               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA17-1237

                             Filed: 18 December 2018

Mecklenburg County, No. 15 CRS 207135

STATE OF NORTH CAROLINA

            v.

KARLOS ANTONIO HOLMES, Defendant.


      Appeal by Defendant from judgment entered 26 May 2017 by Judge Nathaniel

J. Poovey in Mecklenburg County Superior Court. Heard in the Court of Appeals 7

August 2018.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Isham
      Faison Hicks, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
      Zimmer, for defendant-appellant.


      MURPHY, Judge.


      The victim, Ms. Claiborne, lived with and was engaged to Defendant, Karlos

Antonio Holmes. The couple had a tumultuous relationship after their engagement.

On Sunday, 24 November 2013, Ms. Claiborne sent Defendant a text message telling

him to move out of the home and that she would be changing the locks and continuing

to request child support. Ms. Claiborne went to a concert that Sunday night and

returned home afterwards. The next morning, her friends and colleagues, concerned

that Ms. Claiborne was absent from work and not responding to text messages, went
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to Ms. Claiborne’s home to check on her. Once they gained entry to the home, they

found Ms. Claiborne lying dead in the bathtub along with a hair dryer. The police

arrived and found white feathers throughout the home and a feather pillow in the

room where Defendant had been staying. A subsequent autopsy found petechiae

under Ms. Claiborne’s eyelids and an internal bruise under her skull. While the

forensic pathologist stated it was her medical opinion that Ms. Claiborne did not die

from electrocution, he was unable to determine a cause of death with certainty.

Defendant was charged with and convicted of first-degree murder.

      On appeal, Defendant argues the trial court erred in (A) denying his motion to

dismiss the first-degree murder charge; (B) failing to instruct on the lesser-included

offenses of second-degree murder and voluntary manslaughter; (C) admitting letters

detailing Defendant’s debts; (D) overruling his objection to a statement made by the

State during closing argument; and (E) admitting testimony from two expert

witnesses. We find no error in part and no prejudicial error in part.

                                        BACKGROUND

      Defendant and Ms. Claiborne had a romantic relationship and were the

parents of a young child, Christopher1. Ms. Claiborne and Christopher lived in

Charlotte in a home Ms. Claiborne owned.                  In early 2013, Defendant came to

Charlotte to visit Ms. Claiborne and assist in her recovery after laparoscopic surgery



      1   A pseudonym is used to protect the privacy of the minor-child.

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for endometriosis. Defendant’s move to Charlotte and his stay at Ms. Claiborne’s

home became permanent and the two became engaged late in 2013.

      As of November 2013, the two were having relationship troubles.             Ms.

Claiborne’s cousin testified that “a lot of animosity” existed between Defendant and

Ms. Claiborne and that the two barely spoke during their engagement party. Ms.

Claiborne told her cousin that she did not want “to continue with the wedding because

[Defendant] was having financial issues and he was basically spending all of her

money and she was using all of her money for wedding stuff.”

      On Sunday, 24 November, Christopher was with Ms. Claiborne’s mother in

Virginia, and Ms. Claiborne had plans to attend a concert with two friends and

colleagues, Ms. Carlisle (“Carlisle”) and Ms. Horne (“Horne”). Carlisle arrived at Ms.

Claiborne’s home before the concert to curl Ms. Claiborne’s hair. Ms. Claiborne had

just taken a shower and was putting on clothes, and Carlisle noted that there were

no bruises on Ms. Claiborne’s body when she fully disrobed. Carlisle then used a

curling iron to curl Ms. Claiborne’s hair. While in Ms. Claiborne’s room, Carlisle

noted that “everything was put up and organized nice and neat.” The two then left

Ms. Claiborne’s home in Ms. Claiborne’s BMW for the concert, where they met Horne

and other friends. Ms. Claiborne and Carlisle arrived back at Ms. Claiborne’s home

at approximately 10:00 P.M. that night. Defendant’s Volkswagen was not at the

home when they arrived, and Carlisle watched Ms. Claiborne safely enter the home.



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      The next morning, Horne texted a group chat with Carlisle and Ms. Claiborne,

and Ms. Claiborne never responded. Carlisle then sent Ms. Claiborne an individual

text message asking whether she was at work and if she was okay. Ms. Claiborne

never responded.   Carlisle did not “feel right about the situation,” and told her

supervisor that she would be leaving work for an hour. Horne texted Defendant about

Ms. Claiborne’s whereabouts, to which he responded:

            I’m sorry for the delayed response, but I just got out of a –
            out of a meeting for work. She went out with [Carlisle] last
            night, but I left early this morning and [she] wasn’t there
            when I went to work. I’ll call to check on her in a little bit,
            I think she had another doctor’s appointment.

Horne replied to the text message and asked whether Ms. Claiborne’s BMW was at

home earlier that day. Defendant did not respond.

      Carlisle and Horne went to Ms. Claiborne’s home, where they found

Defendant’s Volkswagen, but not Ms. Claiborne’s BMW. All the doors and windows

to the home were locked, so Carlisle had to lift the garage door for Horne to enter

through an unlocked door inside the garage. While searching for Ms. Claiborne in

the home, Horne entered the bedroom and found it to be “a disaster.” Her clothes,

shoes, and bags were strewn across the floor. Horne then looked in the bathroom,

where she found Ms. Claiborne unresponsive in the bathtub with a blow dryer in her

lap. Horne pulled out and unplugged the blow dryer, and unsuccessfully tried to find

a pulse on Ms. Claiborne.



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        Defendant arrived at the home shortly after emergency personnel, alone and

driving Ms. Claiborne’s BMW. Defendant stated he was unaware that Ms. Claiborne

was supposed to go to work that morning. He also told a paramedic that he had

spoken to Ms. Claiborne approximately 30 to 45 minutes before he arrived at the

home and that she told him she planned to take a bath.

        When police arrived at the scene, they found a white feather in the bathroom

where Ms. Claiborne was found. They further found the furniture had been moved

in Ms. Claiborne’s bedroom and that her closet was “a mess[,]” with a pile of clothes,

broken hangers, and Ms. Claiborne’s engagement ring hidden in a shoebox under two

feet of clothing. In the bedroom with an air mattress where Defendant was staying,

police found clothing and shoes scattered across the floor and a black duffle bag across

the room containing white socks in the original packaging. There were also white

feathers on the floor of the room and a feather pillow behind the air mattress. A

subsequent search of the kitchen revealed white feathers on wet socks found in the

trashcan, and additional white feathers were found in the trash bin outside of the

home.

         A search of Ms. Claiborne’s BMW revealed a broken end table from Ms.

Claiborne’s bedroom, Defendant’s keys to his vehicle, and a Ziploc bag containing

mail. The mail in the Ziploc bag consisted of thirteen parcels addressed to Defendant

containing notices of delinquent child support payments and other debts.



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      DNA analysis indicated that Defendant’s DNA was found under one of Ms.

Claiborne’s fingernails and on one of the ends of the hair dryer’s electrical cord. The

autopsy performed on Ms. Claiborne revealed a large bruise around her hip and upper

thigh, a scratch on her right thigh, and petechiae inside her eyelids. The forensic

pathologist found no indication that Ms. Claiborne ingested alcohol or drugs, no

evidence supporting electrocution, and no water in her lungs to indicate drowning.

However, because there were no “strong, solid physical indications that point to an

exact thing that [caused the death],” the forensic pathologist was unable to determine

a cause of death.

      Defendant was arrested approximately three months after Ms. Claiborne’s

death and was charged with first-degree murder. A jury convicted Defendant on that

charge and the trial court entered judgment, sentencing Defendant to life without

parole. Defendant timely appeals.

                                     ANALYSIS

                               A. Motion to Dismiss

             The trial court’s denial of a motion to dismiss is reviewed
             de novo on appeal. Upon defendant’s motion for dismissal,
             the question for the Court is whether there is substantial
             evidence (1) of each essential element of the offense
             charged, or of a lesser offense included therein, and (2) of
             defendant’s being the perpetrator of such offense. If so, the
             motion is properly denied.




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State v. Pressley, 235 N.C. App. 613, 616, 762 S.E.2d 374, 376 (internal citations and

quotation marks omitted), disc. review denied, ___ N.C. ___, 763 S.E.2d 382 (2014).

“Substantial evidence is such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d

164, 169 (1980). In reviewing claims of sufficiency of the evidence, we consider all

evidence in the light most favorable to the State, drawing all reasonable inferences

in its favor. State v. Everette, 361 N.C. 646, 651, 652 S.E.2d 241, 244 (2007).

      To convict Defendant of first-degree murder under N.C.G.S. § 14-17, the State

must prove Defendant committed: “(1) an unlawful killing; (2) with malice; (3) with

the specific intent to kill formed after some measure of premeditation and

deliberation.” State v. Peterson, 361 N.C. 587, 595, 652 S.E.2d 216, 223 (2007). Thus,

to survive a motion to dismiss on the first-degree murder charge, the State was

required to offer substantial evidence of each element and of Defendant’s identity as

the perpetrator of the unlawful killing. Defendant claims the State failed to meet

this burden with respect to two specific elements: (1) the unlawful killing and (2)

Defendant’s identity as the perpetrator. We discuss each contention in turn.

1. Unlawful Killing

      Defendant contends the State failed to show that Ms. Claiborne died by virtue

of a criminal act and, therefore, failed to offer substantial evidence of an “unlawful

killing.” We disagree.



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      In proving first-degree murder, the State must show that the victim’s

“immediate cause of death is the natural result of [Defendant’s alleged] criminal

acts.” State v. Cummings, 301 N.C. 374, 378, 271 S.E.2d 277, 280 (1980). “There is

no proper foundation . . . for a finding by the jury as to the cause of death without

expert medical testimony where the cause of death is obscure and an average layman

could have no well grounded opinion as to the cause.” State v. Minton, 234 N.C. 716,

722, 68 S.E.2d 844, 848 (1952). Minton, however, does not place a requirement on

the State to offer expert medical testimony that arrives at a final, determined cause

of death in order for the jury to make a finding as to the cause of death.

      Here, the State presented expert medical testimony by the forensic pathologist,

Dr. Thomas Darrell Owens (“Dr. Owens”), who performed the autopsy on Ms.

Claiborne. While Dr. Owens testified that he was unable to clinically determine a

cause of death, the State presented substantial evidence from which the jury could

determine that the cause of Ms. Claiborne’s death was the natural result of a criminal

act. At trial, Dr. Owens testified that the autopsy he performed revealed petechiae,

red dots similar to bruising, on the inside of Ms. Claiborne’s eyelids. Dr. Owens

testified that petechiae are caused by pressure in the head when blood is “flowing in,

but the drainage can’t drain out[,]” leading to burst blood vessels. The presence of

petechiae led Dr. Owens to believe that “there was potentially some type of pressure

around [Ms. Claiborne’s] upper chest or her neck and head area so that the blood got



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trapped and the little blood vessels popped in the skin because the blood couldn’t

drain out.” Indeed, Dr. Owens testified that the presence of petechiae is “more

consistent with pressure on the chest and neck, as in a sitting, pressing or pressure

around the neck” and that such pressure, in the form of suffocation, “almost never”

leaves a mark in the area where the pressure is applied.

      Dr. Owens also testified that he found a large bruise around Ms. Claiborne’s

right side around her hip in the upper part of her thigh that was less than 18 hours

old, along with a superficial linear abrasion on the side of her right thigh. Carlisle

testified that the night before Ms. Claiborne’s death, she saw Ms. Claiborne fully

naked as she was dressing and did not see such a bruise. Additionally, Dr. Owens

noted a subgaleal hemorrhage on the inside of Ms. Claiborne’s scalp that “would

indicate her head was hit by something or her head hit into something to cause that

deep bruise.”

      Dr. Owens also offered expert medical testimony as to what, in his opinion, did

not cause Ms. Claiborne’s death.      Ms. Claiborne’s toxicology report came back

negative for alcohol and all drugs tested. This was notable, as “the vast majority [of

cases of suicide] are positive for alcohol” when suicide is carried out by

instrumentation and suicides involving drugs usually involve high levels of drugs.

Moreover, Dr. Owens ruled out drowning, as there was no water found in Ms.

Claiborne’s lungs. Finally, Dr. Owens found no evidence to support a finding that



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Ms. Claiborne died of electrocution, and it was Dr. Owens’s expert medical opinion

that “she did not die of electrocution.”

      Taken in the light most favorable to the State and affording it the benefit of all

reasonable inferences, the evidence presented was sufficient such that a reasonable

juror could accept the evidence as adequate to support the conclusion that the cause

of Ms. Claiborne’s death was the natural result of a criminal act.

2. Defendant as Perpetrator

      Defendant contends the State also failed to offer substantial evidence that

Defendant was the perpetrator of the crime. We, again, disagree.

      The    evidence    offered   by      the   State    was   circumstantial;   however,

“[c]ircumstantial evidence may be sufficient to overcome a motion to dismiss ‘even

when the evidence does not rule out every hypothesis of innocence.’” State v. Hayden,

212 N.C. App. 482, 484, 711 S.E.2d 492, 494 (2011) (quoting State v. Stone, 323 N.C.

447, 452, 373, S.E.2d 430, 433 (1988)). When the evidence of a defendant’s identity

as the perpetrator is circumstantial:

             [C]ourts often speak in terms of proof of motive,
             opportunity, capability and identity, all of which are
             merely different ways to show that a particular person
             committed a particular crime. In most cases these factors
             are not essential elements of the crime, but instead are
             circumstances which are relevant to identify an accused as
             the perpetrator of a crime.




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State v. Bell, 65 N.C. App. 234, 238, 309 S.E.2d 464, 467 (1983), aff'd, 311 N.C. 299,

316 S.E.2d 72 (1984). Such a question of “[w]hether the State has presented sufficient

evidence to identify defendant as the perpetrator of the offense is not subject to an

easily quantifiable bright line test.” State v. Miles, 222 N.C. App. 593, 600, 730 S.E.2d

816, 823 (2012), aff’ed, 366 N.C. 503, 750 S.E.2d 833 (2013). Thus, while evidence of

either motive or opportunity, standing alone, is insufficient to withstand a motion to

dismiss, we assess “the quality and strength of the evidence as a whole.” Id.

      Regarding motive, the State presented substantial evidence of a tumultuous

relationship between Defendant and Ms. Claiborne that was colored by Defendant’s

financial troubles. It was known that Ms. Claiborne and Defendant had relationship

problems after their engagement and that animosity existed between the two, which

was apparent at the couple’s engagement party. Ms. Claiborne explicitly stated to a

friend that she did not want “to continue with the wedding because [Defendant] was

having financial issues and he was basically spending all of her money and she was

using all of her money for wedding stuff.” Additionally, the day before Ms. Claiborne

was killed, she sent a text message to Defendant stating, “You have until Tuesday at

8:00 as I’m leaving to go out of town Wednesday or Thursday. And my locks will be

changed. So do my [sic] act stupid. Thanks.” She then sent an additional text stating,

“I will also be [sic] send a request not to stop child support FYI.” Law enforcement

later found a Ziploc bag of notices about Defendant’s child support payments and



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commercial debts. Defendant’s financial hardships, coupled with his tempestuous

relationship with Ms. Claiborne and her threat to end the relationship and remove

Defendant from her home, are sufficient for a reasonable juror to conclude Defendant

had motive to kill Ms. Claiborne. See State v. Gray, ___ N.C. App. ___, ___, 820 S.E.2d

364, ___ (Sept. 18, 2018) (No. COA17-1162) (holding “motive tended to be sufficiently

established with testimony concerning the hostility that existed” between the

defendant and victim).

      In order to show opportunity, “the State must have presented at trial evidence

not only placing the defendant at the scene of the crime, but placing him there at the

time the crime was committed.” Hayden, 212 N.C. App. at 488, 711 S.E.2d at 497.

Ms. Claiborne was found with her body already in rigor mortis.               The forensic

pathologist testified that the onset of rigor mortis is first noticeable in the fingers and

jaw after 30 minutes to an hour after death and the body progressively stiffens over

the next 6 to 8 hours. As the 911 call was placed at 11:48 A.M., this indicates that

Ms. Claiborne’s death occurred during the night or early morning.

      The State presented evidence that Defendant was in the home between the

time that Ms. Claiborne returned home from the concert the night before and when

her body was found the next day. Ms. Claiborne arrived home from the concert in her

BMW and Carlisle watched Ms. Claiborne enter the home. When Defendant arrived

the next day after Ms. Claiborne’s body was found, he was driving Ms. Claiborne’s



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BMW. Thus, Defendant was necessarily at the home during this time period to take

possession of Ms. Claiborne’s car. Moreover, the broken end table found in the BMW

that Defendant was driving when he arrived at the home was circumstantial evidence

placing Defendant at the scene when Ms. Claiborne was killed.

      Defendant argues that his presence at the home during this time is insufficient

to show opportunity, as “[h]e had access to the house during this time because he

lived there.” However, we have made it clear that presence at or near the scene of a

killing around the time it was committed is sufficient for a reasonable juror to

conclude Defendant had the opportunity to commit the killing. Miles, 222 N.C. App.

at 601, 730 S.E.2d at 823 (“Taking the State’s evidence as a whole and resolving all

contradictions in favor of the State, a reasonable juror could conclude that defendant

was in the vicinity of the victim’s home and the scene of the crime at the time of death,

thereby establishing defendant’s opportunity to commit the murder.”)

      As previously stated, a reasonable mind might accept the evidence, viewed in

the light most favorable to the State and affording it the benefit of all reasonable

inferences, as adequate to support the conclusion that Ms. Claiborne was suffocated

to death. The State introduced evidence tending to establish that Defendant had the

capability of carrying out this method of killing and evidence establishing his identity

as the perpetrator of such an action. A white feather pillow was found behind the air

mattress in the room in which Defendant stayed. Also found in Defendant’s room



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was an opened pack of white socks still in the original packaging. White feathers

were found on the floor in the bedroom, in a trash bin outside the home, and in the

bathroom where Ms. Claiborne’s body was found. A pair of wet white socks was found

in the trashcan in the kitchen with a feather on the socks. This evidence, viewed in

the light most favorable to the State, would allow a reasonable juror to conclude that

Defendant had the means of suffocating Ms. Claiborne with the feather pillow found

in his room and that this evidence connected Defendant to the means of the killing.

      Based upon this evidence, there was sufficient evidence from which a

reasonable inference of Defendant’s guilt could be drawn. Accordingly, it was for “the

jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a

reasonable doubt that [Defendant was] actually guilty.” State v. Fritsch, 351 N.C.

373, 379, 526 S.E.2d 451, 455 (2000).        The trial court did not err in denying

Defendant’s motion to dismiss.

                  B. Instruction on Lesser-Included Offenses

      Defendant argues the trial court erred in failing to submit an instruction to the

jury on second-degree murder and/or voluntary manslaughter.                 Specifically,

Defendant contends the evidence negated premeditation and deliberation.              We

disagree.

      “We review the trial court’s denial of the request for an instruction on the lesser

included offense de novo.” State v. Laurean, 220 N.C. App. 342, 345, 724 S.E.2d 657,



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660 (2012). A trial court is required to give a jury instruction on a lesser-included

offense “only if the evidence would permit the jury rationally to find defendant guilty

of the lesser offense and to acquit him of the greater.” State v. Millsaps, 356 N.C.

556, 561, 572 S.E.2d 767, 771 (2002). Still, the “trial court should refrain from

indiscriminately or automatically instructing on lesser included offenses.         Such

restraint ensures that the jury’s discretion is . . . channelled so that it may convict a

defendant of only those crimes fairly supported by the evidence.” State v. Taylor, 362

N.C. 514, 530, 669 S.E.2d 239, 256 (2008) (citation, alteration, and internal quotation

marks omitted). Our caselaw has made it clear when the trial court shall submit an

instruction for second-degree murder as a lesser-included offense to first-degree

murder:

             If 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 defendant's denial that he committed
             the offense, the trial judge should properly exclude from
             jury consideration the possibility of a conviction of second
             degree murder.

Millsaps, 356 N.C. at 560, 572 S.E.2d at 771.

      In order to satisfy its burden that Defendant’s act was premeditated, the State

must show that “the act was thought over beforehand for some length of time,

however short.” Taylor, 362 N.C. at 531, 669 S.E.2d at 256 (quoting State v. Leazer,

353 N.C. 234, 238, 539 S.E.2d 922, 925 (2000)). To establish deliberation, Defendant


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must have possessed “an intent to kill, carried out in a cool state of blood . . . and not

under the influence of a violent passion or a sufficient legal provocation.”           Id.

Premeditation and deliberation are typically proven through circumstantial evidence.

State v. Childress, 367 N.C. 693, 695, 766 S.E.2d 328, 330 (2014). Our Supreme Court

“has identified several examples of circumstantial evidence, any one of which may

support a finding of the existence of these elusive qualities.” Id. Such examples

include:

             (1) absence of provocation on the part of the deceased, (2)
             the statements and conduct of the defendant before and
             after the killing, (3) threats and declarations of the
             defendant before and during the occurrence giving rise to
             the death of the deceased, (4) ill will or previous difficulties
             between the parties, (5) the dealing of lethal blows after the
             deceased has been felled and rendered helpless, (6)
             evidence that the killing was done in a brutal manner, and
             (7) the nature and number of the victim's wounds.

Id.

      Here, the State offered substantial evidence to support a finding of

premeditation and deliberation. As discussed above, Defendant and Ms. Claiborne

had a tumultuous relationship with ill-will existing between the two. Ms. Claiborne

planned to call off the wedding and sent Defendant a text message telling him that

he needed to move out of the home and that she would be changing the locks.

Moreover, she informed Defendant, who had financial troubles, that she would

continue to seek child support payments. The next day her body was found. After



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the killing, Defendant gave inconsistent statements regarding the morning Ms.

Claiborne’s body was found. He told Ms. Claiborne’s friend, Horne, that he left early

for work and Ms. Claiborne was not there. He also stated that he thought she had a

doctor’s appointment. However, Defendant had Ms. Claiborne’s BMW and the keys

to his own car with him, leaving Ms. Claiborne with no vehicle the morning her body

was found. Indeed, when Horne asked Defendant whether the BMW was at the home

when he went to work, he never responded. Moreover, there was no evidence that

Ms. Claiborne provoked Defendant in any way. Accordingly, there was substantial

evidence to support the jury’s finding of premeditation and deliberation.

      However, the sufficiency of the evidence to satisfy the State’s burden in proving

the elements of first-degree murder does not end our inquiry. The key issue here is

whether there was evidence to negate a finding of premeditation and deliberation and

support a conviction of second-degree murder. “An instruction on the charge of

second-degree murder requires that the unlawful killing of a human being occur

without premeditation and deliberation.” Laurean, 220 N.C. App. at 347-48, 724

S.E.2d at 662. “[I]f 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.” State v. Misenheimer, 304

N.C. 108, 113, 282 S.E.2d 791, 795 (1981). Stated differently, the specific intent to

kill must be “formed under the influence of the provocation of the quarrel or struggle



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itself” in order to negate premeditation and deliberation. Id. at 114, 282 S.E.2d at

795-96.

      The only evidence Defendant claims negates premeditation and deliberation

are the text from Ms. Claiborne telling Defendant to move out of the home and the

signs of the struggle indicated by strewn clothes and broken furniture. From this

evidence, Defendant claims premeditation and deliberation were negated because

“the jury could have concluded” that an argument arose that “aroused a sudden

passion in him.” However, these two pieces of evidence do not negate premeditation

and deliberation.

      Ms. Claiborne sent Defendant the text message telling him to move out of the

home and that she would continue to request child support on Sunday, the day before

her body was found. In order to negate premeditation and deliberation by showing a

sufficient provocation, the intent to kill must be formed and immediately executed in

the passion caused by that provocation. There is no evidence that Defendant formed

and immediately executed the intent to kill under the provocation of that text

message when he received it. Even assuming Defendant and Ms. Claiborne did later

argue about the text message, “evidence that the defendant and the victim argued,

without more, is insufficient to show that the defendant’s anger was strong enough

to disturb his ability to reason.” State v. Solomon, 340 N.C. 212, 222, 456 S.E.2d 778,




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785 (1995). Nevertheless, there is no such additional evidence in the record before

us.

      Additionally, the strewn clothes and broken furniture that Defendant says

indicate signs of a struggle do not negate premeditation and deliberation in this case.

Our appellate courts have never held that evidence of a struggle, fight, or victim

resistance necessarily negates premeditation and deliberation.           See State v.

Hightower, 340 N.C. 735, 744, 459 S.E.2d 739, 744 (1995) (“[A]ny attempts by [the

victim] at hitting or kicking defendant on or near the dirt road prior to his stabbing

her were the direct result of defendant’s pursuit of her.”). The mere fact that there

were strewn clothes and a broken end table, alone, are not evidence that show a

provocation sufficient to render Defendant incapable of deliberating his actions.

      We find Defendant’s reliance on State v. Beck, 163 N.C. App. 469, 594 S.E.2d

94 (2004), rev’d in part on other grounds, 359 N.C. 611, 614 S.E.2d 274 (2005),

misplaced and unpersuasive. In Beck, we held there was evidence sufficient to negate

premeditation and deliberation where the defendant was “very drunk” when he went

to see the victim, the victim initiated a physical attack on the defendant, and the

victim made numerous threats to the defendant’s child during the fight that ensued.

Id. at 473-74, 594 S.E.2d at 97. The record here contains no evidence of any of these

circumstances that would require an outcome similar to Beck. Defendant claims the

jury “could have concluded” an argument occurred that aroused a sudden passion in



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Defendant that negated premeditation and deliberation; however, the mere

possibility of such an argument or altercation is insufficient to render the trial court’s

decision not to instruct on second-degree murder erroneous. Defendant has not

pointed us to any evidence that he was incapable of deliberating his action or that he

was unable to reason due to a sufficient provocation. Because the evidence does not

establish that Defendant formed the intent to kill Ms. Claiborne under the influence

of provocation such that premeditation and deliberation are negated, the trial court

did not err in failing to instruct the jury on second-degree murder.

      The trial court similarly did not err in failing to instruct the jury on voluntary

manslaughter. “Voluntary manslaughter is the unlawful killing of a human being

without malice and without premeditation and deliberation.” State v. Norris, 303

N.C. 526, 529, 279 S.E.2d 570, 572 (1981). “Killing another while under the influence

of passion or in the heat of blood produced by adequate provocation is voluntary

manslaughter.” State v. Allbrooks, ___ N.C. App. ___, ___, 808 S.E.2d 168, 172 (2017).

“To reduce the crime of murder to voluntary manslaughter, the defendant must either

rely on evidence presented by the State or assume a burden to go forward with or

produce some evidence of all elements of heat of passion on sudden provocation.” Id.

Defendant did not present such evidence, and the State’s evidence does not establish

a sudden provocation, much less that he acted under an “immediate grip of sufficient

passion” to warrant a voluntary manslaughter instruction. Without evidence of such



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a provocation and heat of passion, the trial court did not err in failing to instruct the

jury on voluntary manslaughter.

                                      C. Letters

      Defendant argues the trial court erred in admitting letters detailing his

outstanding debts over his timely objection that the letters were not relevant under

Rule 401. In the alternative, Defendant contends that the trial court abused its

discretion in admitting the letters, as the probative value was substantially

outweighed by the danger of unfair prejudice under Rule 403. We disagree with both

contentions.

      “The admissibility of evidence is governed by a threshold inquiry into its

relevance. In order to be relevant, the evidence must have a logical tendency to prove

any fact that is of consequence in the case being litigated.” State v. Griffin, 136 N.C.

App. 531, 550, 525 S.E.2d 793, 806 (citation and internal quotation marks omitted),

appeal dismissed and disc. review denied, 351 N.C. 644, 543 S.E.2d 877 (2000); see

also N.C.G.S. § 8C-1, Rule 401 (2017). Trial court rulings on relevancy technically

are not discretionary. Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17

(2004). However, because we have noted the trial court “is better situated to evaluate

whether a particular piece of evidence tends to make the existence of a fact of

consequence more or less probable,” rulings on relevancy are given great deference

on appeal. Id.



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      Evidence may be excluded under Rule 403 even if it is relevant:

             Although relevant, evidence may be excluded if its
             probative value is substantially outweighed by the danger
             of unfair prejudice, confusion of the issues, or misleading
             the jury, or by considerations of undue delay, waste of time,
             or needless presentation of cumulative evidence.

N.C.G.S. § 8C-1, Rule 403 (2017). Rule 403 determinations “are discretionary, and a

trial court’s decision on motions made pursuant to Rule 403 are binding on appeal,

unless the dissatisfied party shows that the trial court abused its discretion.” State

v. Chapman, 359 N.C. 328, 348, 611 S.E.2d 794, 811 (2005). Abuse of discretion

occurs when the trial court’s ruling “is manifestly unsupported by reason or is so

arbitrary that it could not have been the result of a reasoned decision.” State v.

Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

      Whether Defendant had a motive to murder Ms. Claiborne was a strongly

contested issue in this case. The State alleged that Defendant was facing financial

difficulties and that those difficulties created a financial motive to kill Ms. Claiborne.

We have previously held that evidence of financial difficulties may be relevant to such

a contested issue. See State v. Britt, 217 N.C. App. 309, 317, 718 S.E.2d 725, 731

(2011) (holding that trial court did not abuse its discretion in admitting letters

detailing the defendant’s financial hardship because the letters “support[ed] the

State’s theory that defendant had a financial motive to kill his wife.”); State v.

Peterson, 179 N.C. App. 437, 465, 634 S.E.2d 594, 615 (2006) (holding that “evidence



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of a potential inheritance of a great deal of money combined with current financial

difficulties may be evidence of a motive for murder.”), aff’ed, 361 N.C. 587, 652 S.E.2d

216 (2007), cert. denied, 552 U.S. 1271, 170 L.Ed.2d 377 (2008). The letters here

indeed indicated that Defendant faced financial hardships with both consumer and

child support debt. This, coupled with evidence that Ms. Claiborne had threatened

to remove Defendant from the home and expressed that she would continue to request

child support, indicate that the letters made the existence of a financial motive to

murder Ms. Claiborne more probable.

      Defendant attempts to distinguish this case from those where we have held

evidence was relevant to a financial motive to murder, noting that the amount of debt

was not as high and that Defendant stood to gain no monetary benefit from a life

insurance policy. We find this argument unpersuasive. “Relevant evidence is that

which has any tendency, however slight, to make the existence of any fact of

consequence to the determination of the action more or less probable than it would

be without the evidence.” Britt, 217 N.C. App. at 317, 718 S.E.2d at 731 (emphasis

added). Because Defendant’s financial difficulties were “calculated to throw . . . light

upon the supposed crime[,]” the trial court did not err in admitting the letters. See

State v. Hamilton, 264 N.C. 277, 286-87, 141 S.E.2d 506, 513 (1965). The weight of

such evidence was for the jury. See id. at 287, 141 S.E.2d at 513.




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      Additionally, we do not find that the trial court’s Rule 403 determination that

the probative value of the letters was not outweighed by the danger of unfair

prejudice was manifestly unsupported by reason. The trial court here indeed limited

the danger of unfair prejudice by prohibiting the State from publishing to the jury

letters which indicated a criminal action against Defendant. The trial court did not

abuse its discretion in admitting the letters.

                           D. State’s Closing Argument

      During its closing argument, the State made the remark that Defendant “has

absolutely no money.” Defendant argues on appeal that the trial court abused its

discretion in overruling his timely objection to this statement based on his contention

that the content of the statement was not in evidence. We disagree.

      “The standard of review for improper closing arguments that provoke timely

objection from opposing counsel is whether the trial court abused its discretion by

failing to sustain the objection.” State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106

(2002). “In order to assess whether a trial court has abused its discretion when

deciding a particular matter, [we] must determine if the ruling could not have been

the result of a reasoned decision.”      Id. (citation and internal quotation marks

omitted). Our Supreme Court in Jones instructed:

             When applying the abuse of discretion standard to closing
             arguments, this Court first determines if the remarks were
             improper. . . . [I]mproper remarks include statements of
             personal opinion, personal conclusions, name-calling, and


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             references to events and circumstances outside the
             evidence, such as the infamous acts of others. Next, we
             determine if the remarks were of such a magnitude that
             their inclusion prejudiced defendant, and thus should have
             been excluded by the trial court.


Id.   A defendant is prejudiced by a non-Constitutional error “when there is a

reasonable possibility 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. The burden

of showing such prejudice under this subsection is upon the defendant.” N.C.G.S. §

15A-1443(a) (2017).

       We need not decide whether the content of the statement that Defendant “has

absolutely no money” referenced circumstances outside of the evidence, as Defendant

has failed to show that such an alleged error prejudiced him.          Preceding the

statement, the State detailed Defendant’s debts, all of which were in evidence. The

State also noted that Defendant lived in the home that Ms. Claiborne owned.

Moreover, the State acknowledged that Defendant had in fact started a new job the

day Ms. Claiborne’s body was found. With all of this evidence before the jury, there

is no reasonable probability that the outcome of the trial would have been different

absent the contested hyperbole.

                               E. Expert Testimony




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      Defendant next argues the trial court erred in admitting the expert opinions of

Michael Kale (“Kale”) and Michael McFarlane (“McFarlane”). We consider each in

turn and find no error.

      It remains well-established that “the trial judge is afforded wide latitude of

discretion when making a determination about the admissibility of expert

testimony[,]” and the trial court’s determination is reviewed for abuse of discretion.

State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984); State v. King, 366

N.C. 68, 75, 733 S.E.2d 535, 539-40 (2012). “The trial court’s decision will not be

disturbed on appeal unless ‘the court’s ruling is manifestly unsupported by reason or

is so arbitrary that it could not have been the result of a reasoned decision.’” State v.

Mendoza, ___ N.C. App. ___, ___, 794 S.E.2d 828, 834 (2016) (quoting State v. Ward,

364 N.C. 133, 139, 694 S.E.2d 738, 742 (2010)).           Thus, “[t]rial courts act as a

gatekeeper in determining admissibility of expert testimony, and a trial court's

decision to admit or exclude expert testimony will not be reversed on appeal unless

there is no evidence to support it.” State v. Walston, 369 N.C. 547, 551, 789 S.E.2d

741, 745 (2017) (citation and internal quotation marks omitted).

      Under Rule 702:

             (a) If scientific, technical or other specialized knowledge
             will assist the trier of fact to understand the evidence or to
             determine a fact in issue, a witness qualified as an expert
             by knowledge, skill, experience, training, or education, may
             testify thereto in the form of an opinion, or otherwise, if all
             of the following apply:


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                    (1) The testimony is based upon sufficient facts or
                    data.

                    (2) The testimony is the product of reliable principles
                    and methods.

                    (3) The witness has applied the principles and
                    methods reliably to the facts of the case.

N.C.G.S § 8C-1, Rule 702 (2017). In order for expert testimony to be admissible, it

must satisfy the three prongs of Rule 702: the expert testimony must pass a relevance

inquiry, the expert must be appropriately qualified, and the expert testimony must

be reliable by satisfying the three inquiries enumerated in Rule 702(a)(1)-(3). State

v. McGrady, 368 N.C. 880, 889-90, 787 S.E.2d 1, 8-9 (2016).

1. Kale

      Defendant first contends that Kale was not qualified to offer expert testimony

that a running hair dryer dropped in a tub of water would not create current leakage

if there is no path to the ground for the electrical current.

      Kale testified that he is an inspection supervisor for Mecklenburg County Code

Enforcement specializing in electrical code enforcement, a position he has held for 15

years. In 2001, Kale received a Level III inspection certification, the highest level of

certification for electrical inspectors. He continues to take 60 hours in continuing

education classes in the field per year. Prior to his current position, Kale had been

an electrical contractor since 1987. Kale stated that in the early 1980s, he began



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                                   Opinion of the Court



constructing electrical wiring systems and continued to do so until his current

position where he switched from constructing to inspecting such systems. More

specifically, Kale’s current responsibilities as an inspection supervisor include

checking “the installation of electrical systems and power distribution systems” by

testing and visually inspecting electrical wiring to ensure compliance with national

and state codes. Kale testified that an appliance with a running circuit placed in a

bathtub with water, with no pathway to the ground, would not create electrical

leakage, as “the only path back to ground is the circuit [to which] it’s attached . . . .”

Given Kale’s knowledge, experience, and training in electrical systems, which

encompasses how electricity moves, it was not an abuse of discretion for the trial court

to determine that Kale had the necessary qualifications to provide this opinion.

      Defendant cites Leary v. Nantahala Power & Light Co., 76 N.C. App. 165, 332

S.E.2d 703 (1985) in support of his argument that Kale was not qualified. However,

Leary is readily distinguishable from the case at hand. In Leary, a witness was

tendered as an expert in the field of “operation and maintenance of electrical

distribution systems.” Leary, 76 N.C. App. at 173, 332 S.E.2d at 709. The witness,

however, studied education in school, failed to complete his course of instruction as a

lineman, and was responsible in his current position for “talking with prospective

residential customers, obtaining rights-of-way for provision of service to their homes,

determining the location of the power poles, scheduling line crews and specifying the



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                                   Opinion of the Court



materials to be used in providing electrical service systems to the residences.” Id. In

contrast, Kale began his career in the 1980s constructing electrical wiring systems

and subsequently advanced to inspecting such systems for 15 years. While Kale

lacked a post-secondary degree in electrical engineering, we have never required such

a formal credential. State v. Norman, 213 N.C. App. 114, 124, 711 S.E.2d 849, 857,

disc. review denied, 365 N.C. 360, 718 S.E.2d 401 (2011) (holding that the witness’s

“extensive practical experience” in the relevant fields qualified him to testify as an

expert despite his lack of a formal degree). Kale’s experience, training, skill, and

experience in the electrical systems field are distinguishable to the witness in Leary.

      Defendant next contends that Kale’s opinion on how an appliance would react

when placed in water was not based on reliable methods. Specifically, Defendant

claims that Kale “formed his opinion . . . when he witnessed a fire department

instructor throw a hair dryer into a similar tub of water” and it kept running.

However, this contention mischaracterizes the testimony. After testifying to the

potential effect of placing an appliance in water with respect to the electrical system,

the State asked Kale, “have you ever witnessed this . . . phenomenon demonstrated?”

Kale’s response to the question describing the demonstration he witnessed merely

assisted in illustrating Kale’s preceding testimony.      The testimony was not an

experiment “requiring substantially similar circumstances to test the validity of such

a hypothesis” and did not serve as the basis for Kale’s preceding opinion. See State



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                                    Opinion of the Court



v. Anderson, 200 N.C. App. 216, 222, 684 S.E.2d 450, 455 (2009). Rather, “[the]

illustration enabled the jury to better understand his testimony and to realize

completely its cogency and force.” See id. Defendant’s argument is accordingly

without merit.

2. McFarlane

         Defendant contends the trial court abused its discretion in admitting evidence

of McFarlane’s experiment.         McFarlane worked for the Federal Bureau of

Investigation as a forensic examiner of electronic devices and was tendered as an

expert in electrical systems and forensic electricity.       McFarlane testified that

appliances such as a hairdryer have an ALCI safety plug, which disables the electrical

current going to the device when a certain amount of current leakage occurs. To test

whether the ALCI on the hairdryer found with Ms. Claiborne was working and to

determine the exact amount of leakage at which the ALCI would disable the current,

McFarlane conducted an experiment. He set up “a trough with water in it” and

attached wires to the hairdryer that he then placed in the water. At the other end of

the trough, he placed additional wires to provide a secondary pathway for the current

to leak to the ground. McFarlane then moved the hairdryer closer to the other wires

to determine the exact amount of leakage from the hair dryer circuit to the secondary

pathway that occurred before the ALCI plug disabled the current going to the hair

dryer.



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      “An experiment is a test made to demonstrate a known truth, to examine the

validity of a hypothesis, or to determine the efficacy of something previously untried.”

State v. Golphin, 352 N.C. 364, 433, 533 S.E.2d 168, 215 (2000) (citation and internal

quotation marks omitted), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.E.2d 305

(2001).

             Experimental evidence is competent and admissible if the
             experiment is carried out under substantially similar
             circumstances to those which surrounded the original
             occurrence. The absence of exact similarity of conditions
             does not require exclusion of the evidence, but rather goes
             to its weight with the jury. The trial court is generally
             afforded broad discretion in determining whether
             sufficient similarity of conditions has been shown.

State v. Locklear, 349 N.C. 118, 147, 505 S.E.2d 277, 294 (1998) (internal citations

omitted), cert. denied, 526 U.S. 1075, 119 S. Ct. 1475, 143 L.Ed.2d 559 (1999). We

have held that “the substantial similarity requirement for experimental evidence

does not require precise reproduction of circumstances[,]” but the “trial court must

consider whether the differences between conditions can be explained by the

witnesses so that any effects arising from the dissimilarity may be understood by the

jury . . . .” State v. Chapman, 244 N.C. App. 699, 715, 781 S.E.2d 320, 331 (2016).

      Here, McFarlane conducted the experiment to test the amount of current that

would need to be leaked in order for the ALCI safety plug to disable the current going

to the device. McFarlane used the same hair dryer that was found with Ms. Claiborne

in the bathtub. He also used a “trough with water in it” to recreate the bathtub.


                                          - 31 -
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                                  Opinion of the Court



Additionally, McFarlane testified that when he turned on the hair dryer, it functioned

correctly with the attached wires. McFarlane’s failure to say what the trough was

made of or whether it had a metal drain did not render the experiment void of

substantial similarity as Defendant suggests. McFarlane testified that the presence

of a metal drain is relevant in determining whether the drain is connected to

something that would provide an alternative pathway for the current to reach the

ground. However, this experiment was testing the amount of leakage that causes the

ALCI safety plug to disable the current and did not concern the medium through

which the current travels once it is already leaked. Affording the trial court broad

discretion, we do not find that the trial court abused its discretion in admitting this

evidence.

      The State later asked McFarlane whether “based on your examination, using

that trough of water, potentially does electricity prefer to go through this hair dryer

circuit, or does it like to go through the water instead?” McFarlane responded, “Given

the tap water that I was using from Quantico, Virginia, the preference of the hair

dryer circuit was to go through the hair dryer and not through the water.” Our review

of the record and the context of McFarlane’s testimony indicates that the “truth” or

“hypothesis” to be tested was not the medium through which the current preferred to

go. However, even assuming this test was an experiment within the meaning of our




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caselaw to test such a hypothesis, the trial court did not abuse its discretion in

admitting the evidence in this context.

      We have held that “candid acknowledgment of dissimilarities and limitations

of the experiment is generally sufficient to prevent experimental evidence from being

prejudicial.” Chapman, 244 N.C. App. at 715-16, 781 S.E.2d at 331-32 (citation,

alteration, and internal quotation marks omitted).        The prosecutor qualified his

question with the term “potentially,” indicating the same result will not always

happen. Moreover, McFarlane made it clear that the current continues to go through

the hair dryer circuit only in “an ideal bathtub situation” where there is no alternative

pathway to the ground and indicated that an alternative pathway to the ground could

alter the result he observed. McFarlane was also cross-examined on whether the

bathtub in question had a metal drain and what implications this could have.

Accordingly, we find no error.

      We also reject Defendant’s contention that McFarlane’s testimony that the

current preferred to go through the hair dryer circuit was not based on reliable

methods as required by Rule 702. McFarlane testified as to the nature and behavior

of electrical currents, the workings of electrical circuits, and specifically how the

electrical circuit within a hair dryer works. McFarlane then explained that he was

employing these principles of electricity to test the amount of current-leakage

necessary to trigger the safety device on the hair dryer. From this test, McFarlane



                                          - 33 -
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                                   Opinion of the Court



specifically indicated that, given the tap water in Quantico, Virginia and the water

trough he was using, the current preferred to go through the hair dryer’s electrical

current. He never opined based on this test that the water definitively preferred to

go through the water in Ms. Claiborne’s situation. Rather, he was describing the

“ideal bathtub situation” based on the nature of electricity and electrical circuits. The

trial court thus acted within its discretion in its determination that McFarlane’s

testimony was based upon sufficient facts and data and was the product of reliable

principles and methods.

                                   CONCLUSION

      The trial court did not err in denying Defendant’s motion to dismiss where

substantial evidence, taken in the light most favorable to the State and affording it

every reasonable inference, established each essential element of first-degree murder

and that Defendant was the perpetrator of such offense. Additionally, the trial court

did not err in failing to instruct the jury on second-degree murder and voluntary

manslaughter where there was no evidence to negate premeditation and deliberation.

The trial court also did not abuse its discretion in admitting letters detailing

Defendant’s financial troubles where the letters were probative of a financial motive

to kill the victim and were not unfairly prejudicial to Defendant. Defendant further

failed to show prejudice from the State’s remark that he has “absolutely no money”

during closing argument when the jury heard evidence on Defendant’s full financial



                                          - 34 -
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status. Finally, the trial court did not err in admitting expert testimony and evidence

of an experiment where that determination was not manifestly unsupported by

reason. Accordingly, Defendant received a fair trial.

      NO ERROR IN PART; NO PREJUDICIAL ERROR IN PART.

      Judges CALABRIA and ARROWOOD concur.




                                         - 35 -
