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2010-UP-406 - State v. Horton

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Larry Brent Horton, Appellant.


Appeal From Spartanburg County
 J. Derham Cole, Circuit Court Judge


Unpublished Opinion No.  2010-UP-406
Submitted September 1, 2010 – Filed September 16, 2010


AFFIRMED


Senior Appellate Defender Joseph L. Savitz, III, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Anthony Mabry, all of Columbia; and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.

PER CURIAM:  Larry Brent Horton appeals his murder conviction and life imprisonment sentence, arguing the trial court erred in refusing to charge the jury on voluntary manslaughter.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities:  State v. Cottrell, 376 S.C. 260, 262, 657 S.E.2d 451, 452 (2008) ("Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation.  In determining whether voluntary manslaughter should be charged as a lesser offense of murder, the court must view the evidence in the light most favorable to the defendant. The charge need not be given where it clearly appears that there is no evidence whatsoever tending to reduce the crime from murder to manslaughter.  We therefore review the evidence in the light most favorable to appellant, mindful that the charge request is properly rejected only where there is no evidence whatsoever of the lesser offense.") (internal citations and quotations omitted); State v. Smith, 363 S.C. 111, 115, 609 S.E.2d 528, 530 (Ct. App. 2005) ("'Both heat of passion and sufficient legal provocation must be present at the time of the killing.  The provocation must be such as to render the mind of an ordinary person incapable of cool reflection and produce an uncontrollable impulse to do violence.'") (quoting State v. Cooley, 342 S.C. 63, 67, 563 S.E.2d 666, 668 (2000)).

AFFIRMED.

FEW, C.J., HUFF and GEATHERS, JJ., concur. 


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.