NO. COA13-495

NORTH CAROLINA COURT OF APPEALS

Filed: 7 January 2013

STATE OF NORTH CAROLINA

v. Gaston County

No. 11 CRS 7113

ADRIAN TAREL EPPS,

Defendant.

Appeal by defendant from judgment entered 25 September 2012

by Judge Hugh B. Lewis in Gaston County Superior Court. Heard in 

the Court of Appeals 26 September 2013.

Attorney General Roy Cooper, by Special Deputy Attorney 

General Amar Majmundar, for the State.

Michael E. Casterline for defendant-appellant.

STEELMAN, Judge.

Where the evidence at trial showed that defendant acted 

voluntarily in stabbing McGill, resulting in his death, the trial 

court did not err in declining to instruct the jury on involuntary

manslaughter.

I. Factual and Procedural Background

On 6 May 2011, Adrian Tarel Epps (defendant) was hosting a 

social event at his house. One of the guests was defendant’s 

cousin, who brought her boyfriend, Antwan McGill (McGill). A fight 
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occurred in the yard between defendant and McGill, and defendant 

was beaten by McGill. Defendant returned to the house by the 

screen door to the kitchen. McGill followed defendant to the 

house. When McGill approached the screen door, defendant stabbed 

him through the door. McGill was dead on arrival at the hospital

emergency room. The coroner found McGill’s death to have resulted 

from a single stab wound.

Defendant was charged with first-degree murder. At the jury 

instruction conference, defendant requested an instruction on the 

lesser offense of involuntary manslaughter. The trial court denied 

that request. The trial court instructed the jury on first-degree 

murder, second-degree murder, and voluntary manslaughter, as well 

as the defenses of self-defense and the castle doctrine. On 25 

September 2012, the jury found defendant guilty of voluntary 

manslaughter. The jury also found the existence of two aggravating 

factors. The trial court found defendant to be a prior felony 

record level IV, and sentenced defendant to an aggravated range 

sentence of 121-155 months imprisonment.

Defendant appeals.
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II. Involuntary Manslaughter

In his sole argument on appeal, defendant contends that the 

trial court erred in refusing to instruct the jury on the lesser

offense of involuntary manslaughter. We disagree.

A. Standard of Review

“[Arguments] challenging the trial court’s decisions 

regarding jury instructions are reviewed de novo by this Court.” 

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 

(2009). “The prime purpose of a court’s charge to the jury is the 

clarification of issues, the elimination of extraneous matters, 

and a declaration and an application of the law arising on the 

evidence.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 

191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153 (1974). 

“[A] trial judge should not give instructions to the jury which 

are not supported by the evidence produced at the trial.” Id. 

“Where jury instructions are given without supporting evidence, a 

new trial is required.” State v. Porter, 340 N.C. 320, 331, 457 

S.E.2d 716, 721 (1995). 

B. Analysis

“An instruction on a lesser-included offense must be given 

only if the evidence would permit the jury rationally to find 

defendant guilty of the lesser offense and to acquit him of the 
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greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 

771 (2002). In the instant case, defendant contends that the 

evidence at trial would have permitted the jury to find defendant 

guilty of involuntary manslaughter and to acquit him of the other 

homicide charges.

“The elements of involuntary manslaughter are: (1) an 

unintentional killing; (2) proximately caused by either (a) an 

unlawful act not amounting to a felony and not ordinarily dangerous 

to human life, or (b) culpable negligence.” State v. Fisher, ___ 

N.C. App. ___, ___, 745 S.E.2d 894, 901 (2013) (quoting State v. 

Hudson, 345 N.C. 729, 733, 483 S.E.2d 436, 439 (1997)). Thus, for 

the jury to be given an instruction on involuntary manslaughter, 

there must have been evidence presented to show that (1) defendant 

lacked intent, and that (2) the action causing McGill’s death 

either (a) did not amount to a felony and was not ordinarily 

dangerous to human life, or (b) was the result of culpable 

negligence.

At trial, the evidence presented was that defendant fought 

with McGill, and that defendant retreated to the kitchen. The 

evidence further showed that defendant stabbed McGill through the 

screen door, that the knife had a 10-12 inch blade, that 

defendant’s arm went through the screen door up to the elbow, and 
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that the stab wound pierced McGill’s lung and nearly pierced his 

heart, and was approximately four and one-half inches deep. 

Defendant contends that he was intoxicated and barely aware of his 

actions; that he was afraid for his life and acting to fend off an 

attack; and that his actions were reckless but not intended to 

cause death.

Defendant relies on State v. Debiase, 211 N.C. App. 497, 711 

S.E.2d 436, disc. review denied, 365 N.C. 335, 717 S.E.2d 399 

(2011). In Debiase, defendant and the victim, guests at a party, 

got into an altercation, which concluded with defendant striking 

the victim with a bottle, inflicting an injury from which the 

victim eventually died. We held that:

despite the fact that Defendant acted 

intentionally at the time that he struck Mr. 

Lien with the bottle, the evidence contained 

in the present record is susceptible to the 

interpretation that, at the time that he 

struck Mr. Lien, Defendant did not know and 

had no reason to believe that the bottle would 

break or that the breaking of the bottle would 

inflict a fatal wound to Mr. Lien's neck. 

Death resulting from such a series of events 

would, under the previous decisions of this 

Court and the Supreme Court, permit an 

involuntary manslaughter conviction.

Debiase, 211 N.C. App. at 506, 711 S.E.2d at 442. We held that 

the trial court erred by declining to instruct the jury on the 
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lesser-included offense of involuntary manslaughter, and remanded 

for a new trial.

The facts of the instant case are distinct from those in 

Debiase. In Debiase, defendant was holding the bottle during the 

fight. As a result, the jury was permitted to consider the 

possibility that his use of the bottle was not intentional. In 

the instant case, however, defendant was not armed with the knife

during the fight, nor was defendant involved in an altercation at 

the time of the fatal stabbing. Sometime after the fight had 

ended, defendant was in the kitchen, inside of the house, when 

McGill approached the screen door. Defendant consciously grabbed

the knife, which he had not been previously holding, and stabbed 

McGill through the screen door.

Defendant cites us to numerous other cases with fact patterns 

similar to the facts in Debiase, reaching the same result. In 

each of those cases, a defendant instinctively or reflexively 

lashed out, involuntarily resulting in the victim’s death. In the 

instant case, however, defendant’s conduct was entirely voluntary. 

The evidence in the record shows that defendant’s conduct was 

intentional, and that the stabbing was not an action which was (a) 

not a felony, or (b) resulting from culpable negligence. Based 
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upon our review of the record, we see no evidence which would have 

merited an instruction on involuntary manslaughter.

We hold that the trial court did not err by refusing to 

instruct the jury on the lesser-included offense of involuntary 

manslaughter.

NO ERROR.

Judge BRYANT concurs.

Judge HUNTER, ROBERT C. dissenting.
NO. COA13-495

NORTH CAROLINA COURT OF APPEALS

Filed: 7 January 2014

STATE OF NORTH CAROLINA,

v. Gaston County

No. 11 CRS 7113

ADRIAN TAREL EPPS,

Defendant.

HUNTER, Robert C., Judge, dissenting.

Based on decisions by this Court and our Supreme Court and 

taking the evidence in the light most favorable to defendant, I 

believe the evidence would permit a reasonable jury to find 

defendant guilty of involuntary manslaughter. Consequently, I 

would conclude that the trial court committed reversible error in 

failing to charge the jury on involuntary manslaughter and that 

defendant is entitled to a new trial.

Background

On 6 May 2011, Adrian Epps (“defendant”) and his girlfriend, 

Jamie Vittatoe (“Ms. Vittatoe”), decided to have a small gettogether at their home near the town of Stanley, North Carolina. 

They invited defendant’s cousin Anitra Adams (“Ms. Adams”) who 

invited her boyfriend of two months Antwan Rashard McGill (“Mr. 

McGill”). After Ms. Adams and Mr. McGill arrived, around 8 or 9 

that night, Ms. Adams asked if defendant had any orange juice to 
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mix with vodka. Defendant replied that they did not; instead, he 

cut up lime wedges for her to squeeze into her drinks. Over the 

course of the evening, the couples drank alcohol and smoked 

marijuana. While no one was able to definitively establish how 

much the parties drank, several of the witnesses testified that 

both defendant and Mr. McGill were quite intoxicated. In fact, 

one witness testified that defendant was so intoxicated that he 

was “stumbling” around and fell down twice. Moreover, several 

witnesses claimed that Mr. McGill got sick in the bathroom from 

consuming too much alcohol. According to the postmortem toxicology 

report, Mr. McGill had a blood alcohol level of .16 and a small 

amount of Xanax in his system. 

At some point during the evening, defendant and Mr. McGill 

began arguing; the witnesses provided contradictory accounts of 

the altercation. Defendant contended that the argument started 

when Mr. McGill made a derogatory comment about Ms. Vittatoe. 

Defendant and Mr. McGill went outside where a physical fight 

ensued. Defendant claimed that Mr. McGill pulled his legs out 

from under him and beat him so severely that defendant passed out 

twice. When defendant woke up the first time during the fight, he 

felt “dizzy.” At this point, while defendant was still on the 

ground, Mr. McGill kicked him in the face, and defendant stated 
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that it felt like his face “exploded” and his ears began ringing. 

When he woke up the second time, defendant alleged that he saw Ms. 

Adams and Mr. McGill sitting in Ms. Adams’s car in the driveway. 

Defendant went back inside his house through a screen door located 

off a side porch. Defendant stated that he was in severe pain, 

his head was “killing” him, he felt lightheaded, and his vision 

was blurry. Defendant left the outside door propped open because 

he believed Mr. McGill and Ms. Adams were leaving. When he entered 

the kitchen, defendant and Ms. Vittatoe began cleaning the blood 

out of his mouth. Defendant heard footsteps outside on his 

driveway. He turned and saw Mr. McGill coming toward the screen 

door. Fearing that Mr. McGill was coming back to hurt him further 

or to harm Ms. Vittatoe, defendant ran to the screen door and held

it shut. During the struggle, defendant claimed he heard Ms. Adams 

yell something about a gun. At this point, defendant grabbed the 

knife he had used earlier to cut limes, turned, and stabbed once 

through the closed screen door. Defendant testified that he 

“wasn’t trying to pay attention to exactly where [he] might hit 

[Mr. McGill] at, or how hard [he] might’ve swung the knife, or 

anything like that.” Defendant went on to allege: 

I wasn’t trying to gauge I’m going to hit [Mr. 

McGill] here with [the knife], I’m going to 

hit him there with it, I’m going to use this 

much force, I’m not going to use that much 
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force, I’m going to pull back at this moment 

of that moment. None of that was going through 

my head. Only thing was going through my head 

was I need to protect myself. I was in fear 

for my life that it was going to either be my 

life or his life. 

Ms. Adams and Devan Williams, a friend of Mr. McGill’s, took 

Mr. McGill to the hospital where he was pronounced dead in the 

emergency room. According to the pathologist who performed the 

autopsy, Mr. McGill died as a result of excessive bleeding from a 

single stab wound in his upper chest. 

At trial, defendant requested the trial court instruct on 

involuntary manslaughter. However, the trial court denied his 

request because involuntary manslaughter did not “apply” and noted 

defendant’s objection for purposes of an appeal. The jury was 

instructed on first-degree murder, second-degree murder, voluntary 

manslaughter, and the defenses of self-defense and defense of 

habitation. The jury found defendant guilty of voluntary 

manslaughter. The trial court sentenced defendant to a minimum of 

121 months to a maximum of 155 months imprisonment. Defendant 

appealed.

Argument

Defendant’s sole argument on appeal is that the trial court 

committed reversible error by refusing to instruct the jury on 

involuntary manslaughter. Specifically, defendant contends that 
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although there was contradictory evidence presented at trial, 

there was sufficient evidence presented to permit the jury to find 

him guilty of involuntary manslaughter. Taking the evidence in 

a light most favorable to defendant, I agree. 

“[Arguments] challenging the trial court’s decisions 

regarding jury instructions are reviewed de novo by this Court.” 

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 

(2009). “An instruction on a lesser-included offense must be given 

only if the evidence would permit the jury rationally to find 

defendant guilty of the lesser offense and to acquit him of the 

greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 

771 (2002). “In determining whether the evidence is sufficient to 

support the submission of the issue of a defendant’s guilt of a 

lesser included offense to the jury, courts must consider the 

evidence in the light most favorable to the defendant.” State v. 

Debiase, 211 N.C. App. 497, 504, 711 S.E.2d 436, 441 (internal 

quotation marks omitted), disc. review denied, 365 N.C. 335, 717 

S.E.2d 399 (2011). Our Supreme Court has noted that “[c]onflicts 

in the evidence are for the jury to resolve, not this Court” when 

deciding whether the trial court erred in not submitting an 

instruction on involuntary manslaughter. State v. Lytton, 319 

N.C. 422, 427, 355 S.E.2d 485, 488 (1987). “It is reversible error 
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for the trial court to fail to instruct on a lesser offense when 

evidence has been introduced which supports the finding of such a 

lesser offense.” State v. Fisher, 318 N.C. 512, 524, 350 S.E.2d 

334, 341 (1986).

Involuntary manslaughter is a lesser included offense of 

second-degree murder and voluntary manslaughter. State v. Thomas, 

325 N.C. 583, 591, 386 S.E.2d 555, 559 (1989). Unlike voluntary 

manslaughter which requires that a defendant have an intent to 

kill, see State v. Wilkerson, 295 N.C. 559, 579, 247 S.E.2d 905, 

916 (1978), “involuntary manslaughter can be committed by the 

wanton and reckless use of a deadly weapon such as a firearm [see 

State v. Wallace, 309 N.C. 141, 305 S.E.2d 548 (1983)] or a knife 

[see State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979)][,]” 

State v. Buck, 310 N.C. 602, 605, 313 S.E.2d 550, 552 (1984).

Here, the evidence, when taken in the light most favorable to 

defendant, could support a verdict of involuntary manslaughter 

based on the theory that defendant killed Mr. McGill as a result 

of his reckless use of the knife. At trial, defendant’s own 

testimony establishes that he was not trying to intentionally 

inflict a fatal wound; specifically, defendant testified that he 

was not aiming at any particular area on Mr. McGill’s body or 

consciously using any specific amount of force. Instead, his 
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testimony indicates that he was acting instinctively and 

reflexively when he grabbed the knife, turned, and made a single 

stabbing motion toward Mr. McGill through a closed screen door. 

While it is uncontroverted that defendant intentionally used the 

knife, our Supreme Court has made it clear that the element of 

intent for purposes of manslaughter is whether the defendant 

intended to inflict a fatal wound, not whether the use of the 

weapon was intentional. See Buck, 310 N.C. at 607, 313 S.E.2d at 

553 (concluding that the trial court erred in not submitting the 

involuntary manslaughter instruction when “[the] defendant was 

wielding the butcher knife generally to defend against a felonious 

assault upon him, [but] the actual infliction of the fatal wound, 

according to [the] defendant, was not intentional”). While the 

testimony of other witnesses contradicts defendant’s testimony 

concerning his lack of intent to kill Mr. McGill, their testimony 

does not matter because the trial court must consider the evidence 

in a light most favorable to defendant. Thus, the conflict in the 

evidence was for the jury to resolve, not the trial court by 

refusing to submit the lesser included offense to the jury. 

Consequently, I believe that defendant’s own description of the 

events coupled with the fact that Mr. McGill was struck only once 

through a closed screen door during the altercation was enough to 
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warrant the submission of the involuntary manslaughter instruction 

to the jury. 

Unlike the majority, I believe the facts of these case are 

similar to those of Debiase. There, during an altercation, the 

defendant struck the victim with a beer bottle; although several 

of the witnesses claimed that the defendant struck him multiple 

times, defendant alleged to only have hit the victim once. 

Debiase, 211 N.C. App. at 499-501, 711 S.E.2d at 438-39. The 

victim died as a result of massive blood loss from a “gaping wound” 

on his neck. Id. at 498, 711 S.E.2d at 437-38. The victim also 

suffered a second, superficial wound on his head. Id. The 

pathologist who conducted the autopsy contended that both wounds 

could only have come from a broken beer bottle. Id. This suggested 

that the beer bottle broke at some point during the defendant’s 

altercation with the victim.

At trial, the court refused to give an instruction on 

involuntary manslaughter. This Court reversed, concluding that 

the evidence, when taken in the light most favorable to the 

defendant, had the tendency to show that the defendant did not 

intend to kill or seriously injure the victim. Id. at 504, 711 

S.E.2d at 441. In order to reach its conclusion, the Court 
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reviewed numerous decisions of both this Court and our Supreme 

Court noting, in pertinent part, that:

despite the fact that [the] [d]efendant acted 

intentionally at the time that he struck [the 

victim] with the bottle, the evidence 

contained in the present record is susceptible 

to the interpretation that, at the time that 

he struck [the victim], [the] [d]efendant did 

not know and had no reason to believe that the 

bottle would break or that the breaking of the 

bottle would inflict a fatal wound to [the 

victim’s] neck.

Id.

Like Debiase, I believe that the evidence in the present case 

was sufficient to support a reasonable conclusion that Mr. McGill’s 

death resulted from defendant’s reckless use of the knife. It is 

uncontroverted that defendant and Mr. McGill had been engaged in 

a physical altercation which resulted after both had been consuming 

alcohol and drugs for several hours. Defendant’s own testimony 

suggests that he reacted instinctively when he believed Mr. McGill 

was coming to hurt either himself or Ms. Vittatoe. In his 

testimony, defendant claimed that he struck at Mr. McGill without 

any conscious effort to hit him in any particular way. Moreover, 

the way in which he wounded Mr. McGill supports his contention 

that he was acting unintentionally. During the struggle, defendant 

swung the knife only once through a closed screen door. As a 

result, I believe the evidence in the present case was 
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“susceptible,” Debiase, 211 N.C. App. at 504, 711 S.E.2d at 441, 

to an interpretation that defendant did not intend to inflict a 

fatal wound when he swung once at Mr. McGill with the knife. 

Moreover, I disagree with the majority’s conclusion that 

Debiase is distinguishable because: (1) the altercation between 

Mr. McGill and defendant was over by the time defendant stabbed 

Mr. McGill; and (2) defendant had not been holding the knife when 

the fight began but, instead, grabbed it from the table once they 

were struggling at the door. While the fight between defendant 

and Mr. McGill had momentarily ceased at the time defendant entered 

his kitchen and began cleaning his wounds, Mr. McGill resumed his 

attack by trying to come in defendant’s home. In addition, while 

the majority is correct that the Debiase defendant had the bottle 

in his hand prior to the altercation intensifying, id. at 499-502, 

711 S.E.2d at 438-440, our Supreme Court has concluded that a 

defendant who grabs a weapon during the fight may still be entitled 

to the involuntary manslaughter instruction. See Buck, 310 N.C. 

at 603-604, 313 S.E.2d at 551-52 (holding that a defendant was 

entitled to an involuntary manslaughter jury instruction when the 

defendant’s testimony was that he “instinctively” grabbed a 

butcher knife off a table to scare the victim). Thus, as in 

Debiase, defendant produced sufficient evidence for a reasonable 
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jury to find him guilty of involuntary manslaughter, and the trial 

court erred in not giving the instruction on it.

In so concluding, I am mindful of other cases in which our 

Courts have held that a defendant was not entitled to an 

instruction on involuntary manslaughter when there was no evidence 

that the killing was unintentional other than the defendant’s own 

claim that he had not meant to kill and his actions were such that 

“[f]atal consequences were not improbable.” Fisher, 318 N.C. at 

526, 350 S.E.2d at 342. In Fisher, the defendant used a hunting 

knife during a fight and testified that he used it to 

“indiscriminately cut[] and jab[]” the victim. Id. While the 

defendant contended he was entitled to an instruction on 

involuntary manslaughter because the victim’s death was 

accidental, this Court disagreed, noting that 

In this case, the defendant admits that he 

knowingly slashed and stabbed the deceased 

with a hunting knife. The defendant’s use of 

a knife indicates a clear intent to inflict 

great bodily harm or death on the deceased. 

There can be no claim of accidental injury 

where one knowingly and willingly uses a knife 

to slash and stab his victim. Fatal 

consequences were not improbable in light of 

the defendant’s use of his hunting knife in 

such a manner. As such, the defendant’s 

actions would not fit within the definition of 

involuntary manslaughter and therefore the 

defendant would not qualify for such an 

instruction.
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Id. at 525-26, 350 S.E.2d at 342. 

Here, however, the manner in which defendant killed Mr. 

McGill, a single stabbing motion through a closed screen door 

during a struggle where both parties were intoxicated and defendant 

claimed to be “dizzy” and in severe pain, supports the theory that 

Mr. McGill’s death was unintentional. In other words, unlike 

Fisher where the defendant’s own actions conflicted with his claim 

that he did not intend to kill the victim, the manner in which 

defendant used the knife in the present case does not. Fatal 

consequences were not necessarily probable based on the manner in 

which defendant used the knife. Thus, I believe the facts at issue 

here are distinguishable from those cases because the record 

contains evidence other than defendant’s “mere claim of lack of 

intent,” Debiase, 211 N.C. App. at 509, 211 S.E.2d at 444, that 

supports defendant’s contention that he did not intend to kill or 

injure Mr. McGill in any particular way. Consequently, I believe 

defendant’s actions fit within the definition of involuntary 

manslaughter when the evidence is taken in the light most favorable 

to defendant. 

Conclusion

In summary, while acknowledging that there was contradictory 

evidence presented at trial, I must respectfully dissent from the 
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majority as I believe that the trial court erred in not submitting 

an instruction to the jury on involuntary manslaughter when taking 

the evidence in the light most favorable to defendant. Thus, I 

would hold that defendant is entitled to a new trial.