State v. Taylor

WHICHARD, Judge.

Defendant contends the court erred in failing to instruct on the lesser included offense of attempted second degree rape. “ ‘The sole factor determining the judge’s obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.’ ” State v. Peacock, 313 N.C. 554, 558, 330 S.E. 2d 190, 193 (1985), quoting State v. Wright, 304 N.C. 349, 351, 283 S.E. 2d 502, 503 (1981). Where the State’s evidence is clear and positive as to each element of the…