concurring in the result.
I agree with Chief Judge Eagles’ opinion regarding the refusal to admit a synopsis of defendant’s statement to the police and the trial court’s denial of defendant’s motion to dismiss. I concur in the result as to the remainder of the opinion. I believe that the record contains insufficient evidence to support submission of the issue of self-defense to the jury and that the trial court therefore properly refused defendant’s request for an instruction on that defense. Although I would not reach the issue of the propriety of the involuntary manslaughter instruction, I cannot, in any event, agree with the dissent that submission of that issue constituted prejudicial error.
As our Supreme Court has held, “before the defendant is entitled to an instruction on self-defense, two questions must be answered in the affirmative: (1) Is there evidence that the defendant in fact formed a belief that it was necessary to kill his adversary in order to protect himself from death or great bodily harm, and (2) if so, was *377that belief reasonable?” State v. Bush, 307 N.C. 152, 160, 297 S.E.2d 563, 569 (1982). If the evidence results “[in] a negative response to either question, a self-defense instruction should not be given.” Id. at 161, 297 S.E.2d at 569. See also State v. Lyons, 340 N.C. 646, 662, 459 S.E.2d 770, 778 (1995) (“If there is no evidence from which a jury could reasonably find that defendant, in fact, believed it to be necessary to kill his adversary to protect himself from death or great bodily harm, defendant is not entitled to have the jury instructed on self-defense.”).
I can find no evidence in the record that would permit a reasonable jury to find that defendant subjectively believed that he would be killed or would suffer great bodily harm if he did not kill the victim, Eric Newton. Given the limited evidence presented at trial, any such finding would be mere conjecture.
We know very little about what occurred during the fight between defendant and Newton. Newton kicked in Murial Horne’s door and dived on defendant, who was naked and sitting on Home’s bed. Home testified that the two men then began “tussling.” As the men were “tussling,” Home backed away from the bedroom and saw nothing further. There is no evidence as to what happened in the bedroom from that point on except that Horne and a neighbor heard three shots fired within minutes after Newton entered the house. Newton ran from the house and was later found dead outside. An autopsy revealed that Newton was shot in the back and through his arm.
After Newton left the house, defendant got partially dressed and Horne drove him to the store. As defendant and Home were leaving, a neighbor asked whether they had shot Newton and defendant replied, “He will be all right.” Defendant had two or three scratch marks on his upper chest, but no other injuries.
There was no evidence that Newton had a weapon at any point. Horne gave a statement, admitted as substantive evidence, that she saw defendant holding a gun, but at trial claimed that she did not see a gun.
Defendant chose not to testify. The record therefore contains no direct evidence whether defendant believed that he needed to kill Newton to protect himself from death or great bodily harm. I agree that a defendant is not required to testify in order to be entitled to an instruction as to self-defense. If, however, he does not testify, the record must still contain other evidence of his state of mind. In the *378absence of such other evidence, the trial court should not include an instruction on self-defense. State v. Locklear, 349 N.C. 118, 155, 505 S.E.2d 277, 298 (1998) (“Defendant offered no evidence that at the time of the shooting he believed, reasonably or unreasonably, that it was necessary to kill the victim in order to protect himself from imminent death or great bodily harm. Accordingly, the trial judge did not err by failing to instruct on self-defense.”), cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999); State v. Ross, 338 N.C. 280, 283-84, 449 S.E.2d 556, 560 (1994) (“Defendant failed to present evidence to support a finding that he in fact formed a belief that it was necessary to kill the victim in order to protect himself from death or great bodily harm .... Therefore, the trial court did not err in failing to instruct on the State’s burden of proof with regard to self-defense.”).
In this case, in the absence of testimony by defendant as to his state of mind, there simply is not sufficient evidence to permit a jury to find that defendant had the required subjective belief. Newton was furious, but, based on the evidence, unarmed. The two men had a brief fight, with defendant being scratched two to three times. There is no evidence that Newton — who was 5 feet 9 inches tall and weighed 159 pounds — substantially exceeded defendant in size or had any other traits that made the fight a mismatch. While the evidence would support a finding that defendant feared being assaulted, that inference standing alone is not enough to warrant a self-defense instruction in a homicide case. It cannot circumstantially prove that defendant believed he needed to kill Newton or risk death or grave bodily harm. 1
In Locklear, the Supreme Court considered comparable evidence:
Defendant contends the evidence showed the following: that the victim was the aggressor; that defendant and the victim fought; that defendant bested the victim in the fight; that the victim then told defendant to wait, he would be right back; and that the victim then moved toward the shed, where he kept weapons.
349 N.C. at 154, 505 S.E.2d at 298. The Court found this level of evidence insufficient: “we conclude that the trial court did not err in refusing to give a jury instruction on self-defense.” Id. The evidence relied upon in this case is not materially different from that of Locklear. I am unwilling to hold, as would necessarily be the result here, that a heated fight between two unarmed men over a woman without more necessarily gives rise to a fear of death or grave bodily harm sufficient to justify use of deadly force.
*379On appeal, defendant points to Home’s statement that she was afraid of Newton. Home, however, explained that her fear was based on her prior experience with Newton and there was no evidence that defendant had knowledge of that experience. Nor was there any evidence that Home and defendant were comparable physically. Without such evidence, Home’s subjective belief cannot substitute for and provide circumstantial evidence of defendant’s personal belief.
Defendant argues that the requirement that he produce evidence of his actual state of mind requires him to incriminate himself in violation of the Fifth Amendment. As defendant did not raise this constitutional argument below, he is not allowed to assert it for the first time in this Court. I note, however, that other courts have rejected this argument. See Williams v. Florida, 399 U.S. 78, 84, 26 L. Ed. 2d 446, 451 (1970) (“That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination.”); Bowler v. United States, 480 A.2d 678, 682 n.8 (D.C. App. 1984) (trial court’s refusal to instmct on self-defense did not penalize defendant for exercising his Fifth Amendment privilege not to testify: “Under certain circumstances, such as those at bar where indirect evidence of self-defense is insufficient to support an instruction, that fact does not constitute a penalty upon the exercise of fifth amendment rights.”); State v. Kutnyak, 211 Mont. 155, 173, 685 P.2d 901, 910 (1984) (“The fact that the appellant had to testify or else risk not sufficiently establishing self-defense does not, under these circumstances, create a constitutional denial of his privilege against self-incrimination.”); State v. Seliskar, 35 Ohio St. 2d 95, 96, 298 N.E.2d 582, 583 (1973) (“If a defendant cannot provide evidence on the issue of self-defense other than his own testimony, then, in order to avail himself of the defense, he must testify. In such event, the choice is that of the defendant, and, once he has decided to rely on self-defense and is required by the circumstances to testify in order to prove that defense, he necessarily must waive his constitutional right to remain silent.”). Compare Williams v. State, 915 P.2d 371, 377 (Okl. Cr. 1996) (defendant could not, consistent with the Fifth Amendment, be required to testify as a prerequisite to being allowed to present indirect evidence of self-defense such as by cross-examination of the State’s witnesses).
The dissent argues that the trial court erred in submitting the issue of involuntary manslaughter to the jury. I do not believe that we should address that issue. Defendant’s trial counsel expressed no *380concern about submission of involuntary manslaughter to the jury during the charge conference or after the trial court delivered its jury instructions. When the jury asked to have the instructions for voluntary and involuntary manslaughter re-read, defendant again did not object. The record on appeal contains a list of instructions that were omitted and that were “[e]rroneous[ly]” given; defendant lists only the flight instruction as an “Erroneous Instruction”. Defendant has not assigned error to the submission of involuntary manslaughter to the jury nor has either party briefed the issue. It appears that defendant made a strategic decision — reflected both at trial and on appeal— that it was advantageous to him to allow the jury to consider involuntary manslaughter. I do not believe that this Court should, under these circumstances, address the involuntary manslaughter issue.
In any event, State v. Ray, 299 N.C. 151, 152, 261 S.E.2d 789, 791 (1980), recognized the established rule that the erroneous submission of involuntary manslaughter justifies a new trial only upon a showing that the error prejudiced the defendant. In Ray, the Supreme Court found prejudice based on the possibility that the jury would have accepted defendant’s plea of self-defense had the trial court not erroneously instructed on involuntary manslaughter. Since I believe that the trial court properly refused to instruct as to self-defense, defendant was not prejudiced by the submission of involuntary manslaughter to the jury. Id. at 165-66, 261 S.E.2d at 798 (noting general rule that an erroneous charge on a lesser included offense is error favorable to the defendant when all of the evidence tends to support a greater offense).
. Judge Geer’s separate concurring opinion indicates that the issue of whether it was proper to submit the charge of involuntary manslaughter to the jury is not properly before this Court. Defendant, however, moved to dismiss the involuntary manslaughter charge based upon insufficiency of the evidence and assigns as error and argues in his brief to this Court that there was insufficient evidence to support the submission of that charge to the jury. In my analysis, it is the insufficiency of the evidence to prove defendant actually committed the crime of involuntary manslaughter in combination with the failure to instruct the jury on self-defense that results in prejudicial error to defendant.