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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1052

NORTH CAROLINA COURT OF APPEALS

Filed: 7 August 2007

STATE OF NORTH CAROLINA

v .                         Alamance County
                            No. 04CRS55515
MARCHE SHAROD McCOY

    Appeal by Defendant from judgment dated 23 January 2006 by Judge J.B. Allen, Jr. in Superior Court, Alamance County. Heard in the Court of Appeals 27 March 2007.

    Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Ziko, for the State.

    M. Alexander Charns for Defendant-Appellant.

    McGEE, Judge.

    Marche Sharod McCoy (Defendant) was convicted of second-degree murder of Latisha Pinnix (Pinnix). The trial court sentenced Defendant to a minimum of 189 months and a maximum of 236 months in prison. Defendant appeals.
    Officer Josh Hall (Officer Hall), with the Burlington Police Department, testified at trial that he received a call on the morning of 21 June 2004, at approximately 7:00 a.m., to respond to 408 Enoch Street in Burlington. Lawrence Summers (Summers), Pinnix's stepfather, stated to Officer Hall that no one from the house at 408 Enoch Street had called police. However, Summers allowed Officer Hall to check inside the house to make sure everything was alright. Summers opened the door to Pinnix'sbedroom. The bedroom light was off, but Officer Hall could see Pinnix face down on the bed, covered with a blanket. Officer Hall checked Pinnix for a pulse but did not find one. Officer Hall further testified that Summers told him that he had last seen Pinnix at approximately 4:00 a.m. when Pinnix came into the bedroom Summers shared with Pinnix's mother. Summers told Officer Hall that he had heard Pinnix and Defendant, who was Pinnix's boyfriend, arguing in Pinnix's bedroom at approximately 5:00 a.m. He heard Pinnix say, "Mama help me. Come get him." Officer Hall testified that Summers said he "thought nothing of [Pinnix's statement] because [Pinnix and Defendant] argued a lot." Summers also told Officer Hall that he left the house early that morning and returned at approximately 6:55 a.m. When Summers returned to the house, he saw Defendant leave the house and get into a cab with three bags of clothes and a small child.
    Laverne Pinnix (Laverne), Pinnix's mother, testified that Pinnix had two children. Laverne testified that Pinnix's youngest daughter (the baby) was two months old at the time of Pinnix's death. Pinnix and her children were living with Laverne and Summers. After the baby was born, Defendant began spending time with Pinnix and would spend the night at Laverne's house "two or three times a week[.]" When Defendant spent the night, the baby would sleep with Pinnix and Defendant and Pinnix's older child would sleep with Laverne. Laverne stated that Pinnix told Defendant he was the baby's father, but that Defendant "had his doubts."    During Laverne's testimony, the State asked Laverne whether Pinnix had told her about any past troubles between Pinnix and Defendant. Defendant objected and the trial court conducted a voir dire hearing outside the presence of the jury. Laverne testified that sometime between 28 April 2004 and 21 June 2004, Pinnix returned to the house and told Laverne that while Pinnix and Defendant were staying in a motel room, Defendant had hit Pinnix with a phone, put his hands around Pinnix's neck, and tried to strangle her. Pinnix was crying and showed Laverne her neck, which had choke marks on it. Laverne said Pinnix told her Defendant was trying to kill her. Laverne further stated that Pinnix said she had struggled with Defendant while they were in the motel, and that she was able to get Defendant off of her. Pinnix then ran out of the motel room and asked a motel employee to call her father for help. Laverne saw Pinnix's father bring her back to the house.
    The State argued that the testimony was admissible under N.C. Gen. Stat. § 8C-1, Rule 404(b), since the State was proceeding on a theory of first-degree murder and Defendant was contending that he lacked the requisite mental state. The State also argued that the testimony was not barred under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). The State further argued that the testimony was admissible as a present sense impression, pursuant to N.C. Gen. Stat. § 8C-1, Rule 803(1), and as a statement of a then existing mental, emotional, or physical condition, pursuant to N.C. Gen. Stat. § 8C-1, Rule 803(3). The trial court found (1) that the contested testimony was admissible under Rule 404(b) as proof ofintent, motive, opportunity, absence of accident, malice, and premeditation and deliberation; (2) that the statements made by Pinnix to Laverne were non-testimonial and therefore not barred by Crawford; (3) that the statements were admissible as present sense impressions under N.C. Gen. Stat. § 8C-1, Rule 803(1); and (4) that the statements were admissible as statements of Pinnix's then existing state of mind, emotional sensation, or physical condition under N.C. Gen. Stat. § 8C-1, Rule 803(3). The trial court also ruled that the statements were relevant, and that the probative value was not outweighed by unfair prejudice to Defendant under N.C. Gen. Stat. § 8C-1, Rule 403. In the presence of the jury, Laverne repeated her voir dire testimony regarding Pinnix's report of the events which had occurred between Pinnix and Defendant at the motel.
    Summers testified that he went to sleep on 20 June 2004 at approximately 9:00 p.m. He woke up at approximately 5:30 a.m., when Pinnix entered the bedroom Summers shared with Laverne and asked Laverne for soda. Pinnix stayed in the bedroom for approximately fifteen to twenty minutes, and then left the bedroom. Summers testified that he got up soon after Pinnix left and decided to go to the store to get cigarettes. He heard Pinnix say from her bedroom, "Mama, you better come get him[.]" Summers testified that Pinnix's voice sounded "normal" and was not "threatening" or very loud. Summers paid no attention to Pinnix because it did not sound to him like anything unusual was going on. When Summers returned from the store about twenty minutes later, he saw a cab waitingoutside the house. He found Defendant in the kitchen with the baby and a bag of clothes. Defendant left the house a few minutes later. Shortly thereafter, Summers heard sirens and went outside where he found police and fire trucks. He told police he had not called 911, but he allowed Officer Hall to check inside the house. Summers and Officer Hall found Pinnix inside her bedroom, lying face down. Summers and Officer Hall were unable to wake Pinnix. On cross-examination, Summers testified that he did not see Pinnix and Defendant fighting a lot.
    Shaneal Moore (Moore) testified that she knew Defendant through one of her friends. She testified that on 21 June 2004, Defendant came to her apartment between 7:00 a.m. and 7:30 a.m. Defendant had the baby and a bag of clothes with him. Defendant told Moore that he and Pinnix had gotten into a fight, and that Defendant had grabbed Pinnix by the neck to push her off of him, and that "he heard a bone in [Pinnix's] neck pop and blood spit out of her mouth." Defendant was shaking and seemed scared. Defendant asked Moore to take care of the baby, and then left Moore's apartment. Police arrived soon thereafter and Moore told them what Defendant had said.
    Kelly Cummings (Agent Cummings), a crime scene specialist with the State Bureau of Investigation, testified that she responded to 408 Enoch Street on 21 June 2004. As part of her investigation, Agent Cummings processed Pinnix's bedroom. She noted a small spiral notebook on a dresser, a blood stain on the carpet, an earring on the floor beside the bed, and two pillows, oneunderneath Pinnix's head and one beside her head. The notebook was opened to a page with the following writing on it:
        Tish, I love you a lot. Even though you f----- my cousin and gave me a disease, but burning me with a cigarette is too much. My arm f--- up from where you bit me at, too. I didn't mean to scratch your face. I love you. BMG Burrow. Me and [the baby]. Take care.

    Detective Mark Yancey (Detective Yancey), with the Burlington Police Department, testified that he was the lead detective who investigated Pinnix's death. Detective Yancey stated that Defendant was arrested on 21 June 2004 and taken to the police station, at which time Defendant waived his Miranda rights. The State asked Detective Yancey whether Defendant said anything to Detective Yancey about what had happened. Detective Yancey answered:
        Can you give me just one minute? [Defendant] explained to us that he and . . . Pinnix had been in an on again off again relationship for several months and they had dated some this summer and fall of 2003 and October of 2003. He had -- in October 2003 he was sentenced to --

Defendant then objected and the trial court excused the jury from the courtroom. Defendant moved for a mistrial. The trial court confirmed with the court reporter that Detective Yancey said "he was sentenced to" but had gotten no further when Defendant objected. The trial court then denied the motion for a mistrial. The jury returned to the courtroom and the trial court gave the following instruction:
        [Trial court]: . . . Ladies and gentlemen, if you'll recall Detective Yancey was on the witness stand and testifying and testified tothe fact that he had advised . . . [D]efendant of his Miranda rights and that . . . [D]efendant agreed to make a statement. And if you recall the last thing that the officer said was something to [the] effect in October he was sentenced.

        Now, I'm instructing you, you're not to consider that statement in any way. I'm ordering you to strike that from your mind and let that be no consideration of that statement in October he was sentenced. I'm striking that from the record and you're not to consider that in any way. If you can follow my instructions, please raise your hand.

        (All hands raised.)

        [Trial court]: All right. Everyone raised their right hand.

        All right. The motion to -- the objection is sustained. The motion to strike is allowed. The Court has instructed the jury that they are not to consider that in any way and all of the jurors have raised their hands and said that they would follow the Court's instruction and would not consider that statement in any way whatsoever.

    Detective Yancey testified that Defendant told him the following regarding the events of 21 June 2004. Defendant said he arrived at the house at approximately 9:00 p.m., and that Pinnix left the house to get something to eat. When Pinnix returned, she and Defendant ate and then went into their bedroom to watch television. The baby was in bed with them. Defendant said he fell asleep between 11:00 p.m. and midnight. He woke up around 5:00 a.m. and the baby was still in the bed, but Pinnix was not. A short time later, Pinnix came into the bedroom and got in bed. Defendant and Pinnix began talking about their relationship, agreed it was not working out, and decided they "should break up."Defendant told Pinnix he wanted custody of the baby, which angered Pinnix. Defendant and Pinnix began to argue. Defendant told Detective Yancey that he tried to put his arm around Pinnix to "make up with her" but she pushed him away. He then began choking Pinnix. She fell off the bed and struck her head on either a table or a television. Defendant saw that Pinnix was bleeding and helped her back onto the bed. Defendant told Pinnix he was going to his mother's house and that he was taking the baby with him. Defendant called a cab and took the baby to Moore's apartment. When he saw police cars riding through the neighborhood, he left the baby with Moore, ran out of the apartment, and went to a friend's house. Defendant's written statement was admitted into evidence. Detective Yancey also noted that Defendant made reference to being burned by a cigarette and bitten in the arm by Pinnix during their struggle.
    During cross-examination, Defendant questioned Detective Yancey about an individual named Nedra Miller (Miller), who had been interviewed by the Phoenix, Arizona Police Department. In her interview with Phoenix police, Miller claimed to have knowledge about Pinnix's murder. The following exchange occurred:
        [Defendant]: Did you come across a lady by the name of Nedra Miller during the course of this investigation?

        [Detective Yancey]: I came across the name and I never spoke with her personally.

        [Defendant]: Was she identified to you as a witness in this case? Eye witness?

        [Detective Yancey]: A potential, yes, sir.
        [Defendant]: Did you ever check into that?

        [Detective Yancey]: We had an interview done with her.

        [Defendant]: Do you know whether or not she was an eye witness to this case?

        [Detective Yancey]: Don't know that she was an eye witness, no.

        [Defendant]: Based on what you know about her do you believe that there's a reason to think that she might have been an eye witness in this case?

        [State]: Objection.

The trial court excused the jury from the courtroom. Detective Yancey testified, outside the presence of the jury, that Phoenix police conducted a courtesy interview of Miller and sent Detective Yancey a copy of the transcript. In her statement, Miller stated that she saw a strangulation on Enoch Street while she was staying at a shelter a few blocks away. Miller stated that she saw a "young person" choke a "young lady" in the front yard at 408 Enoch Street. Miller said she witnessed the strangulation between 6:30 a.m. and 6:40 a.m., and that she saw a cab arrive at 408 Enoch Street at 6:50 a.m. Miller stated that although she had left the shelter to buy cocaine, she had not used cocaine before witnessing the strangulation. Miller heard the female refer to the male as "Bucky" and refer to a newborn baby. Miller saw the female "go unconscious[.]" Miller said she also saw an older lady on the porch of the house holding a three-year-old girl. Defendant stated that he was unable to locate Miller, despite sending an investigator to try to find her, because Miller was apparentlyhomeless in Phoenix.
    The State also questioned Detective Yancey, outside the presence of the jury, about Miller's statement. Detective Yancey testified that the Phoenix police detective (the detective) who conducted the interview with Miller sent a letter with the transcript. The detective noted in the letter that Miller appeared to be high at the time of the interview, and that she told the detective she was a long-time heroin and crack abuser. The detective also indicated in the letter that he had trouble keeping Miller focused during the interview and that she would "stray" from the questions. The detective said that during the interview, Miller's emotions ranged from "crying and being upset to somewhat argumentative." Detective Yancey testified that he also spoke with the detective, who felt that Miller was "possibly . . . jacked up on cocaine and was trying to seek a way out." Detective Yancey confirmed that Miller had stayed at a shelter close to Enoch Street between 20 June and 24 June 2004.
    The trial court ruled that the testimony regarding Miller's statement to Phoenix police was inadmissible hearsay not covered by any exception. In the alternative, the trial court also concluded that the probative value of the statement was more than substantially outweighed by the danger of unfair prejudice to the State pursuant to N.C. Gen. Stat. § 8C-1, Rule 403.
    Dr. Aaron Gleckman (Dr. Gleckman), a former medical examiner for the State of North Carolina, testified that he performed an autopsy on Pinnix's body on 22 June 2004. He found evidence ofmanual strangulation, including extensive hemorrhaging in Pinnix's eyes. He also noticed multiple abrasions on both sides of her neck, and another abrasion on her chin, consistent with fingernail marks. Dr. Gleckman also discovered a C-shaped abrasion on Pinnix's head, a scratch on her forehead, and evidence of blunt trauma to her legs. Dr. Gleckman testified that the bruises he found were consistent with manual strangulation. He concluded that the cause of Pinnix's death was manual strangulation, and that the abrasions on her head and legs did not cause her death.
    Defendant did not present any evidence. During the charge conference, Defendant requested that the jury be instructed on voluntary manslaughter. The trial court concluded there was insufficient evidence to instruct on voluntary manslaughter and denied Defendant's request.

I.

    Defendant first argues that the trial court erred by denying his motion for a mistrial during Detective Yancey's testimony. Defendant argues that Detective Yancey's testimony was "highly prejudicial" and "tipped the balance against [Defendant.]" Defendant argues that the trial court's instruction did not cure the error, but instead emphasized it. We disagree.
    Pursuant to N.C. Gen. Stat. § 15A-1061 (2005), "[t]he [trial court] must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case." "Whether a motion for mistrial should be granted is a matter which rests in the sound discretion of the trial judge, and a mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law." State v. Calloway, 305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982)) (internal citations omitted). Therefore, the trial court's ruling will not be disturbed on appeal absent an abuse of discretion. State v. Boyd, 321 N.C. 574, 579, 364 S.E.2d 118, 120 (1988). Further, "[a] trial court's decision . . . 'is to be given great deference because the trial court is in the best position to determine whether the degree of influence on the jury was irreparable.'" State v. Morgan, 164 N.C. App. 298, 301-02, 595 S.E.2d 804, 808 (2004) (quoting State v. Hill, 347 N.C. 295, 297, 493 S.E.2d 264, 276 (1997), cert. denied, Hill v. North Carolina, 523 U.S. 1142, 140 L. Ed. 2d 1099 (1998)).
    This Court faced a similar set of facts in Morgan. In Morgan, a detective testified about a statement made by the victim. Id. at 300, 595 S.E.2d at 807. In the victim's statement, as read by the detective, the victim stated "the [defendant] said she had already killed someone and that she could kill him, also." Id. The defendant objected, and the trial court gave the following instruction to the jury:
        "Ladies and gentlemen, let me say to you that any reference that was made to any prior criminal activity on the part of the defendant is not appropriate, and you should completely and totally disregard it. If you cannot do that, then I want you to raise your hand at this time. All right, let the record reflect that no one raised his or her hand."
Id. The defendant moved for a mistrial, and the trial court denied the defendant's request. Id. On appeal, we upheld the trial court's decision. Id. at 302, 595 S.E.2d at 808. We noted that the trial court sustained the defendant's objection and gave the jury a curative instruction. Id. The trial court also asked whether the members of the jury could follow that instruction. Id. We found no abuse of discretion. Id.
    We draw the same conclusion in the present case. In the case before us, as in Morgan, the trial court responded similarly by giving a curative instruction to the jury and inquiring as to whether any juror could not follow the trial court's instruction to disregard the statement. Further, unlike in Morgan, Detective Yancey did not complete the statement he was making before being interrupted by Defendant's objection. Defendant has not shown the trial court abused its discretion by denying Defendant's motion for a mistrial, and we overrule this assignment of error.
II.

    Defendant next argues that the trial court erred by not allowing Defendant to cross-examine Detective Yancey regarding the statement made by Miller to Phoenix police. Defendant argues that his constitutional right to cross-examine witnesses against him was violated by the trial court's action.
    Our review of the transcript reveals that Defendant did not raise his confrontation right when he objected to the trial court's decision not to admit this evidence. Further, the trial court's ruling was based only upon the hearsay rules contained in N.C. Gen.Stat. § 8C-1, Rules 801-804, and N.C. Gen. Stat. § 8C-1, Rule 403. Following the trial court's detailed ruling, Defendant asked the trial court to also consider that the statements were not hearsay, pursuant to N.C. Gen. Stat. § 8C-1, Rule 801(c). At no time during the exchange, however, did Defendant assert any constitutional ground for admitting this evidence. Therefore, we do not reach this constitutional argument. State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001) ("Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.").
III.

    Defendant next argues that the trial court erred by allowing Laverne's testimony referencing the events which occurred between Pinnix and Defendant at the motel room. Defendant argues that this testimony was inadmissible (1) pursuant to Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004); (2) under N.C. Gen. Stat. § 8C-1, Rule 404(b); and (3) under N.C. Gen. Stat. § 8C-1, Rule 803(1).
A. Crawford v. Washington

    Defendant argues that the contested testimony was inadmissible under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). In Crawford, the United States Supreme Court held that "[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. at 68, 158 L. Ed. 2d at 203. However, the Supreme Court also held that "[w]herenontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law[.]" Id. Further, although the Supreme Court declined to provide a complete definition of testimonial evidence, it stated "[w]hatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. In Davis v. Washington, ___ U.S. ___, ___, 165 L. Ed. 2d 224, 237 (2006), the Supreme Court stated that statements are "testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to criminal prosecution." Id. at ___, 165 L. Ed. 2d at 237. In analyzing whether a statement was testimonial for purposes of Crawford, our Court has found other statements that were made in the context of a private conversation, outside the presence of any police officer, to be non-testimonial and outside the scope of Crawford. See State v. Lawson, 173 N.C. App. 270, 275-76, 619 S.E.2d 410, 413-14 (2005), disc. review denied, 360 N.C. 293, 629 S.E.2d 276 (2006).
    In the present case, the statements at issue were made by Pinnix to her mother after Pinnix was assaulted by Defendant in a motel room, and after Pinnix fled the motel room to seek assistance from her father. These statements were not made under circumstances that would lead an objective witness to reasonably believe that the statements would be available for later use attrial. Rather, the statements were made in a private conversation outside the presence of any police officer. We conclude that the trial court did not err by concluding that Crawford did not bar admission of the challenged testimony.
B. N.C. Gen. Stat. § 8C-1, Rule 404(b)

    N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) provides in part:
        Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident.

"Evidence of another offense is admissible under Rule 404(b) so long as it is relevant to any fact or issue other than the character of the accused." State v. Simpson, 327 N.C. 178, 185, 393 S.E.2d 771, 775 (1990). Evidence is admissible under N.C.G.S. § 8C-1, Rule 404(b) "if it is substantial evidence tending to support a reasonable finding by the jury that the defendant committed a similar act or crime and its probative value is not limited solely to tending to establish the defendant's propensity to commit a crime such as the crime charged." State v. Stager, 329 N.C. 278, 303-04, 406 S.E.2d 876, 890 (1991). To be similar, "the similarities simply must tend to support a reasonable inference that the same person committed both the earlier and later acts." Id. at 304, 406 S.E.2d at 891.
    In the present case, the trial court found that the acts which occurred at the motel were sufficiently similar to the acts charged and were admissible to show proof of intent, motive, opportunity,absence of accident, malice, and premeditation and deliberation. Defendant was charged with first-degree murder, and to support this charge the State was required to prove, inter alia, premeditation and deliberation. Our Supreme Court has stated:
        In applying Rule 404(b), this Court has repeatedly held that a defendant's prior assaults on the victim, for whose murder [the] defendant is presently being tried, are admissible for the purpose of showing malice, premeditation, deliberation, intent or ill will against the victim.

State v. Alston, 341 N.C. 198, 228-29, 461 S.E.2d 687, 703 (1995), cert. denied, Alston v. North Carolina, 516 U.S. 1148, 134 L. Ed. 2d 100 (1996). We conclude that the trial court did not err by concluding that this evidence was admissible under N.C.G.S. § 8C-1, Rule 404(b).
C. N.C. Gen. Stat. § 8C-1, Rule 803(1)

    Defendant also argues that Laverne's testimony was hearsay, and improperly admitted by the trial court as a present sense impression pursuant to N.C. Gen. Stat. § 8C-1, Rule 803(1).
    N.C. Gen. Stat. § 8C-1, Rule 803 (2005) lists various exceptions to the general rule excluding hearsay testimony, including a present sense impression, defined as "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." In State v. Cummings, 326 N.C. 298, 314, 389 S.E.2d 66, 75 (1990), a victim's mother was permitted to testify that the victim came to her mother's house crying, stating that the defendant had kicked her out of his house. Our Supreme Court foundthat the trial court had properly admitted this testimony as a present sense impression because the statement was made in close proximity to the event, after a drive from the defendant's house to the victim's mother's house. Id. Similarly, we conclude that the trial court did not err by allowing Laverne to testify regarding Pinnix's statements.
    We also note that the trial court admitted Laverne's testimony as a statement of the declarant's then existing mental, emotional, or physical condition under N.C. Gen. Stat. § 8C-1, Rule 803(3). Defendant does not argue before this Court that the trial court improperly admitted the testimony under this hearsay exception. Therefore, even if we agreed that the testimony was improper under N.C. Gen. Stat. § 8C-1, Rule 803(1), N.C. Gen. Stat. § 8C-1, Rule 803(3) remains as an unchallenged basis for admission.
IV.

    Lastly, Defendant argues that the trial court erred by refusing to instruct the jury on voluntary manslaughter. We disagree.
    It is well-settled that a trial court is required to give instructions on all lesser-included offenses that are supported by the evidence. State v. Bumgarner, 147 N.C. App. 409, 417, 556 S.E.2d 324, 330 (2001). "Voluntary manslaughter is a lesser included offense supported by an indictment charging murder in the first degree." State v. Price, 344 N.C. 583, 589, 476 S.E.2d 317, 320 (1996). "Where the State's evidence is clear and positive as to each element of the offense charged and there is no evidenceshowing the commission of a lesser included offense, it is not error for the [trial court] to refuse to instruct on the lesser offense." State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985). Conflicts in the evidence which require instruction on the lesser-included offense may arise from evidence introduced by the State or by the defendant, and may arise where only the State has introduced evidence. State v. Thomas, 325 N.C. 583, 594, 386 S.E.2d 555, 561 (1989) (internal citations omitted).
    "[V]oluntary manslaughter is an intentional killing without premeditation, deliberation or malice but done in the heat of passion suddenly aroused by adequate provocation[.]" State v. Wallace, 309 N.C. 141, 149, 305 S.E.2d 548, 553 (1983). To warrant an instruction on voluntary manslaughter, there must be evidence tending to show (1) the victim was killed in the heat of passion; (2) the defendant's passion was provoked by acts of the victim which constituted adequate provocation; and (3) the killing occurred immediately after the acts constituting adequate provocation. State v. Tidwell, 323 N.C. 668, 673, 374 S.E.2d 577, 580 (1989).
    We conclude that there was no evidence presented that Defendant acted in the heat of passion. Even if we assume arguendo that evidence supported the other required elements of voluntary manslaughter, none of the evidence offered by the State tended to show that Defendant acted in the heat of passion. Accordingly, the trial court properly refused Defendant's request for an instruction on voluntary manslaughter.    No error.
    Judges ELMORE and STEPHENS concur.
    Report per Rule 30(e).

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