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2011-UP-466 - State v. Shirar

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.

Billy Jo Shirar, Appellant.


Appeal From Berkeley County
R. Markley Dennis, Jr., Circuit Court Judge


Unpublished Opinion No.  2011-UP-466
Submitted October 1, 2011 – Filed October 21, 2011


AFFIRMED


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

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.

PER CURIAM:  Billy Jo Shirar appeals his conviction for voluntary manslaughter, arguing the circuit court erred in instructing the jury on voluntary manslaughter when no evidence was presented showing Shirar acted in the heat of passion.  We affirm.[1]

The circuit court is required to charge only the correct and current law of South Carolina.  State v. Brown, 362 S.C. 258, 261-62, 607 S.E.2d 93, 95 (Ct. App. 2004).  Accordingly, if any evidence supports a jury charge, the circuit court should grant the request.  Id.  "An appellate court will not reverse the [circuit court's] decision absent an abuse of discretion."  State v. Pittman, 373 S.C. 527, 570, 647 S.E.2d 144, 166 (2007) (internal citations omitted).  "Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation."  State v. Cole, 338 S.C. 97, 101, 525 S.E.2d 511, 513 (2000).  An instruction on voluntary manslaughter is proper in a murder case unless no evidence tends to show the defendant acted in the heat of passion upon sufficient legal provocation.  See State v. Davis, 278 S.C. 544, 546, 298 S.E.2d 778, 779 (1983) (holding witness's testimony that defendant and victim had been fighting was circumstance of provocation and heat of passion and guilt of voluntary manslaughter could be logically deduced and was thus properly submitted to the jury).

The circuit court did not err in instructing the jury on voluntary manslaughter.  Shirar testified he was attacked by the victims, engaged in a violent "rumble," and "out of fear for [his] life" began stabbing his attackers.  According to Shirar, one of the victims was on top of him striking him when he began stabbing her.  Shirar further testified his first thought after the fight ended was "wow . . . what just happened."  Shirar's testimony provides evidence of sufficient legal provocation and that Shirar acted in the heat of passion.  See id.

AFFIRMED.

FEW, C.J., THOMAS and KONDUROS, JJ., concur.



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