State v. Call

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-706
NORTH CAROLINA COURT OF APPEALS
Filed: 18 Mar 2014
STATE OF NORTH CAROLINA

Rowan County
v.
No. 10 CRS 53951

LARRY WAYNE CALL

Appeal by defendant from judgment entered 9 November 2012

by Judge W. David Lee in Rowan County Superior Court. Heard in

the Court of Appeals 7 November 2013.

Attorney General Roy Cooper, by Special Deputy Attorney
General Steven M. Arbogast, for the State.

Michael E. Casterline for Defendant.

ERVIN, Judge.

Defendant Larry Wayne Call appeals from a judgment

sentencing him to life imprisonment without the possibility of

parole based upon his conviction for first degree murder in

connection with the death of Kevin Michael Rufty. On appeal,

Defendant contends that the trial court erred by failing to

instruct the jury concerning the issue of his guilt of the

lesser included offense of second degree murder on the grounds

that he specifically requested that such an instruction be given

and on the grounds that the record would have supported a
 -2-
decision to convict him of second degree murder. After careful

consideration of Defendant’s challenge to the trial court’s

judgment in light of the record and the applicable law, we

conclude that the trial court’s judgment should remain

undisturbed.

I. Factual Background

A. Substantive Facts

1. State’s Evidence

Tamara Lee Propst and Defendant lived together and held

themselves out as a married couple, in Faith, North Carolina,

despite the fact that they were not married. By June 2010, the

relationship between Ms. Propst and Defendant had become

“rocky.” Even though Ms. Propst was involved in a romantic

relationship with Defendant, she worked as a prostitute to earn

money to support her drug habit and was involved in a sexual

relationship with Mr. Rufty as well. Mr. Rufty, who worked as a

long distance truck driver, was not one of Ms. Propst’s

“customers.” At some point in time, Ms. Propst introduced

Defendant to Mr. Rufty.

On Saturday, 26 June 2010, Ms. Propst was socializing at

the home of another friend named Tommy Ridenhour. While she was

at Mr. Ridenhour’s residence, Ms. Propst received numerous calls

from Defendant, who asked her to come home so that the two could

attempt to resolve their disagreements and so that he could
 -3-
obtain possession of the Mazda automobile that the two of them

shared. Instead of telling him where she was, Ms. Propst

informed Defendant that she was out of town and did not have

sufficient fuel to make it back home. Subsequently, Ms. Propst

went to a motel with a number of other individuals, including

Mr. Rufty and Anthony Witte, to consume drugs. After leaving

the motel, Mr. Rufty drove Ms. Propst to a lake in order to find

a secluded place at which they could engage in sexual

intercourse.

After reaching the lake, Ms. Propst and Mr. Rufty drank

alcohol, consumed drugs, and engaged in sexual intercourse.

Although Mr. Rufty attempted to have anal intercourse with Ms.

Propst during their encounter, she was not amenable to engaging

in that sort of activity. As a result, Ms. Propst struck Mr.

Rufty and began walking up the road while donning her clothes.

After getting in his car, Mr. Rufty drove up beside Ms. Propst,

apologized for his conduct, and asked her to get in the vehicle.

In response to his entreaties, Ms. Propst eventually entered Mr.

Rufty’s vehicle and had him take her to the residence of David

Brown, who was another one of her friends.

Ms. Propst eventually got a ride back to Mr. Ridenhour’s

home, at which she had left the Mazda. After her arrival, Ms.

Propst told Mr. Ridenhour what Mr. Rufty had tried to do. At

some point during the evening, Ms. Propst went to sleep. Upon
 -4-
awakening the following morning, Ms. Propst found that the same

individuals who had been at the motel on the previous day were

at Mr. Ridenhour’s residence.

In the course of that morning, Defendant called Ms. Propst

and asked her for directions to Mr. Ridenhour’s residence.

However, Ms. Propst refused to provide Defendant with that

information. Subsequently, someone began banging on the door.

After Mr. Ridenhour answered the door, Defendant, who appeared

to have overheard a conversation through an open window

concerning what had happened to Ms. Propst, pushed himself

inside while carrying a cooler and a knife. The fact that

Defendant was armed was not unusual.

As he entered Mr. Ridenhour’s residence, Defendant was

yelling, demanding to be told the identity of the person who had

assaulted Ms. Propst, and asserting that he would physically

harm the person who had wronged her. Although Defendant asked

for Mr. Rufty’s telephone number, Ms. Propst claimed that she

did not have the requested information in her possession.

However, Mr. Witte provided Defendant with Mr. Rufty’s number.1

After Defendant made an unsuccessful attempt to reach Mr. Rufty

by phone, Defendant and Ms. Propst left Mr. Ridenhour’s

residence and went home. Defendant made numerous statements
1
Mr. Witte testified that he gave Mr. Rufty’s telephone
number to Ms. Propst, but did not provide this information to
Defendant.
 -5-
that he was going to hurt Mr. Rufty during the course of his

sojourn at Mr. Ridenhour’s residence.

After returning home, Defendant received a phone call.

During the course of his discussion with the caller, Defendant

gave someone directions about how to reach the house at which he

and Ms. Propst lived. At the conclusion of this conversation,

Defendant grabbed his cooler and some beer and told Ms. Propst

that his ride had arrived and that he had to leave. As

Defendant left, he told Ms. Propst that she might have to come

pick him up at a later time. Upon looking out the window, Ms.

Propst observed that Defendant, who was wearing a white shirt,

white shoes, blue jean shorts, and a knife sheath, was leaving

with Mr. Rufty. In light of the disparity between their

respective sizes, Ms. Propst believed that Mr. Rufty would hurt

Defendant if the two of them became involved in an altercation.

Although Ms. Propst had agreed to pick Defendant up, she had no

intention of actually carrying out that promise.

After Defendant’s departure, Ms. Propst decided to go to

the residence of one of her “customers.” While she was en

route, Defendant called Ms. Propst and obtained her agreement to

pick him up in a few minutes. In the course of their

conversation, Defendant also told Ms. Propst that he stabbed

“the guy” several times, that he had blood all over himself,

that he did not know what to do with the knife with which he had
 -6-
stabbed the other individual, that the injured individual had

driven off, and that he heard the injured individual become

involved in an automobile accident. Defendant told Ms. Propst

that he was on the Third Street bridge, which was close to Grubb

Ferry Road, and stated that, if anyone questioned her about his

whereabouts, Ms. Propst should say that he had been fishing all

day.

In spite of her promise to Defendant, Ms. Propst continued

driving to her “customer’s” residence. As a result of the fact

that Defendant kept calling her, Ms. Propst turned off her

phone. Ms. Propst did not believe that Defendant had actually

killed anyone given that she had never observed him act in an

aggressive manner towards anyone except herself.

After Ms. Propst failed to honor her promise to come get

him, Defendant called Jessie Brady, one of his co-workers, and

asked her to come to the Third Street bridge and give him a

ride. At the time that Ms. Brady picked Defendant up, he was

shirtless and had a blood-smeared face. As they drove off,

Defendant refused to look at a wreck that they passed on Grubb

Ferry Road. Defendant did, however, tell Ms. Brady that he had

been in a fight with someone, that someone had been stabbed in

the fight, and that he had left a knife and a cooler in the

woods. In addition, Defendant told Ms. Brady that Mr. Rufty had
 -7-
been Ms. Propst’s drug dealer and that Defendant did not like

Mr. Rufty.

At approximately 3:45 p.m., Jacqueline Bush, who lived on a

street parallel to Grubb Ferry Road, saw Mr. Rufty’s vehicle

beside the road. Ms. Bush did not call for emergency

assistance. Almost simultaneously, Felicia Smith, who was

employed as a nurse at Liberty Commons Health Care and was

accompanied by her boyfriend, saw Mr. Rufty’s car on the side of

Grubb Ferry Road against a tree with its motor running as she

traveled to take her vehicle to a mechanic. In light of her

belief that a motor vehicle accident had occurred and the fact

that the occupant of the vehicle did not respond when she blew

her horn and yelled at him, Ms. Smith called for emergency

assistance.

Upon arriving at the scene at which Mr. Rufty’s car had

been discovered shortly after 4:00 p.m., emergency medical

personnel observed that Mr. Rufty’s vehicle had collided with a

tree at a low rate of speed and that Mr. Rufty, who had

sustained lacerations to his neck, arms, head, and, hands, was

unresponsive. In addition, emergency medical personnel observed

that Mr. Rufty’s seatbelt had been punctured and that there were

copious amounts of wet and dried blood on Mr. Rufty’s left

torso. Mr. Rufty was pronounced dead at the scene, with his

death having been caused by multiple stab wounds.
 -8-
As they examined the scene at which Mr. Rufty’s vehicle had

been discovered, investigating officers spoke with someone who

had called Mr. Rufty’s telephone in an attempt to locate him and

to ascertain if he was safe. In response to that call, the

investigating officers set up a meeting with Mr. Witte and his

girlfriend, Tonya Oliver. As a result of the conversations

that they had with these individuals and another individual

named Neal Rankin, the investigating officers decided to speak

with Defendant and Ms. Propst, arrived at their residence at

approximately 10:00 p.m., and discovered that Defendant was at

home.

After the investigating officers told him that they were

looking for Ms. Propst, Defendant asked if their interest in Ms.

Propst was related to the stabbing incident and agreed to go to

the Rowan County Sheriff’s Office for the purpose of answering

the officers’ questions. During his conversation with the

investigating officers, Defendant stated that he had been

fishing during the morning because it was too early to purchase

alcohol. A subsequent examination of Defendant’s fishing rods

revealed the presence of spider webs, a fact that suggested that

they had not been used for some time. A DNA analysis of

material taken from Defendant’s shoes revealed the presence of

Mr. Rufty’s blood. The investigating officers never found
 -9-
Defendant’s shirt, knife, or cooler despite an intensive search

of the area in which Mr. Rufty’s vehicle was discovered.

2. Defendant’s Evidence

Defendant had been involved in a romantic relationship with

Ms. Propst for over 20 years. By June of 2010, the relationship

between the two had become rocky because Ms. Propst would

disappear for days at a time as the result of her drug

consumption. In addition, Ms. Propst suffered from occasional

hallucinations.

On 25 June 2010, Defendant lost his job at a mobile home

manufacturing facility. On the following morning, he and Ms.

Propst began their day by smoking crack cocaine. After

finishing their supply of crack cocaine, Defendant and Ms.

Propst went to purchase more cocaine from Mr. Rufty, to whom Ms.

Propst introduced him on that occasion. After completing this

cocaine transaction, Defendant and Ms. Propst returned to their

home in order to use the drugs that they had purchased.

At a later time on that same morning, Defendant and Ms.

Propst went to a BP service station. After Defendant finished

paying for the fuel that he had bought, he discovered that Ms.

Propst was no longer present. Instead, Ms. Propst had taken the

Mazda, which they shared, leaving him stranded at the service

station. Upon making this discovery, Defendant began calling

Ms. Propst’s cell phone in an attempt to find her. As a result
 -10-
of the fact that he was unable to locate Ms. Propst, Defendant

spent the remainder of the day drinking and consuming drugs.

On Sunday, 27 June 2010, Ms. Propst called Defendant and

led him to believe that she had been raped. After speaking with

Ms. Propst, Defendant obtained a ride to Mr. Ridenhour’s

residence. Defendant was upset at the time of his arrival at

Mr. Ridenhour’s house on the grounds that, even though Ms.

Propst claimed that she had been raped, she was wearing a see-

through shirt in the presence of three men.

After Defendant asked Ms. Propst for Mr. Rufty’s number, he

obtained it from Mr. Witte, whom he had not previously met.

When his effort to contact Mr. Rufty by phone failed, Defendant

left a message in which he informed Mr. Rufty that he wanted to

speak with him about what happened during his encounter with Ms.

Propst. Although Ms. Propst returned home with Defendant, she

appeared to be unwilling to accept his suggestion that she

needed to report Mr. Rufty’s actions to a law enforcement agency

and have a sexual assault examination conducted.

At the time that Defendant made contact with Mr. Rufty, the

two men agreed to meet. Subsequently, Mr. Rufty came to the

residence that Defendant shared with Ms. Propst. When Mr. Rufty

arrived, Defendant greeted Mr. Rufty, gave him a beer, and got

into his car. Defendant denied having a cooler in his
 -11-
possession on that occasion and contended that he simply carried

a number of beers in his hand.

After Defendant entered Mr. Rufty’s vehicle, the two men

consumed a couple of beers apiece and discussed Mr. Rufty’s

encounter with Ms. Propst. Defendant believed that Mr. Rufty

was being honest during this discussion and was not angry at him

given that Defendant had seen Ms. Propst appearing braless and

wearing a see-through shirt in a house containing three men

earlier that day.

Eventually, Mr. Rufty drove to a parking area behind a

water plant off Grubb Ferry Road in order to meet someone.

While the two men waited for the individual that they were

supposed to meet, Defendant noticed Ms. Propst entering the area

in their Mazda. At the time that Ms. Propst arrived, there were

two other men in the vehicle, including Mr. Witte.

After the Mazda came to a stop, Mr. Witte exited the

vehicle and began walking towards Mr. Rufty’s car. As he did

so, Mr. Witte told Defendant that he needed to speak with Mr.

Rufty. In light of Mr. Witte’s statement, Defendant walked

towards the Mazda in order to ask Ms. Propst what was going on.

After reaching the location at which Ms. Propst was parked,

Defendant heard Mr. Rufty yell, “I didn’t do it.” At that

point, Mr. Witte exited Mr. Rufty’s vehicle, which began to

drive off with its tires “spinning.” Defendant noticed that Mr.
 -12-
Witte had blood on his hands and was holding a shiny object when

he got out of Mr. Rufty’s car. As Mr. Rufty drove away, Mr.

Witte returned to the Mazda and reentered the vehicle, which

drove away in a normal manner, leaving Defendant alone.

Shortly thereafter, Defendant heard Mr. Rufty’s car crash

at a location further down the road. As a result, he placed

multiple calls to Ms. Propst in an attempt to find out what had

happened and why he had been left by the side of the road.

Subsequently, Defendant made contact with Ms. Brady, who came

and picked him up.

Defendant denied telling Ms. Brady that he had been in a

fight or that he had stabbed anyone. As a result of the fact

that the day was an oppressively hot one, Defendant discarded

his shirt before Ms. Brady picked him up. Although Defendant

attempted to call the Rowan County Sheriff’s Office in response

to a voice mail message that he had received from an officer

affiliated with that agency, he failed to make contact with the

investigating officers because he had been calling the wrong

number.

After returning home, Defendant put on a shirt and went to

the fairgrounds to calm down. At approximately 10:30 p.m.,

investigating officers came to the residence that Defendant

shared with Ms. Propst. Defendant allowed the investigating

officers to search the residence and accompanied them to the
 -13-
Sheriff’s Office, where he submitted to an interview. During

the course of the interview, Defendant falsely told the

investigating officers that he had been fishing at the time that

Mr. Rufty was killed.

B. Procedural Facts

On 28 June 2010, a warrant for arrest charging Defendant

with the murder of Mr. Rufty was issued. On 6 July 2010, the

Rowan County grand jury returned a bill of indictment charging

Defendant with the murder of Mr. Rufty. The charge against

Defendant came on for trial before the trial court and a jury at

the 29 October 2012 criminal session of the Rowan County

Superior Court. On 9 November 2012, the jury returned a verdict

convicting Defendant of first degree murder. On the same date,

the trial court entered a judgment sentencing Defendant to a

term of life imprisonment without the possibility of parole.

Defendant noted an appeal to this Court from the trial court’s

judgment.

II. Legal Analysis

In his sole challenge to the trial court’s judgment,

Defendant contends that the trial court erred by failing to

submit the issue of his guilt of the lesser included offense of

second degree murder to the jury. According to Defendant, the

trial court should have allowed the jury to consider the issue

of his guilt of second degree murder on the grounds that the
 -14-
record contained sufficient evidence that a combination of

Defendant’s alcohol consumption, the fact that he was upset over

the loss of his job and Ms. Propst’s conduct, and the fact that

he killed Mr. Rufty in a fight would have supported the

submission of the issue of his guilt of second degree murder to

the jury. We do not find Defendant’s arguments to be

persuasive.

A. Relevant Legal Principles

According to well-established North Carolina law, the

offense of first degree murder consists, among other things, of

“the unlawful killing of another human being with malice and

with premeditation and deliberation,” while the lesser included

offense of second degree murder consists of “the unlawful

killing of another human being with malice but without

premeditation and deliberation.” State v. Watson, 338 N.C. 168,

176, 449 S.E.2d 694, 699 (1994) (citing N.C. Gen. Stat. § 14-17;

State v. Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154 (1991);

and State v. Robbins, 309 N.C. 771, 775, 309 S.E.2d 188, 190

(1983)), cert. denied, 514 U.S. 1071, 115 S. Ct. 1708, 131 L.

Ed. 2d 569 (1995), overruled in part on other grounds in State

v. Richardson, 341 N.C. 585, 597, 461 S.E.2d 724, 731 (1995).

“Premeditation means that [the] defendant formed the specific

intent to kill the victim for some period of time, however

short, before the actual killing,” while “[d]eliberation means
 -15-
that the intent to kill was formed while [the] defendant was in

a cool state of blood and not under the influence of a violent

passion suddenly aroused by sufficient provocation.” State v.

Misenheimer, 304 N.C. 108, 113, 282 S.E.2d 791, 795 (1981),

overruled on other grounds in State v. Weaver, 306 N.C. 629,

640-41, 295 S.E.2d 375, 381-82 (1982), overruled on other

grounds in State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188,

193 (1993). “[A] defendant who does not have the mental

capacity to form an intent to kill, or to premeditate and

deliberate upon the killing, cannot be lawfully convicted of

murder in the first degree, whether such mental deficiency be

due to a disease of the mind, intoxication, . . . or some other

cause.” State v. Cooper, 286 N.C. 549, 572, 213 S.E.2d 305, 320

(1975) (citing State v. Alston, 214 N.C. 93, 94, 197 S.E. 719,

720 (1938)), disapproved on other grounds in State v. Leonard,

300 N.C. 223, 230, 266 S.E.2d 631, 636, cert. denied, 449 U.S.

960, 101 S. Ct. 372, 66 L. Ed. 2d 227 (1980).

A trial court should instruct the jury concerning the issue

of the defendant’s guilt of a lesser included offense only if

“there is evidence from which the jury could find that such

included crime of lesser degree was committed.” State v. Ward,

286 N.C. 304, 311, 210 S.E.2d 407, 413 (1974) (quoting State v.

Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547 (1954)), vacated in

part on other grounds, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed.
 -16-
2d 1207 (1976). “Under North Carolina and federal law a lesser

included offense instruction is required if the evidence ‘would

permit a jury rationally to find [the defendant] guilty of the

lesser offense and acquit him of the greater.’” State v.

Thomas, 325 N.C. 583, 594, 386 S.E.2d 555, 561 (1989) (quoting

State v. Strickland, 307 N.C. 274, 286, 298 S.E.2d 645, 654

(1983), overruled in part on other grounds in State v. Johnson,

317 N.C. 193, 203, 344 S.E.2d 775, 781 (1986)). For that

reason, “[t]he determinative factor is what the State’s evidence

tends to prove,” with the trial court being required to “exclude

from jury consideration the possibility of a conviction of

second degree murder” “[i]f the evidence is sufficient to fully

satisfy the State’s burden of proving each and every element of

the offense of murder in the first degree, including

premeditation and deliberation, and there is no evidence to

negate these elements other than [the] defendant’s denial that

he committed the offense.” Strickland, 307 N.C. at 293, 298

S.E.2d at 658.

B. Standard of Review

“[Arguments] challenging the trial court’s decisions

regarding jury instructions are reviewed de novo by this Court.”

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149

(2009). “[A]n error in jury instructions is prejudicial and

requires a new trial only if ‘there is a reasonable possibility
 -17-
that, had the error in question not been committed, a different

result would have been reached at the trial out of which the

appeal arises.’” State v. Castaneda, 196 N.C. App. 109, 116,

674 S.E.2d 707, 712 (2009) (quoting N.C. Gen. Stat. § 15A-

1443(a)).

C. Evidentiary Analysis

In attempting to persuade us that the trial court should

have allowed the jury to consider the issue of his guilt of

second degree murder, Defendant contends that a combination of

his alcohol consumption, the fact that he was emotionally upset

as a result of the loss of his job and Ms. Propst’s conduct, and

the fact that he had been in a fight sufficed to support a

determination that he was guilty of second degree murder rather

than first degree murder. The fundamental problem with

Defendant’s argument is that a careful analysis of the record

indicates the complete absence of any evidentiary support for

such a conclusion.

As an initial matter, the record simply does not contain

any evidence to show that Defendant’s alcohol consumption had

anything to do with the killing of Mr. Rufty. Although

Defendant points to the fact that he had a cooler when he was at

Mr. Ridenhour’s home, that he purchased beer as soon as he could

legally do so on the day of the killing, and that he had beer in

his possession at the time that he rode off with Mr. Rufty, the
 -18-
record contains no indication that Defendant’s mental state was

actually affected by any alcohol that he might have consumed.

As a result, the fact that Defendant may have consumed alcohol

at or around the time that Mr. Rufty was killed does not provide

any support for Defendant’s challenge to the trial court’s

refusal to allow the jury to consider the issue of Defendant’s

guilt of second degree murder.

Similarly, the fact that Defendant might have been upset by

a number of factors, including the loss of his job, the

deterioration of his relationship with Ms. Propst, and the

manner in which Ms. Propst had been acting, does not support a

determination that the trial court should have allowed the jury

to consider the issue of Defendant’s guilt of second degree

murder. Simply put, the record contains no indication that

Defendant was upset over the loss of his job, the status of his

relationship with Ms. Propst, or the nature of the events in

which Ms. Propst had been involved at the time of the killing of

Mr. Rufty. Although the record does contain evidence tending to

show that Defendant was exceedingly angry when he entered Mr.

Ridenhour’s residence several hours before the killing of Mr.

Rufty, it is totally devoid of any indication that he continued

to be angry after that point. On the contrary, Defendant

testified that he was not angry with Mr. Rufty during the time

that he spent in Mr. Rufty’s vehicle in light of the manner in
 -19-
which Ms. Propst had been dressed at the time that he entered

Mr. Ridenhour’s residence. As a result, the fact that Defendant

had reason to be upset about a number of subjects does not

provide any support for his claim that the trial court should

have allowed the jury to consider the issue of his guilt of

second degree murder.

Finally, the fact that Defendant claimed to have killed Mr.

Rufty during a fight does not undercut the trial court’s

decision to refrain from instructing the jury concerning the

issue of his guilt of the lesser included offense of second

degree murder.

“[A]lthough there may have been time for
deliberation, if the purpose to kill was
formed and immediately executed in a passion,
especially if the passion was aroused by a
recent provocation or by mutual combat, the
murder is not deliberate and premeditated.
However, passion does not always reduce the
crime since a man may deliberate, may
premeditate, and may intend to kill after
premeditation and deliberation, although
prompted and to a large extent controlled by
passion at the time. If the design to kill
was formed with deliberation and
premeditation, it is immaterial that
defendant was in a passion or excited when
the design was carried into effect.” Thus a
killing committed during the course of a
quarrel or scuffle may yet constitute first
degree murder provided the defendant formed
the intent to kill in a cool state of blood
before the quarrel or scuffle began and the
killing during the quarrel was the product of
this earlier formed intent.
 -20-
Misenheimer, 304 N.C. at 113-14, 282 S.E.2d at 795 (alteration

in original) (citations omitted) (quoting State v. Faust, 254

N.C. 101, 108, 118 S.E.2d 769, 773, cert. denied, 368 U.S. 851,

82 S. Ct. 85, 7 L. Ed. 2d 49 (1961)). As we have already noted,

all of the evidence contained in the present record tends to

show that Defendant lured Mr. Rufty into coming to his residence

and drove off with Mr. Rufty after telling Ms. Propst that she

would need to come and retrieve him at a later time. The mere

fact that Defendant said that a fight occurred, without more,

does not in any way detract from this compelling showing that he

acted with premeditation and deliberation given the total

absence of any information concerning the circumstances

surrounding the manner in which the fight began or the events

that occurred during the fight. In fact, Defendant’s statement

is not in any way inconsistent with the idea that the “fight”

occurred when Mr. Rufty attempted to defend himself from an

attack launched by Defendant. As a result, the record contains

no support for Defendant’s contention that the trial court

should have allowed the jury to consider the issue of his guilt

of the lesser included offense of second degree murder on the

basis that he had been involved in a fight with Mr. Rufty.

In seeking to persuade us to reach a different result,

Defendant relies on this Court’s opinion in State v. Beck, 163

N.C. App. 469, 594 S.E.2d 94 (2004), rev’d in part on other
 -21-
grounds, 359 N.C. 611, 614 S.E.2d 274 (2005). The evidence

before this Court in Beck tended to show that the defendant

killed a neighbor who had attacked him after the defendant had

consumed alcohol. Beck, 163 N.C. App. at 471-72, 594 S.E.2d at

96. Although there are a limited number of surface similarities

between the facts at issue in Beck and those at issue here, Beck

is readily distinguishable from the present case given that the

record in Beck, unlike the record before us in this case,

contained evidence to the effect that the defendant was “very

drunk” when he went to see the victim prior to the confrontation

that resulted in the victim’s death and that the victim had

launched a physical attack upon the defendant. Id. at 473-74,

594 S.E.2d at 97. In this case, on the other hand, the record

contains no indication that Defendant was intoxicated or

emotionally upset at the time that Mr. Rufty was killed or that

Mr. Rufty had initiated any sort of altercation with Defendant.

As a result, whether the various arguments advanced by Defendant

are taken singly or in combination, we conclude that the trial

court did not err by declining to instruct the jury on the issue

of Defendant’s guilt of the lesser included offense of second

degree murder.

III. Conclusion

Thus, for the reasons set forth above, we conclude that the

trial court did not err by declining to instruct the jury
 -22-
concerning the issue of Defendant’s guilt of the lesser included

offense of second degree murder. As a result, the trial court’s

judgment should, and hereby does, remain undisturbed.

NO ERROR.

Judges GEER and STEPHENS concur.

Report per Rule 30(e).