COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Bray and 

 Senior Judge Overton∗

Argued at Norfolk, Virginia 

FEDRICO M. GILMORE 

 MEMORANDUM OPINION∗∗ BY 

v. Record No. 0709-98-1 JUDGE NELSON T. OVERTON 

 FEBRUARY 16, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK 

Westbrook J. Parker, Judge 

 Barrett R. Richardson (Richardson & Rosenberg 

LLC, on brief), for appellant. 

 Kathleen B. Martin, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 ∗Judge Overton participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

January 31, 1999 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401, recodifying Code 

§ 17-116.01:1. 

∗∗Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 

 Fedrico M. Gilmore (defendant) appeals his conviction for

the second degree murder of Laura Joyner. He contends that the 

trial court erred by refusing to instruct the jury on the 

elements of voluntary manslaughter. Because we hold the evidence 

did not warrant such an instruction, we affirm. 

 The parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedental 

value, no recitation of the facts is necessary. 
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 "It is well settled that a trial court must instruct the 

jury on a lesser-included offense if more than a scintilla of 

evidence supports it." Donkor v. Commonwealth, 26 Va. App. 325, 

330, 494 S.E.2d 497, 500 (1998) (citing Boone v. Commonwealth, 14 

Va. App. 130, 132, 415 S.E.2d 250, 251 (1992)). "In determining 

whether to instruct the jury on a lesser-included offense, the 

evidence must be viewed in the light most favorable to the 

accused's theory of the case." Lea v. Commonwealth, 16 Va. App. 

300, 305, 429 S.E.2d 477, 480 (1993) (citing Barrett v. 

Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986)). 

Therefore, we must examine the record for evidence that the 

defendant committed voluntary manslaughter. 

 To reduce a homicide from murder to manslaughter, the 

killing must have been committed in the heat of passion, upon 

reasonable provocation and without malice. See Barrett, 231 Va. 

at 105-06, 341 S.E.2d at 192. Defendant asserts on appeal that 

he killed Ms. Joyner because she called out the name of her 

boyfriend during intercourse and this drove him into a jealous 

rage. The record, however, belies his assertion. Ms. Joyner 

allegedly called out the name of her boyfriend while they were 

engaged in intercourse, yet defendant waited until after they had 

finished intercourse in order to strangle her. Defendant 

testified that Joyner's calling of another man's name didn't 

anger him, it "didn't really like tick me off, like tick me off, 

I could care, I could really care less, but it was just the 

point." Moreover, defendant and Ms. Joyner did not share a close 
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or emotional bond. Defendant described their relationship as 

"bam, bam, gone, that type." 

 According to defendant's own testimony he did not kill Ms. 

Joyner because he was angry, but just to make "the point." In 

these circumstances, we can discern no reasonable provocation for 

his actions nor find even a "scintilla" of evidence that 

defendant acted in the heat of passion. Because the evidence 

supports the trial court's decision to refuse the jury 

instruction, we affirm defendant's conviction. 

 Affirmed.