PEOPLE OF MI V ROBERT L WAGNERAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 3, 1998
LC No. 96-006265
ROBERT L. WAGNER,
Before: Young Jr., P.J., and Wahls and Jansen, JJ.
Defendant appeals by right his conviction after a bench trial for second-degree murder, MCL
750.317; MSA 28.549. We affirm.
Defendant’s conviction arises from the murder by strangulation of his girlfriend. Defendant
contends that his second-degree murder conviction was not supported by the evidence where he was
provoked into committing the murder. We disagree.
When determining whether sufficient evidence has been presented to sustain a conviction, this
Court must view the evidence in a light most favorable to the prosecution and determine whether any
rational finder of fact could have found that the essential elements of the crime were proven beyond a
reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992).
Second-degree murder is established where the defendant causes a death with malice and
without justification or excuse. People v Harris, 190 Mich App 652, 659; 476 NW2d 767 (1991).
Malice is the intent to kill, the intent to do great bodily harm, or the intent to create a high risk of death
or great bodily harm with knowledge that such is the probable result. Malice may be inferred from the
facts and circumstances of the killing. Id. The trial court could properly infer malice from the act of
strangling decedent for four to five minutes prior to her death.
The provocation necessary to mitigate a homicide from murder to manslaughter is that which
causes the defendant to act out of passion rather than reason. People v Pouncey, 437 Mich 382, 389;
471 NW2d 346 (1991). The provocation must be adequate to cause a reasonable person to lose
control. Id. The evidence presented did not require the trial court to find that the necessary
provocation was present in this case.
/s/ Robert P. Young, Jr.
/s/ Myron H. Wahls
/s/ Kathleen Jansen