State v. Drumgold

COPELAND, Justice.

The defendant contends the trial court erred in not submitting second degree rape to the jury as an alternative to a verdict of first degree rape. We agree; therefore, the defendant must be granted a new trial.

It is well settled that “a defendant is entitled to have all lesser degrees of offenses supported by the evidence submitted to the jury as possible alternate verdicts.” State v. Palmer, 293 N.C. 633, 643-44, 239 S.E. 2d 406, 413 (1977). On the other hand, the trial court need not submit lesser degrees of a crime to the jury “when the State’s evidence is positive as to…