State v. Nelson

WEBB, Justice.

The defendant contends and the Court of Appeals held it was error not to submit to the jury the lesser included offense of attempted second-degree rape. The Court of Appeals, relying on State v. Williams, 314 N.C. 337, 333 S.E.2d 708 (1985), said the defendant’s unequivocal denial that a penetration had occurred required the court to submit the lesser included offense to the jury.

We have held that a lesser offense should not be submitted to the jury if the evidence is sufficient to support a finding of all the elements of the greater offense, and there is no evidence to support…