Where defendant escalated a fight by handing her accomplice a loaded gun, sufficient evidence supports her conviction for first degree murder under the provocative act doctrine. When she saw that her boyfriend was losing a fight with the man they had planned to assault, appellant handed him a loaded rifle that she brought to the fight. The intended victim disarmed appellant’s boyfriend and shot and killed him. Appellant contended that her conviction of first degree murder of her boyfriend was not supported by sufficient evidence. Affirmed. The evidence supported the conclusion that defendant committed a provocative act that proximately caused the intended victim to kill appellant’s boyfriend. By bringing a loaded gun to the scene and handing it to her boyfriend, appellant deliberately escalated the level of violence of the encounter; this went beyond the acts necessary to “beat up” the victim and was “fraught with grave and inherent danger to human life.” Even though a provocative act may not be dangerous to human life in and of itself, it nonetheless may be likely to elicit a dangerous response under the circumstances in which it is committed.
The instructional error regarding the mens rea required for premeditated murder was harmless. When instructing the jury on the mental state required for premeditated murder, the court cross-referenced the instruction on attempted murder, which provided that the mens rea requirement could be met if either the defendant or her deceased accomplice acted with premeditation. This was error. To sustain a first degree murder under the provocative act doctrine, there must be proof that the defendant personally deliberated and premeditated the attempted murder that provoked a lethal response. However, the error was harmless. Appellant planned an ambush on an unsuspecting victim and gave a cocked rifle to an accomplice who had already stabbed the intended victim. Her actions before and during the attack made it clear beyond a reasonable doubt that she premeditated and deliberated the attempted murder of the intended victim.