                             NO. COA13-495

                     NORTH CAROLINA COURT OF APPEALS

                          Filed: 7 January 2013


STATE OF NORTH CAROLINA

     v.                               Gaston County
                                      No. 11 CRS 7113
ADRIAN TAREL EPPS,
     Defendant.


     Appeal by defendant from judgment entered 25 September 2012

by Judge Hugh B. Lewis in Gaston County Superior Court.     Heard in

the Court of Appeals 26 September 2013.


     Attorney General Roy Cooper, by Special       Deputy   Attorney
     General Amar Majmundar, for the State.

     Michael E. Casterline for defendant-appellant.


     STEELMAN, Judge.


     Where the evidence at trial showed that defendant acted

voluntarily in stabbing McGill, resulting in his death, the trial

court did not err in declining to instruct the jury on involuntary

manslaughter.

                I. Factual and Procedural Background

     On 6 May 2011, Adrian Tarel Epps (defendant) was hosting a

social event at his house.      One of the guests was defendant’s

cousin, who brought her boyfriend, Antwan McGill (McGill). A fight
                                  -2-
occurred in the yard between defendant and McGill, and defendant

was beaten by McGill.      Defendant returned to the house by the

screen door to the kitchen.       McGill followed defendant to the

house.     When McGill approached the screen door, defendant stabbed

him through the door.     McGill was dead on arrival at the hospital

emergency room.    The coroner found McGill’s death to have resulted

from a single stab wound.

     Defendant was charged with first-degree murder.     At the jury

instruction conference, defendant requested an instruction on the

lesser offense of involuntary manslaughter. The trial court denied

that request.    The trial court instructed the jury on first-degree

murder, second-degree murder, and voluntary manslaughter, as well

as the defenses of self-defense and the castle doctrine.      On 25

September 2012, the jury found defendant guilty of voluntary

manslaughter. The jury also found the existence of two aggravating

factors.     The trial court found defendant to be a prior felony

record level IV, and sentenced defendant to an aggravated range

sentence of 121-155 months imprisonment.

     Defendant appeals.
                                  -3-
                   II. Involuntary Manslaughter

    In his sole argument on appeal, defendant contends that the

trial court erred in refusing to instruct the jury on the lesser

offense of involuntary manslaughter.      We disagree.

                      A. Standard of Review

    “[Arguments]    challenging     the   trial   court’s   decisions

regarding jury instructions are reviewed de novo by this Court.”

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149

(2009). “The prime purpose of a court’s charge to the jury is the

clarification of issues, the elimination of extraneous matters,

and a declaration and an application of the law arising on the

evidence.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186,

191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153 (1974).

“[A] trial judge should not give instructions to the jury which

are not supported by the evidence produced at the trial.” Id.

“Where jury instructions are given without supporting evidence, a

new trial is required.” State v. Porter, 340 N.C. 320, 331, 457

S.E.2d 716, 721 (1995).

                           B. Analysis

    “An instruction on a lesser-included offense must be given

only if the evidence would permit the jury rationally to find

defendant guilty of the lesser offense and to acquit him of the
                                       -4-
greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767,

771 (2002).      In the instant case, defendant contends that the

evidence at trial would have permitted the jury to find defendant

guilty of involuntary manslaughter and to acquit him of the other

homicide charges.

     “The   elements     of    involuntary     manslaughter          are:    (1)    an

unintentional killing; (2) proximately caused by either (a) an

unlawful act not amounting to a felony and not ordinarily dangerous

to human life, or (b) culpable negligence.”               State v. Fisher, ___

N.C. App. ___, ___, 745 S.E.2d 894, 901 (2013) (quoting State v.

Hudson, 345 N.C. 729, 733, 483 S.E.2d 436, 439 (1997)).                     Thus, for

the jury to be given an instruction on involuntary manslaughter,

there must have been evidence presented to show that (1) defendant

lacked intent, and that (2) the action causing McGill’s death

either (a) did not amount to a felony and was not ordinarily

dangerous   to   human   life,   or    (b)    was   the     result    of    culpable

negligence.

     At trial, the evidence presented was that defendant fought

with McGill, and that defendant retreated to the kitchen.                          The

evidence further showed that defendant stabbed McGill through the

screen   door,   that    the   knife    had    a    10-12    inch     blade,       that

defendant’s arm went through the screen door up to the elbow, and
                                      -5-
that the stab wound pierced McGill’s lung and nearly pierced his

heart,    and   was   approximately   four   and   one-half   inches   deep.

Defendant contends that he was intoxicated and barely aware of his

actions; that he was afraid for his life and acting to fend off an

attack; and that his actions were reckless but not intended to

cause death.

     Defendant relies on State v. Debiase, 211 N.C. App. 497, 711

S.E.2d 436, disc. review denied, 365 N.C. 335, 717 S.E.2d 399

(2011).    In Debiase, defendant and the victim, guests at a party,

got into an altercation, which concluded with defendant striking

the victim with a bottle, inflicting an injury from which the

victim eventually died.      We held that:

            despite   the   fact  that   Defendant   acted
            intentionally at the time that he struck Mr.
            Lien with the bottle, the evidence contained
            in the present record is susceptible to the
            interpretation that, at the time that he
            struck Mr. Lien, Defendant did not know and
            had no reason to believe that the bottle would
            break or that the breaking of the bottle would
            inflict a fatal wound to Mr. Lien's neck.
            Death resulting from such a series of events
            would, under the previous decisions of this
            Court and the Supreme Court, permit an
            involuntary manslaughter conviction.

Debiase, 211 N.C. App. at 506, 711 S.E.2d at 442.             We held that

the trial court erred by declining to instruct the jury on the
                               -6-
lesser-included offense of involuntary manslaughter, and remanded

for a new trial.

     The facts of the instant case are distinct from those in

Debiase.   In Debiase, defendant was holding the bottle during the

fight.     As a result, the jury was permitted to consider the

possibility that his use of the bottle was not intentional.     In

the instant case, however, defendant was not armed with the knife

during the fight, nor was defendant involved in an altercation at

the time of the fatal stabbing.      Sometime after the fight had

ended, defendant was in the kitchen, inside of the house, when

McGill approached the screen door.   Defendant consciously grabbed

the knife, which he had not been previously holding, and stabbed

McGill through the screen door.

     Defendant cites us to numerous other cases with fact patterns

similar to the facts in Debiase, reaching the same result.      In

each of those cases, a defendant instinctively or reflexively

lashed out, involuntarily resulting in the victim’s death.   In the

instant case, however, defendant’s conduct was entirely voluntary.

The evidence in the record shows that defendant’s conduct was

intentional, and that the stabbing was not an action which was (a)

not a felony, or (b) resulting from culpable negligence.     Based
                               -7-
upon our review of the record, we see no evidence which would have

merited an instruction on involuntary manslaughter.

     We hold that the trial court did not err by refusing to

instruct the jury on the lesser-included offense of involuntary

manslaughter.

     NO ERROR.

     Judge BRYANT concurs.

     Judge HUNTER, ROBERT C. dissenting.
                             NO. COA13-495

                     NORTH CAROLINA COURT OF APPEALS

                         Filed: 7 January 2014

STATE OF NORTH CAROLINA,

     v.                               Gaston County
                                      No. 11 CRS 7113
ADRIAN TAREL EPPS,
     Defendant.



HUNTER, Robert C., Judge, dissenting.


    Based on decisions by this Court and our Supreme Court and

taking the evidence in the light most favorable to defendant, I

believe the evidence would permit a reasonable jury to find

defendant guilty of involuntary manslaughter.      Consequently, I

would conclude that the trial court committed reversible error in

failing to charge the jury on involuntary manslaughter and that

defendant is entitled to a new trial.

                             Background

    On 6 May 2011, Adrian Epps (“defendant”) and his girlfriend,

Jamie Vittatoe (“Ms. Vittatoe”), decided to have a small get-

together at their home near the town of Stanley, North Carolina.

They invited defendant’s cousin Anitra Adams (“Ms. Adams”) who

invited her boyfriend of two months Antwan Rashard McGill (“Mr.

McGill”).   After Ms. Adams and Mr. McGill arrived, around 8 or 9

that night, Ms. Adams asked if defendant had any orange juice to
                                 -2-
mix with vodka.    Defendant replied that they did not; instead, he

cut up lime wedges for her to squeeze into her drinks.     Over the

course of the evening, the couples drank alcohol         and smoked

marijuana.    While no one was able to definitively establish how

much the parties drank, several of the witnesses testified that

both defendant and Mr. McGill were quite intoxicated.      In fact,

one witness testified that defendant was so intoxicated that he

was “stumbling” around and fell down twice.       Moreover, several

witnesses claimed that Mr. McGill got sick in the bathroom from

consuming too much alcohol. According to the postmortem toxicology

report, Mr. McGill had a blood alcohol level of .16 and a small

amount of Xanax in his system.

     At some point during the evening, defendant and Mr. McGill

began arguing; the witnesses provided contradictory accounts of

the altercation.     Defendant contended that the argument started

when Mr. McGill made a derogatory comment about Ms. Vittatoe.

Defendant and Mr. McGill went outside where a physical fight

ensued.    Defendant claimed that Mr. McGill pulled his legs out

from under him and beat him so severely that defendant passed out

twice.    When defendant woke up the first time during the fight, he

felt “dizzy.”     At this point, while defendant was still on the

ground, Mr. McGill kicked him in the face, and defendant stated
                                 -3-
that it felt like his face “exploded” and his ears began ringing.

When he woke up the second time, defendant alleged that he saw Ms.

Adams and Mr. McGill sitting in Ms. Adams’s car in the driveway.

Defendant went back inside his house through a screen door located

off a side porch.     Defendant stated that he was in severe pain,

his head was “killing” him, he felt lightheaded, and his vision

was blurry.    Defendant left the outside door propped open because

he believed Mr. McGill and Ms. Adams were leaving.     When he entered

the kitchen, defendant and Ms. Vittatoe began cleaning the blood

out of his mouth.       Defendant heard footsteps outside on his

driveway.     He turned and saw Mr. McGill coming toward the screen

door.   Fearing that Mr. McGill was coming back to hurt him further

or to harm Ms. Vittatoe, defendant ran to the screen door and held

it shut. During the struggle, defendant claimed he heard Ms. Adams

yell something about a gun.    At this point, defendant grabbed the

knife he had used earlier to cut limes, turned, and stabbed once

through the closed screen door.        Defendant testified that he

“wasn’t trying to pay attention to exactly where [he] might hit

[Mr. McGill] at, or how hard [he] might’ve swung the knife, or

anything like that.”    Defendant went on to allege:

            I wasn’t trying to gauge I’m going to hit [Mr.
            McGill] here with [the knife], I’m going to
            hit him there with it, I’m going to use this
            much force, I’m not going to use that much
                                      -4-
            force, I’m going to pull back at this moment
            of that moment. None of that was going through
            my head. Only thing was going through my head
            was I need to protect myself. I was in fear
            for my life that it was going to either be my
            life or his life.

     Ms. Adams and Devan Williams, a friend of Mr. McGill’s, took

Mr. McGill to the hospital where he was pronounced dead in the

emergency room.    According to the pathologist who performed the

autopsy, Mr. McGill died as a result of excessive bleeding from a

single stab wound in his upper chest.

     At trial, defendant requested the trial court instruct on

involuntary manslaughter.       However, the trial court denied his

request because involuntary manslaughter did not “apply” and noted

defendant’s objection for purposes of an appeal.            The jury was

instructed on first-degree murder, second-degree murder, voluntary

manslaughter, and the defenses of self-defense and defense of

habitation.      The   jury   found    defendant   guilty   of   voluntary

manslaughter.   The trial court sentenced defendant to a minimum of

121 months to a maximum of 155 months imprisonment.              Defendant

appealed.

                                Argument

     Defendant’s sole argument on appeal is that the trial court

committed reversible error by refusing to instruct the jury on

involuntary manslaughter.      Specifically, defendant contends that
                                    -5-
although there was contradictory evidence presented at trial,

there was sufficient evidence presented to permit the jury to find

him guilty of involuntary manslaughter.         Taking the evidence in

a light most favorable to defendant, I agree.

     “[Arguments]     challenging     the   trial     court’s   decisions

regarding jury instructions are reviewed de novo by this Court.”

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149

(2009). “An instruction on a lesser-included offense must be given

only if the evidence would permit the jury rationally to find

defendant guilty of the lesser offense and to acquit him of the

greater.”     State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767,

771 (2002).    “In determining whether the evidence is sufficient to

support the submission of the issue of a defendant’s guilt of a

lesser included offense to the jury, courts must consider the

evidence in the light most favorable to the defendant.”          State v.

Debiase, 211 N.C. App. 497, 504, 711 S.E.2d 436, 441 (internal

quotation marks omitted), disc. review denied, 365 N.C. 335, 717

S.E.2d 399 (2011).    Our Supreme Court has noted that “[c]onflicts

in the evidence are for the jury to resolve, not this Court” when

deciding whether the trial court erred in not submitting an

instruction on involuntary manslaughter.            State v. Lytton, 319

N.C. 422, 427, 355 S.E.2d 485, 488 (1987).     “It is reversible error
                               -6-
for the trial court to fail to instruct on a lesser offense when

evidence has been introduced which supports the finding of such a

lesser offense.”   State v. Fisher, 318 N.C. 512, 524, 350 S.E.2d

334, 341 (1986).

     Involuntary manslaughter is a lesser included offense of

second-degree murder and voluntary manslaughter.   State v. Thomas,

325 N.C. 583, 591, 386 S.E.2d 555, 559 (1989).     Unlike voluntary

manslaughter which requires that a defendant have an intent to

kill, see State v. Wilkerson, 295 N.C. 559, 579, 247 S.E.2d 905,

916 (1978), “involuntary manslaughter can be committed by the

wanton and reckless use of a deadly weapon such as a firearm [see

State v. Wallace, 309 N.C. 141, 305 S.E.2d 548 (1983)] or a knife

[see State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979)][,]”

State v. Buck, 310 N.C. 602, 605, 313 S.E.2d 550, 552 (1984).

     Here, the evidence, when taken in the light most favorable to

defendant, could support a verdict of involuntary manslaughter

based on the theory that defendant killed Mr. McGill as a result

of his reckless use of the knife.      At trial, defendant’s own

testimony establishes that he was not trying to intentionally

inflict a fatal wound; specifically, defendant testified that he

was not aiming at any particular area on Mr. McGill’s body or

consciously using any specific amount of force.       Instead, his
                                    -7-
testimony   indicates   that   he     was   acting   instinctively   and

reflexively when he grabbed the knife, turned, and made a single

stabbing motion toward Mr. McGill through a closed screen door.

While it is uncontroverted that defendant intentionally used the

knife, our Supreme Court has made it clear that the element of

intent for purposes of manslaughter is whether the defendant

intended to inflict a fatal wound, not whether the use of the

weapon was intentional.   See Buck, 310 N.C. at 607, 313 S.E.2d at

553 (concluding that the trial court erred in not submitting the

involuntary manslaughter instruction when “[the] defendant was

wielding the butcher knife generally to defend against a felonious

assault upon him, [but] the actual infliction of the fatal wound,

according to [the] defendant, was not intentional”).          While the

testimony of other witnesses contradicts defendant’s testimony

concerning his lack of intent to kill Mr. McGill, their testimony

does not matter because the trial court must consider the evidence

in a light most favorable to defendant.      Thus, the conflict in the

evidence was for the jury to resolve, not the trial court by

refusing to submit the lesser included offense to the jury.

Consequently, I believe that defendant’s own description of the

events coupled with the fact that Mr. McGill was struck only once

through a closed screen door during the altercation was enough to
                                      -8-
warrant the submission of the involuntary manslaughter instruction

to the jury.

     Unlike the majority, I believe the facts of these case are

similar to those of Debiase.          There, during an altercation, the

defendant struck the victim with a beer bottle; although several

of the witnesses claimed that the defendant struck him multiple

times,    defendant   alleged    to   only   have   hit    the   victim    once.

Debiase, 211 N.C. App. at 499-501, 711 S.E.2d at 438-39.                     The

victim died as a result of massive blood loss from a “gaping wound”

on his neck.    Id. at 498, 711 S.E.2d at 437-38.              The victim also

suffered a second, superficial wound on his head.                    Id.     The

pathologist who conducted the autopsy contended that both wounds

could only have come from a broken beer bottle. Id. This suggested

that the beer bottle broke at some point during the defendant’s

altercation with the victim.

     At   trial,   the   court   refused     to   give    an   instruction    on

involuntary manslaughter.        This Court reversed, concluding that

the evidence, when taken in the light most favorable to the

defendant, had the tendency to show that the defendant did not

intend to kill or seriously injure the victim.                 Id. at 504, 711

S.E.2d at 441.        In order to reach its conclusion, the Court
                                  -9-
reviewed numerous decisions of both this Court and our Supreme

Court noting, in pertinent part, that:

           despite the fact that [the] [d]efendant acted
           intentionally at the time that he struck [the
           victim]   with   the  bottle,   the   evidence
           contained in the present record is susceptible
           to the interpretation that, at the time that
           he struck [the victim], [the] [d]efendant did
           not know and had no reason to believe that the
           bottle would break or that the breaking of the
           bottle would inflict a fatal wound to [the
           victim’s] neck.

Id.

      Like Debiase, I believe that the evidence in the present case

was sufficient to support a reasonable conclusion that Mr. McGill’s

death resulted from defendant’s reckless use of the knife.            It is

uncontroverted that defendant and Mr. McGill had been engaged in

a physical altercation which resulted after both had been consuming

alcohol and drugs for several hours.          Defendant’s own testimony

suggests that he reacted instinctively when he believed Mr. McGill

was coming to hurt either himself or Ms. Vittatoe.               In his

testimony, defendant claimed that he struck at Mr. McGill without

any conscious effort to hit him in any particular way.         Moreover,

the way in which he wounded Mr. McGill supports his contention

that he was acting unintentionally. During the struggle, defendant

swung the knife only once through a closed screen door.               As a

result,   I   believe   the   evidence   in    the   present   case    was
                                 -10-
“susceptible,” Debiase, 211 N.C. App. at 504, 711 S.E.2d at 441,

to an interpretation that defendant did not intend to inflict a

fatal wound when he swung once at Mr. McGill with the knife.

     Moreover, I disagree with the majority’s conclusion that

Debiase is distinguishable because: (1) the altercation between

Mr. McGill and defendant was over by the time defendant stabbed

Mr. McGill; and (2) defendant had not been holding the knife when

the fight began but, instead, grabbed it from the table once they

were struggling at the door.      While the fight between defendant

and Mr. McGill had momentarily ceased at the time defendant entered

his kitchen and began cleaning his wounds, Mr. McGill resumed his

attack by trying to come in defendant’s home.       In addition, while

the majority is correct that the Debiase defendant had the bottle

in his hand prior to the altercation intensifying, id. at 499-502,

711 S.E.2d at 438-440, our Supreme Court has concluded that a

defendant who grabs a weapon during the fight may still be entitled

to the involuntary manslaughter instruction.        See Buck, 310 N.C.

at 603-604, 313 S.E.2d at 551-52 (holding that a defendant was

entitled to an involuntary manslaughter jury instruction when the

defendant’s   testimony   was   that   he   “instinctively”   grabbed   a

butcher knife off a table to scare the victim).           Thus, as in

Debiase, defendant produced sufficient evidence for a reasonable
                                       -11-
jury to find him guilty of involuntary manslaughter, and the trial

court erred in not giving the instruction on it.

     In so concluding, I am mindful of other cases in which our

Courts   have     held    that   a   defendant    was       not    entitled    to   an

instruction on involuntary manslaughter when there was no evidence

that the killing was unintentional other than the defendant’s own

claim that he had not meant to kill and his actions were such that

“[f]atal consequences were not improbable.”                   Fisher, 318 N.C. at

526, 350 S.E.2d at 342.          In Fisher, the defendant used a hunting

knife    during    a     fight   and   testified       that        he   used   it   to

“indiscriminately cut[] and jab[]” the victim.                      Id.    While the

defendant     contended     he   was    entitled       to     an    instruction     on

involuntary       manslaughter       because     the        victim’s      death     was

accidental, this Court disagreed, noting that

            In this case, the defendant admits that he
            knowingly slashed and stabbed the deceased
            with a hunting knife. The defendant’s use of
            a knife indicates a clear intent to inflict
            great bodily harm or death on the deceased.
            There can be no claim of accidental injury
            where one knowingly and willingly uses a knife
            to slash and stab his victim.            Fatal
            consequences were not improbable in light of
            the defendant’s use of his hunting knife in
            such a manner.     As such, the defendant’s
            actions would not fit within the definition of
            involuntary manslaughter and therefore the
            defendant would not qualify for such an
            instruction.
                                  -12-
Id. at 525-26, 350 S.E.2d at 342.

     Here, however, the manner in which defendant killed Mr.

McGill, a single stabbing motion through a closed screen door

during a struggle where both parties were intoxicated and defendant

claimed to be “dizzy” and in severe pain, supports the theory that

Mr. McGill’s death was unintentional.           In other words, unlike

Fisher where the defendant’s own actions conflicted with his claim

that he did not intend to kill the victim, the manner in which

defendant used the knife in the present case does not.               Fatal

consequences were not necessarily probable based on the manner in

which defendant used the knife.    Thus, I believe the facts at issue

here are distinguishable from those cases because the record

contains evidence other than defendant’s “mere claim of lack of

intent,” Debiase, 211 N.C. App. at 509, 211 S.E.2d at 444, that

supports defendant’s contention that he did not intend to kill or

injure Mr. McGill in any particular way.        Consequently, I believe

defendant’s   actions   fit   within   the   definition   of   involuntary

manslaughter when the evidence is taken in the light most favorable

to defendant.

                               Conclusion

     In summary, while acknowledging that there was contradictory

evidence presented at trial, I must respectfully dissent from the
                              -13-
majority as I believe that the trial court erred in not submitting

an instruction to the jury on involuntary manslaughter when taking

the evidence in the light most favorable to defendant.    Thus, I

would hold that defendant is entitled to a new trial.
