BAILEY, J.
. . . “In the case of voluntary manslaughter … sudden heat is a mitigating factor, not an element, that the State must prove in addition to the elements of murder. . . . [I]f there is no serious evidentiary dispute over sudden heat, it is error for a trial court to instruct a jury on voluntary manslaughter in addition to murder.” [Watts v. State, 885 N.E.2d 1228, 1231 (Ind. 2008)].. . . ..
The theory of McWhorter’s defense was that an accidental shooting had occurred; defense counsel employed an “all or nothing” strategy seeking acquittal while realizing that the jury might instead convict McWhorter of Murder. The State did not initially charge McWhorter with Voluntary Manslaughter, and the trial court could properly have given a Voluntary Manslaughter instruction over McWhorter’s objection only in the face of a serious evidentiary dispute as to whether the lesser offense was committed but the greater was not. See id. An unsupported Voluntary Manslaughter instruction deprives the defendant of the opportunity to pursue a legitimate trial strategy. Id. at 1233.
Here, any testimony that might have arguably approached evidence of “sudden heat” was elicited by the State from McWhorter’s grandmother. She testified that McWhorter and Deweese had argued about Deweese having a sexual encounter with someone other than McWhorter while she was pregnant with McWhorter’s child. McWhorter had expressed anger by stepping on and throwing Deweese’s engagement ring. Anger alone is not sufficient to support an instruction on sudden heat; nor will words alone constitute sufficient provocation to warrant the instruction, particularly when the words at issue are not intentionally designed to provoke the defendant. Suprenant v. State, 925 N.E.2d 1280, 1282 (Ind. Ct. App. 2010), trans. denied. In Suprenant, a panel of this Court concluded that alleged provocation “comprised of words ending a relationship accompanied by preparations to leave” did not constitute “sudden heat” justifying a Voluntary Manslaughter instruction. 925 N.E.2d at 1284. In this case, there was merely a verbal admission. Although Deweese had admitted to being with a man other than McWhorter at some time in the past, there is no evidence that she offered any provocation whatsoever beyond “mere words.” The Voluntary Manslaughter instruction lacked evidentiary support.
Moreover, the instruction prescribed sequential error for jury deliberation. Final Instruction No. 3 provided in relevant part:
The Defendant is charged with murder. Voluntary manslaughter and reckless homicide are lesser included offenses in the charge of murder. If the State proves the Defendant guilty of murder, you need not consider the included crimes. However, if the State fails to prove the Defendant committed murder, you may consider whether the Defendant committed voluntary manslaughter or reckless homicide, which the Court will define for you.
You must not find the Defendant guilty of more than one crime.
The statute defining the offense of Murder which was in force at the time of the offense charged reads as follows:
35-42-1-1. Murder A person who: knowingly … kills another human being … commits murder, a felony.
To convict the Defendant, the State must have proved each of the following elements:
1. The Defendant
2. knowingly
3. killed Amanda L. Deweese
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of murder, a felony, as charged in the Information.
You may then consider any included crime. The crime of voluntary manslaughter is included in the charged crime of murder. Voluntary manslaughter is defined by statute as follows:
A person who knowingly … kills another human being while acting under sudden heat commits voluntary manslaughter, a Class B felony. The offense is a Class A felony if it is committed by means of a deadly weapon.
Sudden heat is a mitigating factor that reduces what otherwise would be murder to voluntary manslaughter. The State has the burden of proving beyond a reasonable doubt that the Defendant was not acting under sudden heat.
Before you may convict the Defendant, the state must have proved each of the following beyond a reasonable doubt:
1. The Defendant
2. knowingly
3. killed
4. Amanda Deweese
5. and the Defendant was not acting under sudden heat
6. and the Defendant killed by means of a deadly weapon.
If the State failed to prove each of elements 1 through 4 of the crime of murder beyond a reasonable doubt, you must find the Defendant not guilty of murder as charged.
If the State did prove each of elements 1 through 4 and element 6 beyond a reasonable doubt, but the State failed to prove beyond a reasonable doubt element 5, you may find the Defendant guilty of voluntary manslaughter, a Class A felony, a lesser included offense of murder. If this is your finding but that the Defendant did not do so by means of a deadly weapon, you may find the Defendant guilty of voluntary manslaughter, a Class B felony, a lesser included offense of murder. If the State proves the Defendant guilty of voluntary manslaughter, you need not consider the next included crime.
If the State did prove each of elements 1 through 5 beyond a reasonable doubt, you may find the Defendant guilty of murder, a felony.
(App. 25-26.) (emphasis added.)
As such, the inartfully drafted instruction directed the jury to proceed, upon a failure of proof of one or more of the elements of Murder, to consider the lesser charge of Voluntary Manslaughter. However, the only element in dispute was intent. The jury was led by the sequential error of the instruction to, as a practical matter, find that McWhorter did not knowingly or intentionally kill Deweese, but that he did knowingly or intentionally kill Deweese while acting in sudden heat. That which does not exist cannot be mitigated. Counsel’s failure to object was deficient performance.
ROBB, C.J., and MATHIAS, J., concur.