State v. Mayberry

MITCHELL, Judge.

The defendant first assigns as error the failure of the trial court to instruct the jury with regard to a possible verdict of *512nonfelonious assault. The defendant contends that nonfelonious assault is a lesser included offense of the offense of assault with a firearm upon a law enforcement officer in the performance of his duties in violation of G.S. 14-34.2. The defendant further contends that the lesser included offense was supported by the evidence.

Both G.S. 15-169 and 170 allow a conviction of a lesser included offense of the crime charged when there is evidence tending to…