Unpublished Opinion No. 2003-UP-248
Submitted January 29, 2003 - Filed April 2, 2003

PER CURIAM: Kenji Manning was convicted of murder and two counts of assault with intent to kill. He received concurrent sentences of forty years for murder and ten years for each assault charge. Manning appeals.

Michael Bohn, his brother, and a friend were in line at a McDonald’s drive-thru when they were approached by Manning and his brother. As Manning and his brother ran towards the car, Michael and his friends drove out of the parking lot. [1] After Manning and his brother chased the car on foot for approximately twenty feet, they got into their own car and followed the victims for four miles, arriving at Michael’s house. Manning and his brother drove up to the end of Michael’s driveway. One of the victims testified that when Manning and his brother reached the end of the driveway, “they stopped and started firing.” The Mannings’ car then sped away.

While Michael’s brother and friend were not injured, Michael suffered a fatal shot to the head. The two men then broke into Michael’s house and called 9-1-1. Both of the surviving victims testified that, while there were rifles in the house, neither they nor Michael were armed that day. The victims also testified that the numerous .22 rifle shells in Michael’s yard were shells from an earlier target practice. [2]

Though Manning did not testify in his own defense, the State introduced the voluntary statement he gave to the police on the day after the incident. In his signed, handwritten statement, Manning admitted to shooting at the three victims on the evening in question. Manning said he recognized the victims as the individuals he had gotten into a fight with a couple of weeks before. He stated he and his brother attempted to talk to the victims at McDonald’s, then followed them home in order to ask them why “they tried to gang [him].” Once outside Michael’s house, Manning stated that he fired his gun in the direction of the victims only after he heard a gunshot. Manning stated that he did not want to shoot anyone, and that he was “trying to shoot back in the air at them and scare them.” Manning stated he fired “about 2 or 3 times in the air.”

Several police officers and investigators testified that no guns were found in Michael’s house or yard, and that the victims were unarmed. These individuals also testified that no shells or casings were found near the front of the house. Though there were .22 shells in the yard, most were along a fence in the backyard. The senior police investigator testified that, using bullet holes found in a building on Michael’s property, they were able to determine the bullets’ trajectory. He testified the bullets had been fired from the driveway.

After the defense rested its case, the trial judge denied the defense’s request to charge self-defense, finding the elements had not been satisfied. The defense then requested a charge for involuntary manslaughter, arguing Manning was “acting in his lawful capacity to defend himself.” The trial judge stated that, as he found a self-defense charge was not merited, he would not charge the jury on involuntary manslaughter. Manning was subsequently convicted of all three charges and received an aggregate sentence of forty years imprisonment.

Manning argues the trial court erred in failing to charge the jury on the law of (1) self-defense and (2) involuntary manslaughter.

“To warrant reversal, a trial judge’s refusal to give a requested charge must be both erroneous and prejudicial.” State v. Burkhart, 350 S.C. 260, 261, 565 S.E.2d 298, 302 (2002). “If there is any evidence in the record to support self-defense, the issue should be submitted to the jury.” Id. at 260-61, 565 S.E.2d at 302. A defendant is entitled to a self-defense charge where the evidence shows that: (1) he was without fault in bringing on the difficulty; (2) he actually believed he was in imminent danger of losing his life or sustaining serious bodily injury; and (3) a reasonably prudent person would have entertained the same belief. State v. Sullivan, 345 S.C. 169, 172-73, 547 S.E.2d 183, 184 (2001).

Manning’s actions on the night of the shooting do not satisfy the elements needed to justify a self-defense charge. First, Manning was not without fault in the events leading to Michael’s death. Manning originally approached the victims and chased them on foot out of the parking lot. Manning and his brother, while armed, then got into their car and chased the victims back to Michael’s house more than four miles away. Manning also admitted to shooting in the direction of the victims.

Second, Manning cannot sustain a claim that he believed he was in imminent danger of serious injury or death. There was no evidence that any of the three victims were armed at the time of the shooting or had threatened Manning with a weapon of any kind. Further, Manning traveled more than four miles to confront the victims and was inside his car when he opened fire. As Manning was already in his vehicle, he could have avoided the alleged “imminent danger” and left the scene.

Third, a reasonably prudent person in Manning’s situation would not have believed they were in imminent danger of serious injury or death. While Manning had a weapon, the victims were unarmed. Rather than shooting at the victims from inside his vehicle, Manning could have left the scene and avoided the incident.

Accordingly, the trial court did not err declining to charge the jury on the law of self-defense.

“To warrant reversal, a trial judge’s refusal to give a requested charge must be both erroneous and prejudicial.” State v. Burkhart, 350 S.C. 260, 261, 547 S.E.2d 298, 302 (2002). Involuntary manslaughter is (1) the unintentional killing of another without malice, but while engaged in an unlawful activity 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. See State v. Chatman, 336 S.C. 149, 152, 519 S.E.2d 100, 101 (1999).

The events that transpired on the night of the shooting do not satisfy either definition of involuntary manslaughter. The first definition is not satisfied because Manning, by firing several shots in the direction of three people, was engaged in an unlawful activity that easily could have, and did, result in death. The second definition does not apply in this case because Michael’s death did not occur while Manning was engaged in a lawful activity. As such, the evidence does not support a jury charge on the law of involuntary manslaughter. See State v. Chatman, 336 S.C. at 152, 519 S.E.2d at 101.

Further, Manning’s chief argument in support of a charge for involuntary manslaughter is that he did not intend to shoot anyone, but merely fired his gun into the air. However, the supreme court has held on multiple occasions that this scenario does not automatically merit a jury charge for involuntary manslaughter. See State v. Cooney, 320 S.C. 107, 112, 463 S.E.2d 597, 600 (1995) (“There is no error in the refusal to charge the law of involuntary manslaughter when the defendant admitted intentionally firing the gun, but claimed he only meant to shoot over the victim’s head.”); see also Bozeman v. State, 307 S.C. 172, 414 S.E.2d 144 (1992); State v. Craig, 267 S.C. 262, 227 S.E.2d 306 (1976).

Accordingly, the trial court did not err declining to charge the jury on the law of involuntary manslaughter.

[1] Michael’s brother testified that he believed Manning was going to retaliate for a fistfight that occurred between the two of them a couple of weeks earlier.

[2] Three individuals testified that the victims often had target practice in Michael’s backyard. One witness specifically stated that he used his .22 rifle in the backyard the day before the shooting.