An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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,
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
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
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).