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STATE v. NELSON

No. 199A94.

462 S.E.2d 225 (1995)

341 N.C. 695

STATE of North Carolina v. Gary Dean NELSON.

Supreme Court of North Carolina.

October 6, 1995.

Attorney(s) appearing for the Case

Michael F. Easley, Attorney General by William N. Farrell, Jr., Senior Deputy Attorney General, and Ellen B. Scouten, Assistant Attorney General, for the State-appellant.

Geoffrey C. Mangum, Greensboro, for defendant-appellee.

WEBB, Justice.

The defendant contends and the Court of Appeals held it was error not to submit to the jury the lesser included offense of attempted second-degree rape. The Court of Appeals, relying on State v. Williams, 314 N.C. 337, 333 S.E.2d 708 (1985), said the defendant's unequivocal denial that a penetration had occurred required the court to submit the lesser included offense to the jury.

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