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.

Herman Donald McKnight, Appellant.

Appeal From Florence County
Thomas A. Russo, Circuit Court Judge

Unpublished Opinion No.� 2011-UP-303�
Submitted February 1, 2011 � Filed June 17, 2011

AFFIRMED

Deputy Chief Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Melody J. Brown, all of Columbia; and Solicitor Edgar L. Clements, III, of Florence, for Respondent.

PER CURIAM:� Herman McKnight appeals from his convictions for murder, assault and battery of a high and aggravated nature (ABHAN), discharging a firearm into a dwelling, and possession of a firearm during a crime of violence.� He argues the trial court erred in refusing to instruct the jury on involuntary manslaughter.� We affirm.[1]

FACTS

On August 22, 2007, after Donna Floyd's wake, McKnight and his family gathered at the home Donna had lived in with her mother, Alice.� Donna was McKnight's daughter, and when Alice was sick with cancer, McKnight testified he asked Donna to live with them.[2]� McKnight often stayed at the home, but he also owned his own trailer where he stayed on occasion.� Linda McKnight, McKnight's eldest daughter, testified that she, along with Donna and their younger sister, Kathy, owned the house.[3]� Linda was also living in the home at the time of the incident.� Additionally, Donna's son, Jay Floyd, lived in the home, and on occasion, Donna's husband,[4] Stewart Floyd, stayed there as well.

McKnight wanted to drink a beer; however, Stewart objected to McKnight drinking in the home.� Sharon Floyd, a relative by marriage, testified McKnight said, "let's get the party going," meaning "he wanted to drink."� Sharon testified Stewart said, "I love you, . . . but we're not going to have that here tonight, tonight is not the night for that."� Jeanette Floyd, Stewart's mother, testified Stewart told McKnight, "I don't mean anything by this, but we don't feel up to any drinking and partying going on here tonight, and I'd like for you to leave."� Jeanette's husband, Lilton, said Stewart responded, "I don't mean no harm about it, I wish you . . . would go ahead and leave 'cause a wake is no place to be drinking."� Stewart angered McKnight by telling him what he could do in the home, so McKnight threatened Stewart and went to his vehicle to get his gun.� Sharon recalled that McKnight said he was going to get his gun and kill Stewart, and he went out the door.� Jeanette recollected that McKnight began cursing, looked at Stewart, pointed his finger, and said, "I'm going to kill your son of a bitching ass."� Lilton heard him say, "I'm gonna [sic] to kill you, you son of a bitch."� Donna's sister, Linda McKnight, testified she heard McKnight "threatened to blow [Stewart's] brains out" before running out the back door.� She feared McKnight was going to get a gun, so she went to the bathroom and called 911.� Mary Lee, the sister to a friend of McKnight's, testified she warned her brother, Joe Clark, to stop McKnight because she thought he was going to get a gun, and he appeared angry.

When McKnight returned with the gun, someone had locked the first back door, but McKnight kicked it in.� Jeanette grabbed the doorknob to the second back door and told McKnight he could not come in the home.� She testified he replied, "the hell I won't" and "reared the gun back and he shot through the door," hitting Jeanette's hand and arm.� Jeanette also heard Stewart cry out, and he "folded over . . . in his wheelchair."� She said she heard McKnight then say he was "going to kill the rest of these son of bitches."� Lilton testified when he got to the room, McKnight had shot Stewart and was standing over him "fixing to shoot him again."� Lilton's grandson, Ian Kinney, testified he saw McKnight "turn and stick the gun right at [Stewart's] side . . . [a]bout six to eight inches away," and shoot Stewart.� Another grandson of Lilton's, Nikki Kinney, testified he saw McKnight shoot Stewart.� Sharon and Linda testified they heard two gunshots, screaming, and chaos.� Lilton and Ian fought with McKnight to get the gun from him.� Stewart later died from his gunshot wounds.

Deputy Rollins Rhodes was the first to respond to the 911 call for help, and he found Stewart laying on his right side with a hole in his left side.� He recovered the sawed-off shotgun, observed the broken chairs, broken glass, and blood, and noted Jeanette's injuries.� Rhonda Morris, a responding EMT, testified Stewart was not breathing when she arrived, and although she detected some electrical activity from his heart, his heart was not beating.� Dr. Susan Presnell, a forensic pathologist, testified Stewart died of a "close range shotgun wound . . . to his left side," and he also had wounds indicative of pellet marks hitting his body from further away.

In his defense, McKnight admitted he was angry and threatened Stewart; left the house to get his shotgun from his truck; kicked open one door and shot open another; entered the kitchen; pumped the shotgun; and took the gun over to Stewart.� However, he claimed he was not going to kill Stewart and simply wanted to scare him, but Stewart grabbed for the gun, causing it to discharge accidentally.� McKnight recalled Linda to the stand, and she testified McKnight and Stewart "got along well" and did not have any "problems or issues."� On cross-examination, however, she stated she was afraid McKnight was going to kill Stewart that night.

The Florence County Grand Jury indicted McKnight for murder, assault and battery with intent to kill (ABWIK), discharging a firearm into a dwelling, and possession of a firearm during a crime of violence.� A trial was held June 25 to 27, 2008.� The jury found McKnight guilty as charged, with the exception of McKnight's charge for ABWIK, for which the jury found him guilty of the lesser offense of ABHAN.� The court sentenced him to life imprisonment for murder, and concurrent sentences of ten years imprisonment for ABHAN and discharging a firearm into a dwelling.[5]� This appeal followed.

STANDARD OF REVIEW

�In criminal cases, the appellate court sits to review errors of law only and is bound by the trial court's factual findings unless they are clearly erroneous.� State v. Bryant, 372 S.C. 305, 312, 642 S.E.2d 582, 586 (2007).� Thus, on review, the appellate court is limited to determining whether the trial court abused its discretion.� Id. �An abuse of discretion occurs when the court's decision is unsupported by the evidence or controlled by an error of law.� State v. Garrett, 350 S.C. 613, 619, 567 S.E.2d 523, 526 (Ct. App. 2002).

LAW/ANALYSIS

McKnight argues the trial court erred in refusing to instruct the jury on involuntary manslaughter.� We disagree.

The trial court's duty is to give a requested instruction that correctly states the law applicable to the issues and is supported by the evidence.� State v. Lee-Grigg, 374 S.C. 388, 405, 649 S.E.2d 41, 50 (Ct. App. 2007). �In determining whether the evidence requires a charge on involuntary manslaughter, this court must view the facts in the light most favorable to the defendant.� State v. Childers, 373 S.C. 367, 373, 645 S.E.2d 233, 236 (2007).� "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."� State v. Brayboy, 387 S.C. 174, 180, 691 S.E.2d 482, 485 (Ct. App. 2010).� The court's refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant to warrant reversal.� Lee-Grigg, 374 S.C. at 415, 649 S.E.2d at 55.

"Involuntary manslaughter is: (1) the unintentional killing of another without malice, but while engaged in an unlawful activity not amounting to a felony and not naturally tending to cause death or great bodily harm; or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others."� State v. Smith, 391 S.C. 408, 414, 706 S.E.2d 12, 15 (2011).� "To constitute involuntary manslaughter, there must be a finding of criminal negligence, statutorily defined as a reckless disregard of the safety of others."� State v. Crosby, 355 S.C. 47, 52, 584 S.E.2d 110, 112 (2003).� "Recklessness is a state of mind in which the actor is aware of his or her conduct, yet consciously disregards a risk which his or her conduct is creating." �State v. Pittman, 373 S.C. 527, 571, 647 S.E.2d 144, 167 (2007).� "[A] person can be acting lawfully, even if he is in unlawful possession of a weapon, if he was entitled to arm himself in self-defense at the time of the shooting." �Crosby, 355 S.C. at 52, 584 S.E.2d at 112.� "The negligent handling of a loaded gun will support a charge of involuntary manslaughter."� State v. Mekler, 379 S.C. 12, 15, 664 S.E.2d 477, 478 (2008).� "Additionally, evidence of a struggle over a weapon between a defendant and victim supports submission of an involuntary manslaughter charge."� Brayboy, 387 S.C. at 180, 691 S.E.2d at 485.

At the conclusion of the trial, McKnight requested charges on both voluntary and involuntary manslaughter.� McKnight argued he was entitled to the charge on involuntary manslaughter because there was evidence McKnight believed he had some ownership in the home and discharging a weapon in your home does not offend the statute against discharging a firearm into a dwelling,[6] there was evidence McKnight was reckless in his actions, and the struggle over the weapon supported the charge.� McKnight cited to Casey v. State, 305 S.C. 445, 447, 409 S.E.2d 391, 392 (1991), in which the court held "[e]vidence of a struggle between a defendant and a victim over a weapon is sufficient for submission of an involuntary manslaughter instruction to the jury."� The State responded that McKnight was engaged in an unlawful act, the felony of pointing and presenting a firearm;[7] therefore, he was not entitled to a charge of involuntary manslaughter.� See State v. Reese, 370 S.C. 31, 36, 633 S.E.2d 898, 901 (2006), overruled on other grounds by State v. Belcher, 385 S.C. 597, 685 S.E.2d 802 (2009) (noting it is a felony for a person to present or point at another person a loaded or unloaded firearm, and "there is no doubt that [appellant] was presenting a firearm when he took the gun out and began waiving [sic] it around. Therefore, [appellant] was pointing or presenting a firearm, a felony, which would preclude an involuntary manslaughter charge.").� The judge noted McKnight's request, but declined to charge involuntary manslaughter, instead charging voluntary manslaughter and accident.

On appeal, McKnight argues the court erred by refusing to charge the jury on involuntary manslaughter because there was evidence Stewart grabbed the gun, and it went off accidentally.� He asserts that evidence of a struggle over a gun is sufficient for the submission of an involuntary manslaughter instruction.� He also asserts there was evidence that his threat against Stewart was not taken seriously, and he only shot at the doorknob to open the locked door.� McKnight asserts he had a right to be in the house, he recklessly used the gun to shoot open the door, and he recklessly handled the gun so that it discharged when Stewart tried to grab the gun; therefore, he was entitled to an involuntary manslaughter charge.

McKnight cites to State v. Light, 378 S.C. 641, 664 S.E.2d 465 (2008), in support of his argument.[8] �In Light, the court found Light was entitled to an instruction on involuntary manslaughter despite "inconsistent stories" because there was evidence that Light was lawfully armed in self-defense at the time of the shooting.� 378 S.C. at 648, 664 S.E.2d at 468-69.� Light testified he took the gun from his girlfriend who was threatening him, and because the gun discharged almost immediately after he took possession of it, the court found there was evidence he recklessly handled the gun.� Id. at 648, 664 S.E.2d at 469.� The Light court noted "the negligent handling of a loaded gun will support a finding of involuntary manslaughter" and "the fact petitioner and [the victim] were struggling over the weapon is sufficient evidence to support an involuntary manslaughter charge to the jury."� Id. at 648-49, 664 S.E.2d at 469.

In Crosby, 355 S.C. at 52-53, 584 S.E.2d at 112, Crosby claimed he was trying to break up a fight when the decedent charged at him, so he removed a gun from his pocket in self-defense and pulled the trigger without realizing it.� Our supreme court determined Crosby was entitled to an involuntary manslaughter instruction because there was evidence from which the jury could infer that he did not intentionally shoot the gun.� Id. at 52-53, 584 S.E.2d at 112-13. �In Mekler, 379 S.C. at 16, 664 S.E.2d at 479, Mekler was arguing with the decedent and pulled out her gun for self-defense.� As she was holding the gun, it discharged accidentally, hitting the decedent.� Id.� Our supreme court found she was entitled to an instruction on involuntary manslaughter because there was evidence she was reckless in the handling of the gun.� Id.� Also, in State v. Brayboy, this court found there was evidence the victim pulled out the gun, the defendant struggled with the victim to obtain the gun, and in the moments after the defendant obtained possession of the gun, the weapon discharged; thus, evidence existed from which the jury could determine Brayboy was lawfully armed in self-defense, and he negligently handled the loaded gun causing it to discharge.� 387 S.C. at 182, 691 S.E.2d at 486.� Therefore, the court found evidence existed to support a charge on involuntary manslaughter.� Id. at 182, 691 S.E.2d at 487.

However, in State v. Brayboy, this court noted our supreme court's decision in Light "makes it clear the question is not whether one is acting in self-defense at the time of the shooting, but whether the defendant is lawfully armed at the time of the shooting."� Id.� Shortly after Brayboy, in State v. Gibson, this court determined the trial court had properly denied instructing the jury on involuntary manslaughter because, by the appellant's own admission, he had voluntarily and intentionally fired his weapon.� State v. Gibson, 390 S.C. 347, 358, 701 S.E.2d 766, 772 (Ct. App. 2010).� The court stated that "regardless of whether [one is] lawfully armed in self-defense, the essence of involuntary manslaughter is the involuntary nature of the killing."� Id. at 357, 701 S.E.2d at 771.�

Similarly, in State v. Cabrera-Pena, 361 S.C. 372, 381, 605 S.E.2d 522, 526 (2004), the supreme court found Cabrera-Pena was not entitled to a charge on involuntary manslaughter because:

Cabrera-Pena's conduct � leaving Alma at Applebee's and purchasing a handgun; loading the handgun; returning to the Applebee's parking lot to wait for Alma to exit the restaurant; calling her over to his van after she exited the restaurant; showing Alma the gun and then walking her back over to the truck where the friends were standing, prompting Alma to motion to them that he had a gun; and finally, shooting her in the eye, killing her � is not the type of conduct contemplated under either definition of involuntary manslaughter.�

The court explained:

Cabrera-Pena's conduct does not fit within the first definition of involuntary manslaughter because he was engaged in unlawful, felonious and harmful conduct.� At minimum, he used the loaded pistol to intimidate Alma and forcefully walk her over to the pickup truck where her friends were. �This conduct may be considered felonious under S.C. Code Ann. � 16-23-410 (1976) (pointing or presenting a firearm) . . . . Cabrera-Pena's conduct also does not fit within the penumbra of the second definition of involuntary manslaughter. �Cabrera-Pena was acting unlawfully when he took advantage of the unfair and extremely dangerous situation that he created by bringing a loaded, deadly weapon into a domestic dispute in a public place.� Moreover, this is not a type of involuntary manslaughter case where "a person can be acting lawfully, even if he is in unlawful possession of a weapon, if he was entitled to arm himself in self defense at the time of the shooting."� Cabrera-Pena presented no evidence that he was acting in self-defense.

Id. at 381-82, 605 S.E.2d at 526-27 (internal citations omitted).� Cabrera-Pena claimed Alma grabbed the gun from him, causing it to fire.� Id. at 375, 605 S.E.2d at 523.� The majority rejected the dissent's argument that mere evidence of negligent handling of a loaded gun will support a charge of involuntary manslaughter.� Id. at 382, 605 S.E.2d at 527.� The court concluded:��

It is patent that Cabrera-Pena's conduct in arming himself with a deadly weapon, to lay in wait for his wife, so that he could confront her, was not a lawful activity and, indeed, created a highly volatile and incendiary domestic situation that resulted in Alma's death.� Therefore, Cabrera-Pena was not entitled to an involuntary manslaughter charge.

Id. at 383-84, 605 S.E.2d at 528 (internal citation omitted).

Most recently, in Smith, 391 S.C. at 414, 706 S.E.2d at 15, our supreme court determined Smith was not entitled to an instruction on involuntary manslaughter because "there is no evidence to suggest that Smith was without fault in bringing on the difficulty, that he believed or actually was in imminent danger of losing his life or sustaining serious bodily injury, or that he 'had no other probable means of avoiding the danger' other than drawing the loaded weapon."�

Viewing the evidence in the light most favorable to McKnight, we find the facts do not support a charge of involuntary manslaughter. �McKnight admitted he was angry; told Stewart he was going to kill him; exited the house; returned with a gun; kicked open one door and shot open another door; and aimed the gun at Stewart, who was wheelchair-bound.� McKnight was convicted of discharging a firearm into a dwelling, a felony, and he did not argue that pointing a gun at Stewart was a lawful act.� McKnight testified he believed Stewart was frightened and thought McKnight intended to kill him.� The forensic pathologist testified that in addition to dying from a close range shotgun wound to his left side, Stewart also had wounds indicative of pellet marks hitting his body from further away.� Jeanette testified she heard Stewart cry out when McKnight shot through the door.� Additionally, there was no evidence that McKnight was acting in self-defense or that he acted recklessly in his handling of the gun.� In fact, McKnight's testimony was that Stewart grabbed for the gun and caused it to fire.� Therefore, because by McKnight's own admission he voluntarily and intentionally fired his gun to shoot open the door and then aimed the gun at Stewart, we find the court did not err in denying McKnight's request to charge the jury on involuntary manslaughter.

CONCLUSION

Accordingly, the trial court's rulings are

AFFIRMED.

HUFF, SHORT and PIEPER, JJ., concur.

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

[2] Alice passed away before Donna, and Donna was still living in the home at the time of her own death.

[3]� Linda testified Alice owned the house, and when Alice died, she and her sisters inherited the house.

[4]� Although they were not legally divorced, Donna and Stewart no longer lived together as husband and wife, in part due to an accident that left Stewart partially paralyzed and wheelchair-bound.

[5]� The sentence for McKnight's remaining conviction for possession of a firearm during a crime of violence was subsumed in the sentence for murder pursuant to section 16-23-490(A) of the South Carolina Code, which provides: "This five-year sentence does not apply in cases where the death penalty or a life sentence without parole is imposed for the violent crime."� S.C. Code Ann. � 16-23-490(A) (2003).

[6]� Section 16-23-440(A) of the South Carolina Code provides:� "It is unlawful for a person to discharge or cause to be discharged unlawfully firearms at or into a dwelling house, other building, structure, or enclosure regularly occupied by persons.� A person who violates the provisions of this subsection is guilty of a felony and, upon conviction, must be fined not more than one thousand dollars or imprisoned not more than ten years, or both."� S.C. Code Ann. � 16-23-440(A) (2003).

[7]� We note that McKnight was charged with and found guilty of discharging a firearm into a dwelling, not pointing and presenting a firearm; however, we find this distinction to be inconsequential because both crimes are felonies.��� Section 16-23-410 of the South Carolina Code provides: "It is unlawful for a person to present or point at another person a loaded or unloaded firearm.� A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than five years."� S.C. Code Ann. � 16-23-410 (2003).

[8] McKnight acknowledges that most involuntary manslaughter cases that involve a gun discharging arise in the context of criminal negligence while a person is allegedly acting in self-defense.� McKnight did not request a charge on self-defense.