Criminal Practice – Attempted Armed Robbery – BB Gun – Jury Instructions – Lesser Included Offense

At defendant’s trial for attempted armed robbery of a convenience store, a prosecution witness testified that defendant admitted to trying to rob the store but claimed that the “gun” was actually a BB gun painted black. Because of this testimony, the trial court erred when it denied defendant’s request for jury instructions on the lesser included offense of attempted common law robbery.

Defendant is entitled to a new trial.

State v. Wise (Lawyers Weekly No. 011-331-19, 6 pp.) (Chris Dillon, J.) Appealed from Mecklenburg County Superior Court (Lisa Bell, J.) Barry Bloch for the state; Craig Cooley for defendant. N.C. App.