THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
David Dwight Smith, Appellant.
Appeal From Spartanburg County
Doyet A. Early, III, Circuit Court Judge
Unpublished Opinion No. 2008-UP-194
Heard November 6, 2007 – Filed March 20, 2008
REVERSED AND REMANDED
Chief Attorney Joseph L. Savitz, III, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.
PER CURIAM: David Dwight Smith (Smith) was convicted of murder and possession of a firearm during the commission of a violent crime. He asserts on appeal the trial judge erred in refusing to instruct the jury on: 1) voluntary manslaughter, 2) involuntary manslaughter, and 3) accident. We reverse and remand.
STANDARD OF REVIEW
“In criminal cases, the appellate court sits to review errors of law only.” State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001); State v. Wood, 362 S.C. 520, 525, 608 S.E.2d 435, 438 (Ct. App. 2004). Generally, the trial judge is required to charge only the current and correct law of South Carolina. Sheppard v. State, 357 S.C. 646, 665, 594 S.E.2d 462, 472-73 (2004); State v. Brown, 362 S.C. 258, 261-62, 607 S.E.2d 93, 95 (Ct. App. 2004). “The law to be charged must be determined from the evidence presented at trial.” State v. Patterson, 367 S.C. 219, 231, 625 S.E.2d 239, 245 (Ct. App. 2006). If any evidence supports a jury charge, the trial judge should grant the request. Brown, 362 S.C. at 262, 607 S.E.2d at 95. “Due process requires that a lesser included offense be charged when the evidence warrants it but only if the evidence would permit a jury rationally to find the defendant guilty of the lesser offense.” State v. Small, 307 S.C. 92, 94, 413 S.E.2d 870, 871 (Ct. App. 1992). “To warrant reversal, a trial court's refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant.” Patterson, 367 S.C. at 232, 625 S.E.2d at 245.
Did the trial judge err in refusing to charge voluntary manslaughter, involuntary manslaughter, and accident?
First, Smith contends that his murder conviction should be reversed and remanded for a new trial based on the trial judge’s failure to charge the jury on the law of voluntary manslaughter. We agree.
Voluntary manslaughter is defined as the “unlawful killing of a human being in the sudden heat of passion upon sufficient legal provocation.” State v. Knoten, 347 S.C. 296, 302, 555 S.E.2d 391, 394 (2001). Both heat of passion and sufficient legal provocation must be present for the killing to constitute voluntary manslaughter. Id. at 302, 555 S.E.2d at 394; State v. Cole, 338 S.C. 97, 101-02, 525 S.E.2d 511, 513 (2000).
“[T]o warrant the Court in eliminating the offense of manslaughter it should very clearly appear that there is no evidence whatsoever tending to reduce the crime from murder to manslaughter.” State v. Gardner, 219 S.C. 97, 64 S.E.2d 130, 134 (1951) (citing State v. Norton, 28 S.C. 572, 6 S.E. 820 (1888)). Moreover, South Carolina case law consistently holds that a request to charge a lesser included offense is properly refused only when there is no evidence that the defendant committed the lesser rather than the greater offense. See State v. Goldenbaum, 294 S.C. 455, 457, 365 S.E.2d 731, 732 (1988). “In determining whether the evidence requires a charge on voluntary manslaughter, this Court must view the facts in the light most favorable to the defendant.” Cole, 338 S.C. at 101, 525 S.E.2d at 512-13 (citing State v. Byrd, 323 S.C. 319, 474 S.E.2d 430 (1996)).
The record supports a charge on the law of voluntary manslaughter. Smith claims the victim was attempting to rob him thereby provoking the altercation which he ultimately claims caused the alleged accidental shooting. Smith specifically testified that Finley “was coming toward me, the expression on his face and everything was a real serious demeanor, and I, you know, I didn’t know what to expect from him next: . . . [h]e looked like he was on something.” Smith further stated, “[a]s I said, he had this look about him, and he was approaching me. So, I took the gun out of my pocket hoping that if he saw it, that maybe he would cease.” Smith also testified that Finley “tries to knock the gun out my hand. He hit me with the left, with the left arm and grabbed me in my collar of the jacket . . . I thought I was gonna lose the gun. He had hit it and I got the grip on the gun and he’s got me . . . I went to defend myself. I threw my left arm over his, over his arm that he had me grab, and I hit him with the butt of the gun. . . . I was trying to get out of there . . . He was coming up on me, I was afraid. . . . I was hitting him with the gun and it went off and hit him in the face.”
This testimony, coupled with the testimony of Angie who described the encounter right before the shot was fired as two men scuffling and falling out of the trailer door, sufficiently depicts a fight between Finley and Smith immediately preceding the shooting and after Smith claimed Finley was trying to rob him. Thus, the record contains testimony from Smith that Finley initiated the physical confrontation by trying to rob him and aggressively approaching him. Smith testified he was trying to escape the situation and feared Finley would gain possession of the firearm. Moreover, Smith testified that the discharge of the pistol was a “[f]luke accident. I was hitting him with the gun and it went off and hit him in the face.” Smith testified “I didn’t intend to use it, and I never pointed it at him.”
The trial judge, in denying Smith’s request to charge voluntary manslaughter, determined that there was insufficient evidence to show sudden heat of passion although Smith claimed Finley tried to rob him and that they were fighting. In State v. Davis, 278 S.C. 544, 298 S.E.2d 778 (1983), the court found that a voluntary manslaughter charge was appropriate where “a witness testified that appellant and the victim had been ‘fighting.’ From this circumstance of ‘provocation’ and ‘heat of passion,’ guilt of voluntary manslaughter could be fairly and logically deduced and was thus a proper matter for jury determination.” Id. at 546, 298 S.E.2d at 779 (citing State v. Kahan, 268 S.C. 240, 233 S.E.2d 293 (1977)).
Viewing the case at hand in the light most favorable to Smith, the requested charge is appropriate. Cole, 338 S.C. at 101, 525 S.E.2d at 513. The trial judge charged self-defense but declined to also charge voluntary manslaughter. If the trial judge concluded, as the solicitor argued, that the element of legal provocation could not be simultaneously used in support of both self-defense as well as voluntary manslaughter, that conclusion nonetheless constitutes legal error.
Both self-defense and the lesser included offense of voluntary manslaughter should be submitted to the jury if supported by the evidence. State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981). The rationale for this rule is that the jury may fail to find all the elements of self-defense but could find sufficient legal provocation and heat of passion to conclude the defendant was guilty of voluntary manslaughter. Id.
State v. Gilliam, 296 S.C. 395, 396-97, 373 S.E.2d 596, 597 (1988).
Further, any concern about whether the defendant was acting with presumed malice (or a mandatory presumption of malice) as a matter of law because of the alleged commission of a felony has recently been answered and revisited by our supreme court in Lowry v. State, Op. No. 26436 (S.C. Sup. Ct. filed Feb. 11, 2008). In Lowry, the supreme court rejected the presumed malice (substantive rule of law) approach to the felony murder rule as unconstitutionally shifting the state’s burden of proof on the issue of malice. The court continues to adhere to precedent regarding the alternative inference of malice approach suggested in State v. Norris, 285 S.C. 86, 92, 328 S.E.2d 339, 342 (1985) (overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). Any implication of malice arising from an act occurring during the commission of a felony may be accepted or rejected by the jury as it deems appropriate.
We, therefore, respectfully find the trial judge should have instructed the jury on voluntary manslaughter and that Smith was prejudiced by the failure to charge the lesser offense. Because we reverse on the issue of voluntary manslaughter, we need not address the remaining issues presented. Whiteside v. Cherokee County School Dist. No. One, 311 S.C. 335, 340, 428 S.E.2d 886, 889 (1993) (appellate court need not address remaining issues when resolution of prior issue is dispositive).
We respectfully conclude the trial court erred in refusing to instruct the jury on voluntary manslaughter; we also find that Smith was prejudiced by this error. Therefore, we reverse the conviction and remand the case to the circuit court for a new trial. Furthermore, in reversing Smith’s murder conviction, we must also reverse the conviction for possession of a firearm during the commission of a violent crime because the former conviction is a prerequisite to the latter. E.g., S.C. Code Ann. § 16-23-490(E) (2003) (noting the additional punishment for possession of a firearm during the commission of a violent crime may not be imposed unless the defendant is convicted of the underlying violent crime); State v. Taylor, 356 S.C. 227, 235 n.4, 589 S.E.2d 1, 5 n.4 (2003) (noting defendant's conviction for possession of a weapon during the commission of a violent crime must be reversed where the court was reversing defendant's murder conviction). Based on the foregoing, Smith’s convictions are hereby
REVERSED AND REMANDED.
HUFF and PIEPER, JJ., and CURETON, A.J., concur.
 Since the appellant is referred to as “Smith” throughout this order and there are two key witnesses named Rodney Smith and Angie Smith, these witnesses will be referred to as Rodney and Angie respectively to avoid any confusion.
 No issues on appeal have been argued as to the judge’s charge of self-defense.