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State v. Wise

Court of Appeals of North Carolina

December 17, 2019

STATE OF NORTH CAROLINA
v.
JERVARE MOQUAN WISE, Defendant.

          Heard in the Court of Appeals 14 November 2019.

          Appeal by Defendant from judgment entered 11 October 2018 by Judge Lisa C. Bell in Mecklenburg County, No. 16CRS212439 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Barry H. Bloch, for the State.

          Cooley Law Office, by Craig M. Cooley, for the Defendant.

          DILLON, JUDGE

         Defendant Jervare Moquan Wise appeals from a judgment finding him guilty of attempted robbery with a dangerous weapon. After careful review, we conclude that the trial court committed reversible error by not instructing the jury on the lesser included offenses of common law robbery.

         I. Background

         Defendant was arrested and tried by a jury for attempted robbery with a firearm based on events that occurred at a convenience store.

         The evidence introduced by the State at trial tended to show as follows:

         On 30 March 2016, Defendant and another man entered a convenience store shortly before midnight. Defendant jumped over the counter, pointed what appeared to be a gun at the store clerk and demanded money. When the store clerk replied that he had already put the register's money in the safe, both men fled the scene.

         The detective testified at trial that during the investigation Defendant admitted to the attempted robbery but claimed that the gun was actually a BB gun painted black. No gun or BB gun was ever recovered.

         During the charge conference, Defendant requested jury instructions on attempted common law robbery and simple assault, lesser included offenses of attempted robbery with a dangerous weapon. The trial court denied Defendant's request and instructed the jury on the charge of attempted robbery with a firearm.

         Defendant was found guilty of attempted robbery with a firearm. ...


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