                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 07-5121


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

SAMUEL EDDIE PHEASANT,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:06-cr-00025-LHT-DLH-1)


Submitted:    March 13, 2009                   Decided:     April 2, 2009


Before KING and      SHEDD,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Randolph M. Lee, LAW OFFICES OF RANDOLPH M. LEE, Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina; Don D. Gast,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Following       a    jury    trial,     Samuel   Eddie    Pheasant    was

convicted of first degree murder and use of a firearm during and

in relation to a crime of violence, resulting in death.                         After

the court imposed sentence of life imprisonment plus ten years,

Pheasant noted an appeal.               He contends that the district court

abused its discretion by refusing to instruct the jury as to

voluntary     and    involuntary           manslaughter      as   lesser    included

offenses.    Finding no abuse of discretion, we affirm.

            An   instruction          on     a    lesser   included    offense     is

warranted only where the lesser included offense includes some,

but not all of the elements of the charged offense; the evidence

concerning the elements differentiating the two offenses is in

sharp   dispute;      and       the   jury       could   rationally   convict     the

defendant of the lesser offense and acquit him on the greater

offense.    United States v. Baker, 985 F.2d 1248, 1258-59 (4th

Cir. 1993).         This court reviews for abuse of discretion the

district court’s denial of a requested jury instruction.                      United

States v. Stotts, 113 F.3d 493, 496 (4th Cir. 1997).

            The distinction between murder and manslaughter is the

presence of malice.         Murder is the “unlawful killing of a human

being with malice aforethought.”                 Manslaughter is defined as the

“unlawful killing of a human being without malice.”                        18 U.S.C.

§ 1112(a) (2006).

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             Here, the evidence of malice was not contested.                            The

evidence showed that Pheasant took offense at something Dennis

Teesateskie       said    while    the     two    were   riding   to    a    convenience

store with Tracy West and Steven Kekahbah.                            Pheasant ordered

West to stop the truck.             When the truck eventually stopped for a

stop sign, Pheasant jumped out, wrapped a length of chain around

his hand and ordered Teesateskie off the truck.                              Instead of

Pheasant    punching       out     Teesateskie,        Pheasant   ended      up    on   the

ground.     After this outing, Pheasant met with Joseph Johnson and

discussed some yard work that Pheasant agreed to do for Johnson,

returned to his home, picked up his rifle and ammunition, and

went to the home of Teesateskie’s girlfriend in Big Cove.

             Teesateskie and his girlfriend and her children were

in a truck about to leave the girlfriend’s house.                        Pheasant, who

had already loaded the rifle, aimed the rifle at Teesateskie.

Teesateskie saw Pheasant and got off the truck; Pheasant shot

him.       When    later     asked    why        he   shot    Teesateskie,        Pheasant

replied, “because he pissed me off, man.”

             Contrary to Pheasant’s assertion, the evidence would

not support a verdict of voluntary manslaughter.                            There was no

“sudden quarrel” or “heat of passion.”                        See United States v.

Elk, 658 F.2d 644, 649 (8th Cir. 1981).                      Rather, the provocation

occurred    hours        earlier    when    Teesateskie        said    something        that

upset Pheasant and later punched Pheasant in the mouth.                              After

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those events, Pheasant went and discussed yard work he was to do

for Mr. Johnson, sitting and visiting with him for a while; he

also went home, collected his rifle and drove to Big Cove.                             This

evidence negates any assertion that the shooting was done in the

heat   of    passion    “without     deliberation          and     reflection.”         Id.

(citations omitted).

              Although Pheasant proposes that the killing shot was

fired as the two men fought over the rifle, this theory is

refuted by the evidence.             Pheasant admitted that he fired the

shot from twenty yards away.            Moreover, the forensic pathologist

testified     that     Teesateskie     died     of    a    single      gunshot    to    the

“upper abdomen, lower chest area” and that there was no soot

deposit on or near the wound, indicating that the shot was not

fired at close range.

              Additionally,      the    evidence           would       not    support     a

conviction for involuntary manslaughter.                         Pheasant asserts in

his brief that it is possible that he merely wished to talk to

Teesateskie and brought the rifle for protection.                            If this were

the case, the evidence could support a finding of self defense,

but    not    involuntary      manslaughter.              Or,    the   evidence       could

support a finding of a non-premeditated killing, which would be

second      degree   murder.       There       is    no    evidence      to    show    that

Pheasant engaged in an unlawful act, which is not a felony, or a

lawful act in an unlawful or reckless manner, which resulted in

                                           4
Teesateskie’s death.     We find that a rational jury could not

have found Pheasant guilty of involuntary manslaughter.

            Accordingly, we find that the district court did not

abuse its discretion in refusing to instruct the jury on the

voluntary    and   involuntary   manslaughter   as   lesser   included

offenses of murder.     See Stotts, 113 F.3d at 496.     We therefore

affirm Pheasant’s conviction for murder.        We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                              AFFIRMED




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