellant’s testimony that

she “acted reflexively” without thinking when she hit Vendemia, then the jury could have

believed that appellant “did not intend to slap [ ] Vendemia, but rather was simply reacting

                                              13
to having her body invaded by the bodily fluids of a known drug and alcohol abuser.” 3

       The State responds that the trial court did not err in declining to instruct the jury that

in order to find the battery form of second degree assault, the State must prove that

appellant’s conduct was “not legally justified,” because (1) “reasonableness” is not a

recognized defense, and (2) the defense of provocation is inapplicable. The State argues that

“reasonableness” does not absolve a defendant of criminal liability; rather, the criminal code

prohibits conduct that is presumptively unreasonable and thus is subject to criminal sanction.

Moreover, the State argues, a provocation defense is inapplicable to the instant case, because

provocation may only mitigate the presence of malice; it cannot eliminate all responsibility

for an otherwise criminal act. Because second degree assault is a general intent offense that

does not require malice, the State concludes that whether appellant was provoked has no

effect on her criminal liability.

                                           Analysis

       The Maryland pattern jury instruction for second degree assault provides in its

entirety:

                                     MPJI-Cr 4:01
                               SECOND DEGREE ASSAULT

       3
         Appellant conceded in her brief that “[t]he trial judge correctly instructed the jury
by stating the offensive conduct must be intentional or reckless.” At oral argument before
this Court, however, appellant’s counsel asserted that appellant’s reflexive response to the
spitting negated the mens rea necessary to a finding that appellant committed a battery. Such
argument relates to an issue of the sufficiency of the evidence to convict appellant. That
issue was not raised in or decided by the trial court and thus is not preserved for our review.
See Rule 8-131(a).

                                               14
The defendant is charged with the crime of assault.

                              A
                     INTENT TO FRIGHTEN

Assault is intentionally frightening another person with the threat of
immediate [offensive physical contact] [physical harm]. In order to
convict the defendant of assault, the State must prove:

       (1)    that the defendant committed an act with the
              intent to place (name) in fear of immediate
              [offensive physical contact] [physical harm];

       (2)    that the defendant had the apparent ability, at
              that time, to bring about [offensive physical
              contact] [physical harm]; and

       (3)    that (name) reasonably feared immediate
              [offensive physical contact] [physical harm];
              [and]

       [(4)   that the defendant’s actions were not legally
              justified.]

                             B
                     ATTEMPTED BATTERY

Assault is an attempt to cause [offensive physical contact] [physical
harm]. In order to convict the defendant of assault, the State must
prove:

       (1)    that the defendant actually tried to cause
              immediate [offensive physical contact with]
              [physical harm to] (name);

       (2)    that the defendant intended to bring about
              [offensive physical contact] [physical harm]; and

       (3)    that the defendant’s actions were not consented



                                 15
                         to by (name) [or not legally justified]. (notes on
                         use)

                                            C
                                         BATTERY

          Assault is causing offensive physical contact to another person. In
          order to convict the defendant of assault, the State must prove:

                 (1)     that the defendant caused [offensive physical
                         contact with] [physical harm to] (name);

                 (2)     that the contact was the result of an intentional
                         or reckless act of the defendant and was not
                         accidental; and

                 (3)     that the contact was [not consented to by
                         (name)] [not legally justified].

                                       Notes on Use

                  Use this instruction if the defendant is charged with second
          degree assault, under Md. Code Ann., Crim. Law I § 3-203 (2012).
          Use version “A” when the only theory of assault is an intent to
          frighten type of assault. Use (4) only if the evidence generates
          justification, e.g., self-defense, and give the instruction for that
          justification. Use version “B” when the only theory of assault is an
          attempted battery type of assault. Out of an abundance of caution, use
          (3) unless it is clear that there is neither justification nor consent. Use
          version “C” when the only theory of assault is a battery. Out of
          an abundance of caution, use (3) unless it is clear that there is
          neither justification nor consent. Although version “B” and version
          “C” may both be applicable, it is unlikely that both version “A” and
          version “B” are applicable or that both version “A” and version “C”
          are applicable.

MPJI-Cr 4:01 (emphasis added) (brackets and parentheses in original).

      The commentary instructs the trial court to use the third part of the subject instruction



                                              16
“unless it is clear that there is neither justification nor consent.” In the instant case, there was

neither. There has been no issue raised by appellant regarding consent, and, as the State

correctly argues, there is no legal justification, because appellant’s asserted reasonable

behavior is not a recognized defense to second degree assault.

       The law recognizes certain defenses as legal justification for criminal acts: self

defense, defense of others, duress, etc. See, e.g., Lee v. State, 193 Md. App. 45, 58

(“Defense of others, like self-defense, is a justification or mitigation defense.”), cert. denied,

415 Md. 339 (2010); Wentworth v. State, 29 Md. App. 110, 117 (1975) (“[D]uress, coercion

or compulsion is ordinarily a valid defense to a charge of crime.”), cert. denied, 278 Md. 735

(1976). For a claim of “reasonableness” to be relevant to a determination of criminal

liability, that “reasonableness” must be rooted in one or more of the defenses recognized by

the law as applicable to the offense at issue. See, e.g., Christian, 405 Md. at 323-27

(discussing the applicability of reasonable behavior with regard to a claim of perfect and

imperfect self defense). Here, appellant claims that her reflexive response to Vendemia

spitting in her mouth was reasonable, but does not tie that behavior to any recognized legal

defense. Appellant cites to no authority, and we have found none, for the proposition that,

standing alone, reasonableness is a defense recognized as a legal justification for second

degree assault.

       In our view, the closest recognized legal defense raised by appellant’s argument is




                                                17
provocation.4 A provocation defense, however, serves only to mitigate the presence of

malice and cannot absolve an individual of all criminal liability. See State v. Faulkner, 301

Md. 482, 486 (1984) (“These acts, because they create passion in the defendant and are not

the product of a free will, negate malice and thus mitigate a homicide to manslaughter.”);

Dennis v. State, 105 Md. App. 687, 695 (stating that provocation “constitute[s] a mitigating

factor sufficient to negate the element of malice [that] thereby reduce[s] murder to

manslaughter”), cert. denied, 340 Md. 500 (1995). Because the defense of provocation may

mitigate only one criminal offense into another, lesser criminal offense, it follows that, even

if the defense of provocation applied in the instant case, any application of that defense

would necessarily and ultimately result in a finding that appellant committed some lesser

criminal offense.

       Moreover, second degree assault is a general intent offense that does not require

malice. See Genies v. State, 196 Md. App. 590, 601 (2010), aff’d, 426 Md. 148 (2012); see

also Wieland v. State, 101 Md. App. 1, 40 (1994) (“A consummated intentional battery

requires a general intent on the part of the perpetrator to hit the victim.”). Because it lacks

the element of      malice, second degree assault cannot be reduced by the defense of

provocation into some lesser offense. Indeed, second degree assault has no lesser included

offense. Consequently, an instruction on provocation could not have had any effect on

       4
        Although, in her brief, appellant disclaims that she is arguing that she “was so
provoked by [ ] Vendemia spitting on her that she killed him in a hot-blooded rage,” the State
has argued extensively the inapplicability of a provocation defense. Thus we believe it
appropriate to briefly address the argument.

                                              18
whether appellant committed second degree assault as the “unlawful act” for involuntary

manslaughter. Accordingly, the court did not err in declining to give the third part of the

pattern instruction on the battery form of second degree assault.

                                  Self Defense Instruction

                                         Contentions

       Appellant next argues that appellant was entitled to a self defense instruction, because

“her testimony established sufficient evidence to support a theory [that] Vendemia was the

aggressor and assaulted [appellant] first.” Appellant asserts that in her testimony, she

expressed her belief that “she was in danger of bodily harm via infection or disease,” which

was corroborated by the fact that she got an HIV test after Vendemia spat on her. Moreover,

appellant argues, “[t]he fact that no one . . . was willing to come to [ ] Vendemia’s aid after

he fell to the ground in the middle of the street added credibility to an argument that

[appellant’s] fear was objectively reasonable.”      Appellant also points to the fact that

Vendemia spit on her before she hit him to support her argument that Vendemia was the

aggressor.

       The State responds that appellant’s claim of error regarding the court’s failure to

instruct on self defense is waived for appellate review, because appellant did not object

below and in fact affirmatively rejected the court’s invitation to consider the instruction’s

applicability. Additionally, the State argues, the evidence did not generate a self defense

instruction, because appellant’s recorded statement to the police and her trial testimony



                                              19
showed that she understood the spitting to be accidental, and appellant did not produce

testimony that she believed that she was in immediate or imminent danger of bodily harm.

                                           Analysis

       We agree with the State that any error on the part of the trial court in failing to give

a self defense instruction is not only not preserved for our review, but is affirmatively

waived. First, appellant waived her rights on this issue when she did not request a self

defense instruction. See Tull v. State, 230 Md. 152, 156 (1962) (holding that it was not plain

error for the court not to give a self defense jury instruction where the defendant did not

request one); Martin v. State, 174 Md. App. 510, 520 (2007) (“[A] party waives his/her rights

when he/she fails to request an instruction . . . .”); Cicoria v. State, 89 Md. App. 403, 426

(1991) (considering Maryland Rule 4-325(e) and determining that, where a party failed to

request the court to instruct the jury on a good faith defense, “he waived any possible error”),

aff’d, 332 Md. 21 (1993).

       Second, defense counsel expressly advised the trial court that appellant was not

asserting self defense:

           [PROSECUTOR]:                 I want to do a little quick—I might want
                                         to do a little quick research to see if
                                         assault second is a lesser included
                                         offense of manslaughter.

           THE COURT:                    Okay.     I thought that was in the
                                         instructions somewhere.       Somebody
                                         asked for that, I don’t know.




                                              20
           [PROSECUTOR]:                I asked for it just because of the way
                                        manslaughters instruct, but I might ask
                                        for it as an actual charge and then
                                        secondly I might want to do a little
                                        research because it sounds like he’s
                                        alluding to its self-defense—

           [DEFENSE COUNSEL]:           No.

(Emphasis added).

       As previously quoted, when the trial court stated that “[s]elf-defense isn’t the legal

justification here,” defense counsel responded, “That is correct, Your Honor.” Later, the

court again said: “I think [that defense counsel] is saying it wasn’t self-defense. So I mean

he’s not arguing that.” Defense counsel did not correct the trial court.

       Even if preserved, the evidence was not sufficient to generate a self defense

instruction. There are four elements of self defense:

           (1)    The accused must have had reasonable grounds to believe
                  himself . . . in apparent imminent or immediate danger of death
                  or serious bodily harm from his . . . assailant or potential
                  assailant;

           (2)    The accused must have in fact believed himself . . . in this
                  danger;

           (3)    The accused claiming the right of self defense must not have
                  been the aggressor or provoked the conflict; and

           (4)    The force used must have not been unreasonable and
                  excessive, that is, the force must not have been more force than
                  the exigency demanded.

Haile v. State, 431 Md. 448, 472 (2013) (alterations in original) (citations and internal



                                              21
quotation marks omitted); MPJI-Cr 5:07.

       In the instant case, the evidence was arguably insufficient as to all four factors. The

evidence was most clearly insufficient for the fourth factor, because appellant responded with

“unreasonable and excessive” force by hitting Vendemia after he spit on her. Haile, 431 Md.

at 472. There is no evidence of aggressive conduct by Vendemia towards appellant during

their conversation. In her recorded statement to police, appellant said that Vendemia was

“spitting when he was talking . . . but not on purpose but he’s just spitting on me,” indicating

that even she believed that the spitting was unintentional on Vendemia’s part. Accordingly,

even if preserved, the trial court did not err in failing to instruct the jury concerning self

defense.

                          Involuntary Manslaughter Instruction

       The Maryland pattern jury instruction for unlawful act involuntary manslaughter

provides:

                                MPJI-CR 4:17.9
                    HOMICIDE–INVOLUNTARY MANSLAUGHTER
                   (GROSSLY NEGLIGENT AND UNLAWFUL ACT)

                                              ***

                                      B
                          INVOLUNTARY MANSLAUGHTER–
                                 UNLAWFUL ACT

            The defendant is charged with the crime of involuntary manslaughter.
            In order to convict the defendant of involuntary manslaughter, the
            State must prove:



                                              22
                   (1)     that [the defendant] [another participating in the
                           crime with the defendant]] [[committed]
                           [attempted to commit]] (unlawful act(s));

                   (2)     that [the defendant] [another participating in the
                           crime] killed (name); and

                   (3)     that the act resulting in the death of (name)
                           occurred during the [commission] [attempted
                           commission] [escape from the immediate scene]
                           of the (unlawful act(s)).

MPJI-Cr 4:17.9B (brackets and parentheses in original). In accordance with the pattern jury

instruction, the trial court in the instant case instructed the jury as follows:

            The defendant is charged with the crime of involuntary manslaughter.
            In order to convict the defendant of involuntary manslaughter, the
            State must prove, one, that the defendant committed an assault; two,
            that the defendant killed [ ] Vendemia and three, that the act resulting
            in the death of [ ] Vendemia occurred during the commission of the
            assault.

Appellant did not object to this instruction.

                                          Contentions

       Appellant argues that the trial court misstated the law when it gave the pattern jury

instruction on involuntary manslaughter, because the instruction fails to “inform the jury that

the act resulting in the victim’s death must be one that typically endangers human life,” as

required by United Life & Accident Insurance Co. v. Prostic, 169 Md. 535, 538 (1936).

Appellant argues that MPJI-Cr 4:17.9B eliminates the “endangering life” requirement, which

creates a lower standard for conviction.




                                                23
       The State responds that appellant’s argument regarding the “endangers human life”

requirement misstates the law and therefore cannot constitute error. The State points to

Schlossman v. State, 105 Md. App. 277, 288 (1995), cert. dismissed as improvidently

granted, 342 Md. 403 (1996), overruled on other grounds by Bailey v. State, 355 Md. 287

(1999), and the subsection of Judge Moylan’s treatise titled “The Unlawful Act Need Not Be

Life-Endangering.” The State argues that the law is clear that second degree assault is a

malum in se offense, i.e., “punishable because it is wrong in itself,” and thus the jury need

not find that appellant’s assault endangered human life in order for her to be convicted of

involuntary manslaughter.

                                           Analysis

       Because appellant did not object to the involuntary manslaughter jury instruction at

trial, this issue is not preserved for our review. Rule 4-325(e) provides:

           No party may assign as error the giving or the failure to give an
           instruction unless the party objects on the record promptly after
           the court instructs the jury, stating distinctly the matter to which the
           party objects and the grounds of the objection. Upon request of any
           party, the court shall receive objections out of the hearing of the jury.
           An appellate court, on its own initiative or on the suggestion of a
           party, may however take cognizance of any plain error in the
           instructions, material to the rights of the defendant, despite a failure
           to object.

(Emphasis added). As this Court has explained, “the Rule’s salutary function is to provide

the trial court an opportunity to correct the instruction before the jury starts to deliberate.”

Martin v. State, 165 Md. App. 189, 197 (2005) (citations and internal quotation marks



                                               24
omitted), cert. denied, 391 Md. 115 (2006). Nevertheless, appellant asks us to exercise plain

error review. We decline to do so and shall explain.

       At the outset, we note that it is well-established that a trial court is strongly

encouraged to use the pattern jury instructions. See Yates v. State, 202 Md. App. 700, 723

(2011) (noting that we have repeatedly “recommended that trial judges use the pattern

instructions”), aff’d, 429 Md. 112 (2012); Minger v. State, 157 Md. App. 157, 161 n.1 (2004)

(“Appellate courts in Maryland strongly favor the use of pattern jury instructions.”); Green

v. State, 127 Md. App. 758, 771 (1999) (“[W]e say for the benefit of trial judges generally

that the wise course of action is to give instructions in the form, where applicable, of our

Maryland Pattern Jury Instructions.”). Moreover, the pattern jury instructions are drafted by

“a group of distinguished judges and lawyers who almost amount to a ‘Who’s Who’ of the

Maryland Bench and Bar.” Green, 127 Md. App. at 771.

       Speaking for this Court in Yates, Judge Graeff wrote: “This Court has recommended

that trial judges use the pattern instructions. Appellant has not cited any case in which a

Maryland appellate court has held that a trial court committed plain error in following this

recommendation and giving, without objection, a pattern jury instruction.” 202 Md. App.

at 723 (citations and footnote omitted). At oral argument before this Court, appellant’s

counsel conceded that since Yates was published, still no opinion has reversed a trial court

for giving, without objection, a pattern jury instruction. On that ground alone, we would

decline to exercise plain error review.



                                             25
       However, we note for the benefit of the trial bench and bar that the pattern jury

instruction on unlawful act involuntary manslaughter does not misstate the law, as claimed

by appellant. The precise issue raised by appellant was addressed and resolved by this Court

in Schlossman. 105 Md. App. at 284-91. In Schlossman, the appellant was convicted of

involuntary manslaughter stemming from a battery committed on the victim, which later

caused the victim to suffer a fatal heart attack. Id. at 281-82. In discussing unlawful act

involuntary manslaughter, we said:

                   The first classification of involuntary manslaughter, known as
           unlawful act involuntary manslaughter or misdemeanor manslaughter,
           can broadly be stated as occurring where one commits a criminal act
           not amounting to a felony that unintentionally causes the death of
           another. This overly simplistic statement of the rule is misleading,
           however, because the rule’s specific requirements hinge upon whether
           the unlawful act was malum in se or malum prohibitum. See United
           Life and Accident Ins. Co. v. Prostic, 169 Md. 535, 539, 182 A. 421
           (1935); Gibson, 4 Md. App. at 242, 242 A.2d 575. “An offense
           malum in se is properly defined as one which is naturally evil as
           adjudged by the sense of a civilized community,” Garnett v. State, 332
           Md. 571, 603 n.12, 632 A.2d 797 (1993); it is an act that is wrongful
           in itself “without any regard to the fact of its being noticed or
           punished by the laws of the state.” Black’s Law Dictionary 959 (6th
           ed. 1990). Unlawful acts that are wrong only because they are
           prohibited by statute are considered to be malum prohibitum acts.
           Garnett, 332 Md. at 603 n.12, 632 A.2d 797 (citation omitted). In the
           case sub judice, appellant concedes that he committed “unlawful
           acts.” We now must determine whether those acts were malum in se
           or malum prohibitum.”

Schlossman, 105 Md. App. at 284-85.




                                            26
       We determined that the appellant’s acts, which included poking the victim with a

stick, urinating on him, and kicking dirt and trash on him while he was passed out,

constituted a criminal battery, and thus such unlawful acts were malum in se. Id. at 285-88.

This Court went on to decide “whether an unlawful act that is malum in se but is not itself

dangerous to life can support a conviction for involuntary manslaughter.” Id. at 285-86.

After reviewing the relevant case law from the Court of Appeals, we concluded:

              [A] homicide resulting from the perpetration of a malum in
              se unlawful act not amounting to a felony is manslaughter, regardless
              of whether the unlawful act was “dangerous to life.” Because
              appellant’s battery against the victim was a malum in se criminal
              act, we hold that the State was not required to prove that
              appellant’s acts were dangerous to life in order to establish a
              prima facie case of involuntary manslaughter.

Id. at 288 (bold emphasis added).

       The Court of Appeals granted a writ of certiorari in Schlossman, but later dismissed

the writ as improvidently granted. 342 Md. at 403. Over the next twenty years, the Court

of Appeals has not overruled Schlossman. If the Court had intended to overrule Schlossman,

it would have expressly done so. See Moore v. State, 412 Md. 635, 657 (2010) (stating that

“[t]his Court is not in the habit of overruling cases without stating that it intends to do so”

(citations and internal quotation marks omitted)). Accordingly, Schlossman remains good

law today.5

       5
        In her reply brief, appellant asserts that Schlossman is not “the controlling standard
for unlawful act involuntary manslaughter,” because the Court of Appeals “has never
recognized this standard.” Appellant cites to no authority for such proposition, and we know
                                                                                (continued...)

                                               27
       Nevertheless, appellant cites to several opinions from the Court of Appeals in which

unlawful act involuntary manslaughter is defined as an unintentional killing done without

malice, “by doing some unlawful act endangering life.” State v. Albrecht, 336 Md. 475, 499

(1994); see Corbin v. State, 428 Md. 488, 513 n.14 (2012); State v. Pagotto, 361 Md. 528,

548 (2000); Dishman v. State, 352 Md. 279 (1998); Cox v. State, 311 Md. 326, 331-32

(1987).    None of the cases cited by appellant involve “unlawful act” involuntary

manslaughter as is present in the instant case.6 Therefore, statements in those opinions

relating to unlawful act involuntary manslaughter are pure dicta. See Halliday v. Sturm,

Ruger & Co., Inc., 138 Md. App. 136, 160 (2001) (“[Dictum] refers to a statement made by

a court incidentally or collaterally, and not directly upon the question before it, or upon a

point not necessarily involved in the determination of the cause.” (citation and internal

quotation marks omitted)), aff’d, 368 Md. 186 (2002).

       In his book, Maryland Criminal Jury Instructions and Commentary § 5.54(C), at 5-204

to -05 (3d ed. 2009), Professor David E. Aaronson discussed the apparent conflict between



       5
        (...continued)
of none. The adoption of appellant’s proposition would have the effect of wiping out most
of the body of caselaw issued by this Court over the course of its almost fifty years of
existence. “[A] reported decision [of the Court of Special Appeals] constitutes binding
precedent . . . .” Archers Glen Partners, Inc. v. Garner, 176 Md. App. 292, 325 (2007),
aff’d, 405 Md. 43 (2008).

       6
         In Dishman, the Court of Appeals “note[d], without deciding, that the facts may also
support an instruction on unlawful act involuntary manslaughter . . . . We need not reach the
question given our conclusion that the facts generated the gross negligence variety of
involuntary manslaughter.” Dishman v. State, 352 Md. 279, 300 n.10 (1998).

                                             28
the dicta of the Court of Appeals in the aforementioned cases and the holding of this Court

in Schlossman, and came to the conclusion that Schlossman expressed the law in Maryland

on this issue. Professor Aaronson wrote:

                  The legal significance of offenses that are malum in se, malum
           prohibitum, or dangerousness to life were examined in Schlossman v.
           State, 105 Md. App. 277, 659 A.2d 371. In that case, the Court of
           Special Appeals held that an unlawful act can form the basis of
           involuntary manslaughter when the act was malum in se regardless of
           whether the act was dangerous to human life, or when the act was
           dangerous to human life, regardless of whether the act was malum in
           se or malum prohibitum. Id. at 288-90, 659 A.2d at 376-77. Note,
           however, that in State v. Pagotto, 361 Md. 528, 762 A.2d 97 (2000),
           the Court of Appeals recently defined involuntary manslaughter as “an
           unintentional killing done without malice by doing some unlawful act
           endangering life which does not amount to a felony. . .” Id. at 548,
           762 A.2d at 107-08 (emphasis added). State v. Pagotto did not deal
           with unlawful act involuntary manslaughter, but instead involved
           lawful act grossly negligent manslaughter. Therefore, the
           language used by the Court of Appeals in Pagotto may have been
           inadvertent and not intended to conflict with the Court of Special
           Appeals’s holding in Schlossman. The Court of Appeals had
           originally granted certiorari in Schlossman, but subsequently
           dismissed certiorari as improvidently granted. Schlossman v. State,
           342 Md. 403, 676 A.2d 513 (1995).

Aaronson, supra, at 5-204 to -205 (italic emphasis and alterations in original) (bold emphasis

added).

       Accordingly, Professor Aaronson’s jury instruction on unlawful act involuntary

manslaughter states, in relevant part:

                 In order for ____________ (insert name of defendant) to be
           found guilty of involuntary manslaughter, the State must prove
           beyond a reasonable doubt that: (1) ____________ (insert name of
           defendant) [or another participant in the crime] committed or

                                             29
           attempted to commit ____________ (insert unlawful act(s)) . . . .

                                            ***

                   If the defendant caused the unforeseen death of another
           while committing or attempting to commit an unlawful act, [he]
           [she] is criminally liable for that death. In order to convict the
           defendant of manslaughter, a causal connection between the unlawful
           act [attempted] [committed] and the death that results must exist,
           although it is not essential that the ultimate harm that resulted was
           foreseen or intended. Any killing, even if accidental or impulsive,
           is involuntary manslaughter, if committed in the [commission]
           [attempted commission] [escape from the immediate scene] of the
            ____________ (insert unlawful act(s)) .

Id. at 5-203 to -204 (brackets and parentheses in original) (bold emphasis added).

       Finally, in his treatise, Criminal Homicide Law § 11.6, at 216-21 (“The Unlawful Act

Need Not Be Life-Endangering”) (2002), Judge Charles E. Moylan, Jr., stated that the

holding in Schlossman was “eminently sound.” Id. at 216. Judge Moylan explained:

           Blackstone’s definition of this variety of involuntary manslaughter as
           the causing of an unintended death “in the commission of some
           unlawful act” made no mention of any requirement that the unlawful
           act be dangerous to life. Hochheimer’s definition expressly
           disclaimed any such requirement.

                  The offense is manslaughter, if death results from
                  merely unlawful conduct . . . contrary to intention, by
                  means not likely to produce death or mortal injury.

           In discussing in detail this variety of involuntary manslaughter,
           none of the leading academic authorities, albeit requiring that the
           unlawful act be malum in se, makes any mention of a requirement
           that it be life-endangering.

Id. (emphasis added) (footnote omitted). Accordingly, we do not hesitate to conclude that



                                            30
the pattern jury instruction on unlawful act involuntary manslaughter accurately states

Maryland law on this crime.


                                        JUDGMENT OF THE CIRCUIT COURT
                                        FOR BALTIMORE CITY AFFIRMED;
                                        APPELLANT TO PAY COSTS.




                                          31
