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.

Desmond Javon Sams, Appellant.

Appeal From Colleton County
Perry M. Buckner, Circuit Court Judge

Unpublished Opinion No. 2011-UP-205
Submitted February 8, 2011 � Filed May 4, 2011���

AFFIRMED

Senior Appellate Defender Joseph L. Savitz, and Appellate Defender Tristan M. Shaffer, both of Columbia, for Appellant.

Assistant Attorney General Mark R. Farthing, for Respondent.

PER CURIAM: Desmond Javon Sams appeals his conviction and sentence for voluntary manslaughter.� Sams contends the trial court committed reversible error by refusing to instruct the jury on involuntary manslaughter when the evidence arguably supported a factual finding that Sams unintentionally killed Jake Frazier (Victim) while acting in self-defense.� We affirm.[1]

The trial court charged murder, voluntary manslaughter, and self-defense, but declined to charge involuntary manslaughter.� The jury returned with a guilty verdict on the voluntary manslaughter charge.� Limited to the facts of this case, we hold the trial court did not err.� Sams's appellate brief does not articulate which definition of involuntary manslaughter he believes applies to the facts of his case.[2]� Therefore, we will proceed to analyze the facts of this case under both definitions. �

"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." �State v. Wharton, 381 S.C. 209, 216, 672 S.E.2d 786, 789 (2009).� "If there is any evidence warranting a charge on involuntary manslaughter, then the charge must be given."� Id.

Sams did not qualify for an involuntary manslaughter instruction under the first definition because his conduct in placing his arms around Victim's neck and holding Victim down for over eight minutes was of the type naturally tending to cause death or great bodily harm.� See Wharton, 381 S.C. at 216, 672 S.E.2d at 789 (defining involuntary manslaughter as "the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm"). �

This case can be factually distinguished from State v. Chatman, 336 S.C. 149, 519 S.E.2d 100 (1999).� Chatman accidentally strangled the victim by pressing his shoulder into the victim's neck while engaged in a fight with the victim on the ground.� Id. at 153, 519 S.E.2d at 101-02.� The supreme court noted Chatman's conduct was not such that naturally tended to cause death or great bodily harm because it was not a traditional strangulation-type situation involving the accused's hands placed around a victim's neck.� Id. at 153, 519 S.E.2d at 102. �Thus, Chatman was entitled to an involuntary manslaughter charge under the first definition.� Id.�

In contrast to Chatman, the present case is a traditional strangulation-type situation.� Sams wrapped both arms around Victim's neck and applied pressure for over eight minutes.� Sams continued to hold Victim face down in a choke hold even after Victim became "lifeless."� When the police arrived and asked Sams to release his hold on Victim, Sams was reluctant to do so.� Furthermore, Sams did not expressly argue below, nor does he suggest on appeal, that his actions were not of the type naturally tending to cause death or great bodily harm.� Even if Sams had raised this argument, this contention is manifestly without merit.� See Rule 220(b)(2) ("The Court of Appeals need not address a point which is manifestly without merit.").�

Sams was likewise not entitled to an involuntary manslaughter charge under the second definition.� See Wharton, 381 S.C. at 216, 672 S.E.2d at 789 (further defining involuntary manslaughter as "the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others").� Sams could only qualify for an involuntary manslaughter instruction under the second definition if he were acting lawfully in self-defense and unintentionally killed Victim.[3]�

Sams stated, "I wasn't choking him like hard to try to kill him" and "I wasn't trying to kill him."� Even assuming Sams was acting lawfully in defending himself, he admitted to intentionally choking Victim.� In addition, Sams exerted more force than was reasonably necessary to defend himself by wrapping his arms around Victim's neck for over eight minutes while Victim lay face down on the floor and begged for his life.� See State v. Campbell, 111 S.C. 112, 113, 96 S.E. 543, 543-44 (1918) ("A person assaulted, being without fault in bringing on the difficulty, has the right to use such force as is necessary for his complete self-protection, or which in the mind of a person of ordinary reason and firmness would reasonably prevent the assailant from taking his life or inflicting serious bodily harm.").

State v. Pickens, in which the defendant argued he shot a gun at his victim in self-defense, is analogous to the present case.� 320 S.C. 528, 531-32, 466 S.E.2d 364, 366-67 (1996).� In Pickens, refusal to charge involuntary manslaughter was proper because the defendant admitted he intentionally shot the gun at the victim.� Id.� Like Pickens, Sams was either not guilty by reason of self-defense, or guilty of voluntary manslaughter.� Id.� However, no evidence exists indicating Sams's actions were unintentional for purposes of an involuntary manslaughter charge.

This case is distinguishable from accidental trigger-pull gun cases where an involuntary manslaughter instruction is often deemed appropriate.� See, e.g., State v. Mekler, 379 S.C. 12, 15-16, 664 S.E.2d 477, 479 (2008) (explaining an involuntary manslaughter instruction was warranted when testimony supported defendant's assertion that she unintentionally shot victim while acting in reckless disregard for the safety of others by negligently handling a loaded shotgun); State v. Light, 378 S.C. 641, 648-49, 664 S.E.2d 465, 468-69 (2008) (holding an involuntary manslaughter instruction was warranted when defendant testified he was struggling with his girlfriend to take possession of a loaded shotgun when the gun unintentionally discharged); State v. Crosby, 355 S.C. 47, 53, 584 S.E.2d 110, 112-13 (2003) (finding defendant's contradictory statements that he pulled the trigger and did not intend to pull the trigger were sufficient to warrant a jury instruction on involuntary manslaughter).

Here, Sams admitted he intentionally choked Victim but suggested he did not choke him hard enough to kill him.� The intentional act of choking someone is evidence of malice, not reckless disregard for the safety of others, and a malicious killing is not an unintentional killing.� See Wharton, 381 S.C. at 216, 672 S.E.2d at 789 (defining involuntary manslaughter as "the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others") (emphasis added); see also Tate v. State, 351 S.C. 418, 426, 570 S.E.2d 522, 527 (2002) ("Malice is the wrongful intent to injure another and indicates a wicked or depraved spirit intent on doing wrong.").� Indeed, two eye-witnesses to the incident testified Sams told Victim "I'm going to . . . kill you" while engaged in the act of choking Victim.�

Because no evidence exists demonstrating that this was an unintentional killing under either definition of involuntary manslaughter, the decision of the trial court not to charge involuntary manslaughter is

AFFIRMED.�

WILLIAMS, GEATHERS, and LOCKEMY, JJ., concur.� �����

[1] �We affirm without oral argument pursuant to Rule 215, SCACR.

[2] �We are disturbed by the brevity of the legal argument in Sams's appellate brief, which consists of less than a page.

[3]� The trial court agreed to charge the jury on the law of self-defense, and the State did not object to this charge.��