State v. Franks

WHICHARD, Judge.

The issue is whether the court erred in refusing to instruct the jury on false imprisonment, a lesser included offense of kidnapping. We hold that the court did not err.

The necessity for instructing as to a lesser included offense arises only when there is evidence from which the jury could find that the crime of lesser degree was committed. State v. Bradshaw, 27 N.C. App. 485, 487, 219 S.E. 2d 561, 562, disc. rev. denied, 289 N.C. 299, 222 S.E. 2d 699 (1975). “The presence of such evidence is the determinative factor.” Id., quoting State v. Melton, 15 N.C. App. 198, 189 S.E.…