PEOPLE OF MI V ROBERT L WAGNER

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED November 3, 1998 Plaintiff-Appellee, v No. 202445 Recorder’s Court LC No. 96-006265 ROBERT L. WAGNER, Defendant-Appellant. Before: Young Jr., P.J., and Wahls and Jansen, JJ. MEMORANDUM. 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 -1­ control. Id. The evidence presented did not require the trial court to find that the necessary provocation was present in this case. Affirmed. /s/ Robert P. Young, Jr. /s/ Myron H. Wahls /s/ Kathleen Jansen -2­

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