An unpublished opinion of the North Carolina Court of Appeals does not constitute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).
