State v. Wise, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 17, 2019)

The defendant and another person committed an attempted robbery of a convenience store in which they pointed what appeared to be a gun at the clerk and demanded money. When the clerk explained that he had already put the money in the store’s safe, the two men fled. The defendant was eventually charged with attempted armed robbery, but the weapon used was never found. At trial, a detective testified for the state that the defendant had admitted to committing the attempted robbery, but claimed that it was only a BB gun and not a real gun. The jury convicted the defendant of attempted armed robbery, and the defendant appealed. The defendant argued that the trial court erred by refusing to instruct the jury on the lesser-included offense of common law robbery. The appellate court agreed and vacated the conviction. The trial court is required to instruct the jury on the lesser-included offense of common law robbery “if there is any evidence – whether offered by the State or by the defendant – that the implement used was not a deadly weapon.” In this case, since the state presented some evidence (the defendant’s statement, as testified to by the detective) that the purported firearm was only a BB gun, the trial court was required to instruct the jury on the lesser offense.