State v. Wilson

               IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 187A22

                              Filed 15 December 2023

STATE OF NORTH CAROLINA

              v.
JAHZION WILSON


      Appeal pursuant to N.C.G.S. § 7A-30(2) (2021) from the decision of a divided

panel of the Court of Appeals, 

, 

 (2022), finding no

error after an appeal from a judgment entered on 13 June 2019 by Judge Forrest D.

Bridges in Superior Court, Mecklenburg County. Heard in the Supreme Court on 7

November 2023.


      Joshua H. Stein, Attorney General, by Marissa K. Jensen, Special Deputy
      Attorney General, for the State-appellee.

      Glenn Gerding, Appellate Defender, by David W. Andrews, Assistant Appellate
      Defender, for defendant-appellant.


      NEWBY, Chief Justice.

      In this case we consider whether the trial court properly denied defendant’s

request for a jury instruction on second-degree murder as a lesser-included offense of

first-degree murder under the felony-murder theory. When the State charges a

defendant with first-degree murder only under the felony-murder theory, our cases

have held that the defendant may be entitled to a jury instruction on second-degree

murder as a lesser-included offense. But in such a scenario, the defendant is only


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entitled to an instruction on second-degree murder if the evidence of the underlying

felony is in conflict and the evidence would support second-degree murder. To create

a conflict in the evidence supporting the underlying felony, a defendant must identify

evidence other than his own statements denying his involvement in the criminal

offense. In the present case, we conclude that there is not a conflict in the evidence

supporting the underlying felony of attempted robbery with a dangerous weapon.

Accordingly, defendant was not entitled to an instruction on second-degree murder.

The decision of the Court of Appeals is modified and affirmed.

      On 16 January 2018, defendant was indicted for attempted robbery with a

dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and

first-degree murder. Regarding the first-degree murder charge, the State proceeded

solely on a theory of felony murder based on attempted robbery with a dangerous

weapon.

      At trial the State’s evidence tended to show the following. On 18 June 2017,

which was Father’s Day, officers from the Charlotte-Mecklenburg Police Department

responded to a shooting and potential robbery at the Arbor Glen Apartments in

Charlotte, North Carolina. According to officer testimony, the officers found Zachary

Finch deceased from a gunshot wound with approximately two hundred dollars of

loose cash and a bloodied iPhone on or near his body. Although officers did not locate

either the firearm or the discharged bullet, they found a shell casing at the scene of

the crime. The forensic pathologist and medical examiner confirmed that Finch was


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killed by a gunshot wound. At that time, however, the officers did not identify any

suspects.

      Later that day, officers learned from Finch’s parents that Finch had arranged

to purchase a cell phone via the “LetGo” app. According to Finch’s mother, Finch was

supposed to purchase the cell phone from “a dad with his two kids.” The officers

subsequently obtained records from LetGo, however, and they eventually discovered

that Finch had arranged to buy the cell phone from defendant.

      Officers interviewed defendant, who was fifteen years old at the time, on 20

July 2017, and the State entered a transcript and recording of that interview into

evidence. Notably, defendant did not testify at his trial, and this interview is the only

account of the incident from defendant’s perspective.

      According to defendant’s statements to the interviewing officer, defendant had

arranged to sell a cell phone to Finch through LetGo. Defendant recounted that after

agreeing with Finch to meet at the Arbor Glen Apartments, he went to meet Finch

with his friends, “Tink” and Demonte “Monte” McCain.1 Defendant explained that

because he did not know Finch, and because he had experienced bad transactions in

the past, defendant “didn’t really trust [the transaction].” As such, defendant told the

interviewing officer that he asked Tink to speak with Finch. In exchange, defendant



      1 The evidence tended to show that Monte was not part of any arrangement with

defendant and/or Tink. In fact, defendant expressly stated to the interviewing officer that
“[Monte] was never in”—i.e., Monte was never part of the arrangement. Rather, according to
defendant’s statements, Monte coincidentally was in the area at this time.

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said that he promised to “break[ ] [Tink] off” sixty dollars—that is, to give Tink a

portion of the money he received. Defendant stated that when Finch arrived, Finch

spoke with Tink about the price of the cell phone and the SIM card. According to

defendant, however, after Tink and Finch spoke for several minutes, the “deal went

wrong.” Defendant recounted that Tink pointed a gun at Finch, who turned to run

away because “he was fixin[g] to get robbed by . . . Tink.” Defendant stated that Tink

shot one time, striking and killing Finch. Defendant then told the interviewing officer

that after the incident, he, Tink, and Monte ran to Tink’s sister’s house.

      Throughout the police interview, the interviewing officer asked defendant

several times if he knew that Tink went to the transaction armed with a firearm.

Defendant initially denied it, but he eventually admitted to the interviewing officer

that, prior to the meeting with Finch, he knew Tink was bringing a gun to the

meeting. Similarly, the interviewing officer asked defendant if he brought a firearm

to the meeting with Finch. Again, defendant initially denied that he brought a

firearm, but he eventually admitted to bringing one of Tink’s guns with him.

Defendant also stated that Monte brought a firearm to the transaction.

      Additionally, the interviewing officer asked defendant whether he was going

to actually sell Finch the cell phone. Defendant maintained that he planned to sell

the cell phone, but he also revealed to the interviewing officer that Tink had proposed

robbing Finch. Defendant said that he tried to dissuade Tink, telling him, “[Y]ou ain’t

got to rob him just sell him the phone.” But when the interviewing officer asked if he


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knew that Tink was going to rob Finch, defendant replied, “I didn’t know for sure if

[Tink] was gonna rob him[,] but he had talked about it, yes.” Defendant clarified,

however, that there was no plan to shoot Finch.

      In addition, the State called Ashanti Gatewood, who was defendant’s girlfriend

in the summer of 2017, to testify. Gatewood testified that defendant called her after

the events of 18 June 2017 and told her that “he just shot and robbed somebody.” The

State also called defendant’s friend, Travis Moore, to testify. Two portions of Moore’s

testimony are pertinent to this appeal. First, Moore testified that defendant planned

to buy a cell phone, not sell one. Second, Moore testified that defendant told him “that

he killed somebody around . . . Father’s Day.”

      Defendant did not put on any evidence at trial. Prior to the jury charge,

however, defendant requested that the trial court instruct the jury on second-degree

murder as a lesser-included offense of first-degree murder. The trial court denied

defendant’s request and instructed the jury on first-degree murder under the

felony-murder theory, attempted robbery with a dangerous weapon, and conspiracy

with Monte to commit robbery with a dangerous weapon. The trial court further

instructed the jury that it could find defendant had committed the criminal acts

himself or by acting in concert with another. The jury found defendant guilty of

attempted robbery with a dangerous weapon and first-degree murder based upon the




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felony-murder rule.2

      On appeal, defendant argued, among other things, that the trial court erred by

failing to instruct the jury on second-degree murder as a lesser-included offense of

first-degree murder. State v. Wilson, 

, 421, 

, 44 (2022).

The Court of Appeals’ majority found no error in defendant’s trial. It relied on this

Court’s statement in State v. Gwynn that “when the [S]tate proceeds on a first-degree

murder theory of felony murder only, the trial court must instruct on all

lesser-included offenses if the evidence of the underlying felony supporting felony

murder is in conflict and the evidence would support a lesser-included offense of

first-degree murder.” 

, 

 (2008) (internal

punctuation omitted) (quoting State v. Millsaps, 

, 

 (2002)), construed in Wilson, 283 N.C. App. at 435–38, 873 S.E.2d at 51–53.

Focusing on the second part of the test, the Court of Appeals’ majority concluded that

defendant was not entitled to a second-degree murder instruction because “there

[was] no evidence in the record from which a rational juror could find [d]efendant

guilty of second-degree murder and not guilty of felony murder.” Wilson, 283 N.C.

App. at 436, 873 S.E.2d at 52 (determining that whether the evidence supporting the

underlying felony was in conflict was “irrelevant”).

      The dissent, in contrast, relied on this Court’s statement in Gwynn that “the



      2 The jury acquitted defendant of conspiracy with Monte to commit robbery with a

dangerous weapon.

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trial court should not instruct on lesser-included offenses if the evidence as to the

underlying felony supporting felony murder is not in conflict and all the evidence

supports felony murder.” 

, 

 (internal punctuation

omitted) (quoting Millsaps, 

, 

), construed in Wilson,

283 N.C. App. at 440–44, 873 S.E.2d at 55–57 (Stroud, C.J., concurring in part and

dissenting in part). The dissent reasoned that if any evidence supported the

contention that defendant did not attempt to rob Finch, then defendant was entitled

to an instruction on second-degree murder as a lesser-included offense. Wilson, 283

N.C. App. at 442, 873 S.E.2d at 56. According to the dissent, defendant’s statements

that he intended to sell the phone and not rob Finch amounted to “conflicting

evidence” that “present[ed] a question of credibility and weight of the evidence [that]

must be resolved by a jury.”3 Id. at 443, 873 S.E.2d at 56. The dissent also reasoned

that the error was prejudicial notwithstanding defendant’s conviction of attempted

robbery with a dangerous weapon because, in essence, the jury’s only options were to

convict or acquit defendant outright. Id. at 444–45, 873 S.E.2d at 57. Defendant




       3 The dissent at the Court of Appeals emphasized that defendant was acquitted of a

conspiracy to commit robbery with a dangerous weapon, stating “it appear[ed] the jury
believed at least some of defendant’s account of events or was not fully convinced by the
State’s evidence regarding a plan to commit robbery.” Id. at 443–44, 873 S.E.2d at 57. The
dissent at this Court also adopts this reasoning. We note, however, that the conspiracy charge
alleged a conspiracy between defendant and Monte, who does not appear to have been a part
of the arrangements between defendant and Tink. Therefore, defendant’s acquittal of the
conspiracy charge with Monte does not inform whether defendant and Tink planned to rob
Finch.

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appealed to this Court based on the dissent at the Court of Appeals.4

      The issue here is whether the Court of Appeals erred in holding that defendant

was not entitled to an instruction on second-degree murder. We review decisions of

the Court of Appeals for errors of law. State v. Brooks, 

, 

 (1994). When determining whether the evidence is sufficient for the

submission of a lesser-included offense, we view the evidence in the light most

favorable to the defendant. State v. Barlowe, 

, 

(1994).

      “[A] defendant is entitled to have all lesser degrees of offenses supported by

the evidence submitted to the jury as possible alternate verdicts.” State v. Palmer,

, 643–44, 

 (1977). When determining whether a

defendant is entitled to an instruction on a lesser-included offense, the first

determination is “whether the lesser offense is, as a matter of law, an included offense

of the crime for which [the] defendant is indicted.” State v. Thomas, 

, 

 (1989). Then the court must determine whether the evidence

supports a conviction of the lesser-included offense. 

, 

.

Specifically, when the State charges first-degree murder but proceeds only under the

felony-murder theory, the trial court must instruct on all lesser-included offenses if


      4 See N.C.G.S. § 7A-30(2) (2021), repealed by Current Operations Appropriations Act

of 2023, S.L. 2023-134, § 16.21(d), https://www.ncleg.gov/EnactedLegislation/SessionLaws/
PDF/2023-2024/SL2023-134.pdf. The repeal of N.C.G.S. § 7A-30(2) only applies to cases filed
with the Court of Appeals on or after 3 October 2023. See Current Operations Appropriations
Act § 16.21(e).

                                            -8-
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                                   Opinion of the Court



(1) the evidence supporting the underlying felony is “in conflict,” and (2) the evidence

would support a lesser-included offense of first-degree murder. Gwynn, 

, 

 (quoting Millsaps, 

, 

).

      For evidence to be “in conflict,” there must be evidence that tends to negate the

State’s positive evidence as to the elements of the crime. Thomas, 

,

. “Such conflicts may arise from evidence introduced by the State,

or the defendant. They may [also] arise when only the State has introduced evidence.”

 (citations omitted). In order to identify a conflict in the evidence, however, the

defendant must rely on more than his own statements denying his involvement in

the crime. See, e.g., State v. Strickland, 

, 

 (1983),

overruled on other grounds by 

, 

 (1986); State v. Thomas,

, 

 (1999). Indeed,

             [t]he determinative factor is what the State’s evidence
             tends to prove. If the evidence is sufficient to fully satisfy
             the State’s burden of proving each and every element of the
             offense of murder in the first degree . . . and there is no
             evidence to negate these elements other than defendant’s
             denial that he committed the offense, the trial judge should
             properly exclude from jury consideration the possibility of
             a conviction of second degree murder.

Millsaps, 

, 

 (emphasis added) (quoting Strickland,

, 

). Because “the underlying felony constitutes an

element of first-degree murder” when the State proceeds under the felony-murder

theory, id. at 560, 

, the same standard applies when considering if



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there is a conflict in the evidence of the underlying felony.5

       If there is a conflict in the evidence supporting the underlying felony, the

evidence must then also support a lesser-included offense of first-degree murder.

Gwynn, 

, 

. To warrant a lesser-included offense

instruction, the evidence must “permit the jury rationally to find defendant guilty of

the lesser offense and to acquit him of the greater.” Millsaps, 

, 

 (emphasis added). When the State charges first-degree murder but

proceeds only under the felony-murder theory, the “defendant is entitled to a

second-degree murder instruction only if evidence also tend[s] to show that the

murder was not committed in the course of the commission of a felony.” State v.

Wilson, 

, 

 (2001), overruled on other grounds,

, 

.

       If there is a conflict in the evidence and the evidence supports an instruction


       5 Contrary to the dissent’s assertion, this rule does not clash with Beck v. Alabama,

, 

 (1980). There, the United States Supreme Court observed how
the defendant’s statements contradicted the State’s evidence. 

 at 629–30, 100 S. Ct. at
2385–86. It then made this observation: “As the State has conceded, absent the statutory
prohibition on such instructions, this testimony would have entitled petitioner to a lesser
included offense instruction on felony murder as a matter of state law.” 

, 

 (emphasis added); see also 

 at 630 n.5, 

 n.5. Read in context, the
Court’s statement was not a declaration of a universal rule applicable to all states. Rather, it
was simply a summary of Alabama’s law and how it applied to the facts of that case. As the
Court itself observed, “the [s]tates vary in their descriptions of the quantum of proof
necessary to give rise to a right to a lesser included offense instruction,” 

 at 636 n.12, 

 n.12, and it did not purport to hold that a defendant is always entitled to a
lesser-included offense instruction when his statements contradict the State’s evidence.
Therefore, nothing in Beck casts doubt on this Court’s rule that a defendant must identify
more than his own statements denying his involvement in a crime to create a conflict in the
evidence.

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                                  Opinion of the Court



on a lesser-included offense, the trial court must give an instruction on the

lesser-included offense. Gwynn, 

, 

. With these

principles in mind, we turn to the present case.

      We start by describing the relevant crimes. As noted, defendant was tried for

first-degree murder under the felony-murder theory with attempted robbery with a

dangerous weapon as the underlying felony. Defendant insists he was entitled to an

instruction on second-degree murder as a lesser-included offense.

      “The crime is first-degree murder,” and felony murder is a theory that the State

may use to pursue a conviction. Millsaps, 

, 

. Felony

murder is a murder “committed in the perpetration or attempted perpetration of any

arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed

or attempted with the use of a deadly weapon.” N.C.G.S. § 14-17(a) (2021) (emphasis

added). See generally State v. Juarez, 

, 

 (2016)

(observing that the felony-murder theory is “the legislature’s deliberate policy choice

to hold individuals accountable for deaths occurring during the commission of

felonies, regardless of whether the murder was intentional or unintentional” (internal

quotation marks omitted) (quoting State v. Bell, 

, 

 (1994))).

      In this case, attempted robbery with a dangerous weapon is the felony

underlying felony murder. Under our laws, if an individual intends to commit a crime

and performs an overt act beyond mere preparation for that purpose but falls short


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                                  Opinion of the Court



of completing the criminal offense, he is guilty of attempting the crime. State v.

Melton, 

, 

 (2018). Specifically, “[a]n attempted

robbery with a dangerous weapon occurs when a person, with the specific intent to

unlawfully deprive another of personal property by endangering or threatening his

life with a dangerous weapon, does some overt act calculated to bring about th[at]

result.” State v. Allison, 

, 

 (1987); cf. N.C.G.S.

§ 14-87(a) (2021) (criminalizing robbery with a firearm or other dangerous weapon).

      Second-degree murder is “the unlawful killing of a human being with malice

but without premeditation and deliberation.” State v. Thibodeaux, 

,

 (2000) (quoting State v. Flowers, 

, 

 (1997)); see also N.C.G.S. § 14-17(b) (2021). Malice may be established in several

ways: (1) express hatred, ill-will, or spite; (2) commission of an inherently dangerous

act in such a reckless and wanton manner as to manifest a mind utterly without

regard for human life and social duty and deliberately bent on mischief; or (3) a

condition of mind which prompts a person to take the life of another intentionally

without just cause, excuse, or justification. State v. Coble, 

, 450–51, 

 (2000). Malice may also be established by the use of a deadly weapon to

inflict a wound that proximately results in death. 

, 

.

      For each of these offenses, “[h]e who actually perpetrates the crime . . . by his

own hand” is guilty of the crime. State v. Small, 

, 

 (1980), superseded in part by statute, An Act to Abolish the Distinction Between


                                         -12-
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                                     Opinion of the Court



Accessories Before the Fact and Principals and to Make Accessories Before the Fact

Punishable as Principal Felons, ch. 686, § 1, 

, 984 (codified

as amended at N.C.G.S. § 14-5.2). But furthermore, a person may be guilty if he “acts

in concert” with the crime’s principal perpetrator. Id. Indeed,

                [i]f two persons join in a purpose to commit a crime, each
                of them, if actually or constructively present, is not only
                guilty as a principal if the other commits that particular
                crime, but he is also guilty of any other crime committed by
                the other in pursuance of the common purpose or as a
                natural and probable consequence thereof.

State v. Barnes, 

, 

 (1997) (internal punctuation

omitted) (quoting State v. Erlewine, 

, 

 (1991)).

In other words, a person who works together with another to bring about a criminal

objective may be convicted of the same crime as the one who actually perpetrates the

criminal act.

      Although sharply divided, this Court ruled that, as a matter of law,

second-degree murder is a lesser-included offense of first-degree murder, even when

the State proceeds under the felony-murder theory. Thomas, 325 N.C. at 592–93, 

. This Court did so despite second-degree murder having essential

elements that are not essential elements of first-degree murder when pursued under

the felony-murder theory. See 

 at 600–05, 386 S.E.2d at 564–68 (Mitchell, J.,

dissenting) (reasoning that, under a definitional test, second-degree murder is not a

lesser-included offense of first-degree murder when pursued under the felony-murder

theory because it has two different essential elements: (1) malice and (2) an

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                                      Opinion of the Court



intentional act that proximately causes the victim’s death). Nevertheless, because the

dissent below did not draw this holding into question and the State did not seek

discretionary review, we turn our attention to the issue at hand: whether, under

Gwynn, the evidence supported a second-degree murder instruction in this case. See

N.C. R. App. P. 16(b) (“When the sole ground of the appeal of right is the existence of

a dissent in the Court of Appeals, review by the Supreme Court is limited to a

consideration of those issues that are . . . specifically set out in the dissenting opinion

as the basis for that dissent . . . .”).

       Under the framework set out in Gwynn, we must first determine if the evidence

of the underlying felony of attempted robbery with a dangerous weapon is “in

conflict.” Gwynn, 

, 

. At the outset, we note that the

State presented positive evidence as to each element of attempted robbery with a

dangerous weapon. First, the evidence showed that defendant and Tink discussed the

idea of robbing Finch before meeting him. Defendant and Tink also agreed to split

the money between them. Thereafter, defendant armed himself with one of Tink’s

weapons, and both he and Tink went armed with firearms to meet Finch. Defendant’s

statements indicated that Tink pointed his gun at Finch at the meeting in order to

rob him. Furthermore, Gatewood’s testimony that defendant admitted to “sho[oting]

and robb[ing] somebody” and Moore’s testimony that defendant admitted to “kill[ing]

somebody” suggest that defendant was personally involved in the attempted robbery

with a dangerous weapon. Defendant, however, proffers three arguments as to why


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                                     Opinion of the Court



the evidence is in conflict. Each is unavailing.

      First, defendant insists that Travis Moore’s statement that defendant planned

to buy a cell phone, not sell one, creates a conflict in the evidence. Defendant,

however, does not explain how this discrepancy creates a conflict in the evidence

supporting attempted robbery with a dangerous weapon. At most, it creates a conflict

as to what object of Finch’s personal property may have been the target of the

attempted robbery: his money or his cell phone. Even viewing this discrepancy in the

light most favorable to defendant, we hold that it does not negate any element of

attempted robbery with a dangerous weapon, and therefore it does not create a

conflict in the evidence.

      Second, defendant argues that the loose cash found on or near Finch’s body

creates a conflict in the evidence. According to defendant, this fact suggests that

defendant did not have the specific intent to rob Finch. This argument, however,

ignores the fact that attempted robbery with a dangerous weapon is an inchoate

crime, meaning the attempted crime is not completed. Inchoate, Black’s Law

Dictionary (11th ed. 2019) (defining “inchoate” as “[p]artially completed or

imperfectly formed; just begun”). Defendant therefore did not need to complete the

robbery to be guilty of attempted robbery with a dangerous weapon. Thus, the

presence of the cash on or near the victim’s body does not negate evidence that

defendant attempted to rob Finch with a dangerous weapon, and therefore it does not

create a conflict in the evidence.


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                                    Opinion of the Court



      Third, defendant’s principal argument is that his statements that he planned

to sell his cell phone rather than rob Finch create a conflict in the evidence supporting

the underlying felony of attempted robbery with a dangerous weapon. This Court’s

precedents foreclose defendant’s argument. E.g., Millsaps, 

, 

; Thomas, 

, 

 (“[T]he only evidence

offered by defendant to negate first-degree murder was his own testimony denying

his involvement in the crime, which alone does not tend to negate premeditation and

deliberation.” (emphasis added)).6 Defendant’s statements that he planned to sell the

cell phone and not rob Finch are, in essence, the same as a denial that he was involved

in Tink’s scheme to rob Finch. Therefore, his statements alone do not create a conflict

in the evidence supporting attempted robbery with a dangerous weapon.

      Defendant, however, invites this Court to distinguish Thomas, arguing that

case involved a “blanket denial of guilt” whereas “[his] statements were far more than

mere denials.” According to defendant, “his statements negated a specific element of

the State’s theory of acting in concert.” We do not agree. In Thomas, the defendant

was charged with first-degree murder based on premeditation and deliberation and

the felony-murder theory. 

, 

. The defendant, who

testified at trial and admitted to being at the victim’s home on the night of the


      6  Although there are cases from this Court where we found that a defendant’s
statements generated a conflict in the evidence, see, e.g., Thomas, 325 N.C. at 595–98, 386
S.E.2d at 562–63; State v. Camacho, 

, 231–33, 

, 12–13 (1994), those
cases were abrogated by our subsequent holdings in Thomas, 

, 

 (1999), and Millsaps, 

, 

 (2002).

                                           -16-
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                                   Opinion of the Court



murder, gave a detailed account of the night’s events. Id. at 327, 

.

According to his testimony, the defendant drove another individual “to a ‘white dude’s

house’ to settle a drug debt.” 

 The defendant stated, however, “that when he left

the house . . . , [the other individual] stayed behind, and [the victim] was still alive.”

 Clearly, the defendant’s statements in Thomas were far more than “blanket

denials of guilt.” Thus, the holding in Thomas is applicable to the present case.

      Because there was not a conflict in the evidence, we need not proceed to the

next step of the Gwynn analysis to consider whether the evidence would support a

lesser-included offense of first-degree murder. Defendant was not entitled to an

instruction on second-degree murder as a lesser-included offense. Therefore, the trial

court did not err in refusing to give the jury an instruction on second-degree murder.

The decision of the Court of Appeals is modified and affirmed.

      MODIFIED AND AFFIRMED.




                                          -17-
      Justice EARLS dissenting.


      Under deep-seated principles and long-standing precedent, a defendant is

“entitled to have all lesser degrees of offenses supported by the evidence submitted to

the jury as possible alternate verdicts.” State v. Palmer, 

, 643–44 (1977).

We have minted special rules when the State prosecutes a defendant for first-degree

felony murder. In those cases, a trial judge must instruct the jury on a lesser-included

offense if (1) the evidence of the underlying felony is “in conflict” and (2) the evidence

would support a lesser-included offense of first-degree murder. State v. Gwynn, 

 (2008).

      The majority here stops after the first step. As it defines it, a conflict exists—

and triggers a lesser-included offense instruction—if evidence “tends to negate the

State’s positive evidence as to the elements of the crime.” But not all evidence counts,

says the majority. More specifically, a defendant’s “own statements denying his

involvement in the criminal offense” do not raise a conflict in the evidence. Applying

that rule to Mr. Wilson’s case, the majority finds no evidentiary conflict that required

a lesser-included offense instruction.

      I disagree with the majority’s artificially truncated rule. In practice, it

threatens unfair and impractical results. It also clashes with the principles animating

our lesser-included offense jurisprudence. In my view, the evidence was “in conflict”

on Mr. Wilson’s specific intent to rob Mr. Finch. See 

 Because of that conflict, I

would proceed to Gwynn’s second step and find that, since second-degree murder is a

                                          -18-
                                   STATE V. WILSON

                                   Earls, J., dissenting



lesser-included offense of first-degree murder, the trial court should have instructed

jurors on that crime.

I.   What did the State need to prove to convict Mr. Wilson of first-degree
                                felony murder?

      To convict Mr. Wilson of felony murder—a species of first-degree murder—the

State had to prove that Mr. Finch’s “killing took place while the accused was

perpetrating or attempting to perpetrate one of the enumerated felonies.” State v.

Richardson, 

 (1995). In this case, the “enumerated” felony was

attempted robbery with a dangerous weapon. Attempted robbery is an inchoate

crime—a defendant need not complete the offense to have committed it. Even so, the

State had to prove that Mr. Wilson specifically intended to “unlawfully deprive” Mr.

Finch of his “personal property by endangering or threatening his life with a

dangerous weapon.” State v. Allison, 

 (1987). Intent established, the

State had to also show that Mr. Wilson performed an “overt act” beyond mere

preparation that was “calculated to bring about” the planned crime. 

      The parties focus on Mr. Wilson’s specific intent to commit the underlying

felony. For as this Court has explained, the intent element is central to felony murder.

See State v. Jones, 

, 166–69 (2000). A defendant “must be purposely

resolved to commit” the predicate felony “to be held accountable for unlawful killings

that occur during the crime’s commission.” 

; see also 

 (“[T]he actual intent

to kill may be present or absent; however, the actual intent to commit the underlying

felony is required.”). Culpable negligence is not enough—the State must prove that

                                           -19-
                                   STATE V. WILSON

                                   Earls, J., dissenting



“the defendant actually intended to commit” the predicate felony. 

 at 167–68. And

so for Mr. Wilson, the State could not simply show that he acted recklessly or with

“heedless indifference to the safety and rights of others.” 

 at 165 (quoting State v.

Weston, 

 (1968)) (defining criminal negligence). To commit

attempted robbery, he had to be “purposely resolved” to taking Mr. Finch’s personal

property using a dangerous weapon. Id. at 167. And so if evidence cuts against Mr.

Wilson’s specific intent to commit armed robbery, it cuts against his guilt of the

predicate felony and—by extension—felony murder.

 II.   When must a court instruct the jury on a lesser-included offense?

       Time and again, this Court has recognized a defendant’s right “to have all

lesser degrees of offenses supported by the evidence submitted to the jury as possible

alternate verdicts.” Palmer, 293 N.C. at 643–44; State v. Thomas, 

(1989) (explaining that a lesser-included offense instruction is required if the

evidence “would permit a jury rationally to find defendant guilty of the lesser offense

and acquit him of the greater” (cleaned up)).

       That rule flows from constitutional guarantees of due process. A judge’s charge

to the jury, we have explained, is “one of the most critical parts of a criminal trial.”

State v. Walston, 

 (2014). It provides jurors with a menu of choices,

thus shaping whether, why, and for what they return a verdict. And so for “over a

century,” this Court has required judges to instruct the jury on “an included crime of

lesser degree than that charged” if “there is evidence tending to support” it. State v.


                                           -20-
                                   STATE V. WILSON

                                   Earls, J., dissenting



Brichikov, 

, 553 (2022) (quoting State v. Hicks, 

 (1954));

see also State v. Jones, 

 (1878) (“It was [defendant’s] privilege to have

the State’s evidence applied to any theory justified by it. . . . This right he demanded

in his prayer for instructions which ought to have been given.”).

      In practice, that safeguard “reduce[s] the risk of an unwarranted conviction.”

State v. Conaway, 

 (1995). And as the Supreme Court has explained,

that danger is greatest when “one of the elements of the offense charged remains in

doubt, but the defendant is plainly guilty of some offense.” Beck v. Alabama, 

 (1980) (quoting Keeble v. United States, 

, 212–13 (1973)). A jury

left with “only two options”—“convicting the defendant” or “acquitting him

outright”—is “likely to resolve its doubts” by convicting the defendant. 

 Instructing

jurors on a lesser-included offense provides a “third option.” 

 And by affording “the

jury a less drastic alternative than the choice between conviction of the offense

charged and acquittal,” id. at 633, the instruction thus “accord[s] the defendant the

full benefit of the reasonable-doubt standard,” id. at 634.

      In light of those due process concerns, our cases do not set a high bar for lesser-

included offense instructions. Before charging jurors, a trial court must ask whether

“the State’s evidence is positive as to each and every element of the crime charged.”

Thomas, 

 (cleaned up); accord State v. Locklear, 

(1992). A judge may decline to instruct the jury on a lesser crime only if “there is no

contradictory evidence relating to any element” of that offense. 

 (emphases added)


                                           -21-
                                   STATE V. WILSON

                                   Earls, J., dissenting



(citing State v. Peacock, 

 (1985)).

      But the calculus changes if “there is any evidence or if any inference can be

fairly deduced therefrom, tending to prove one of the lower grades of murder.” State

v. Spivey, 

 (1909); see also State v. Strickland, 

(1983), overruled in part on other grounds by State v. Johnson, 

, 203–04

(1986). If so, the evidence is “in conflict.” Gwynn, 

. And because that

conflict raises a “risk of an unwarranted conviction,” it requires a lesser-included

offense instruction. Conaway, 

; see also Beck, 447 U.S. at 634–36.

      This case focuses on when the evidence is “in conflict,” and how a defendant

may identify that factual discord. Analytically, that matters to Mr. Wilson. When the

State charges a defendant with felony murder and there is a “conflict in the evidence

regarding whether defendant committed the underlying felony,” then the court must

instruct jurors on “all lesser degrees of homicide charged in the indictment” and

“supported by the evidence.” State v. Camacho, 

 (1994).

      Despite the majority’s narrow formulation of a conflict, our precedent has

adopted a more generous approach. A conflict exists “if any other evidence tended to

negate” the elements of the charged crime “when viewed in the light most favorable

to defendant.” Brichikov, 383 N.C. at 554. So too is the evidence in conflict when it

“permits more than one inference” as to an essential element. State v. Leroux, 

, cert. denied, 

 (1990); see also State v. Perry, 

 (1936) (“Whenever there is any evidence or when any inference can be fairly


                                           -22-
                                     STATE V. WILSON

                                     Earls, J., dissenting



   deduced therefrom tending to show a lower grade of murder, it is the duty of the trial

   judge, under appropriate instructions, to submit that view to the jury.”); State v.

   Gause, 

 (1946) (requiring trial court to instruct on second-degree

   murder when “more than one inference may be drawn from the evidence in respect to

   lying in wait”).

          As detailed above, specific intent is an essential ingredient for first-degree

   murder. For felony murder, the State needed to prove that Mr. Wilson specifically

   intended—or “purposely resolved”—to commit the underlying felony. See Jones, 

. So a conflict exists—and a court must instruct on a lesser degree of

   homicide—if “any evidence” or “any inference. . . fairly deduced” from it cuts against

   Mr. Wilson’s specific intent to commit attempted robbery with a dangerous weapon.

   See Perry, 

.

III.   Was the evidence in conflict as to Mr. Wilson’s specific intent to commit
                               the underlying felony?

          According to the majority, Mr. Wilson cannot show a conflict because the State

   “presented positive evidence as to each element of attempted robbery with a

   dangerous weapon.” To support that claim, the majority surveys the State’s evidence.

          At trial, the majority recounts, prosecutors used Mr. Wilson’s statements as

   evidence that he and Tink “discussed the idea of robbing [Mr.] Finch before meeting

   him.” The State also showed that Mr. Wilson—wary about meeting with an unknown

   person—asked Tink to do the talking, promising him $60 from the sale. On the day

   of the meet-up, Mr. Wilson and Tink “went armed with firearms to meet Finch.” At

                                             -23-
                                   STATE V. WILSON

                                   Earls, J., dissenting



the meeting, Mr. Wilson’s statements suggested that Tink “pointed his gun” at Mr.

Finch “in order to rob him.” In the wake of the killing, the majority notes, Mr. Wilson’s

girlfriend testified that he admitted to “sho[oting] and robb[ing] somebody.” Mr.

Wilson’s comments to a friend suggested, too, that he “was personally involved in the

attempted robbery with a dangerous weapon.” So according to the majority, the State

“presented positive evidence” for each element of the underlying felony, including

specific intent.

       But that account omits key information. When officers interviewed him, Mr.

Wilson stated at least seven times that he intended to sell his phone to Mr. Finch, not

rob him. Though Tink floated the idea of a robbery, Mr. Wilson repeatedly shot it

down. Regardless of Tink’s half-baked designs, Mr. Wilson had no plan to rob Mr.

Finch or help Tink do so. From Mr. Wilson’s perspective, too, it was not unusual for

him or Tink to carry guns. His statement suggests that Tink was always armed but

seldom used his weapon. See State v. Wilson, 

, 443 (2022) (Stroud,

C.J., concurring in part and dissenting in part). At trial, a friend also testified that

Mr. Wilson told him that he planned to buy a phone on the LetGo app. And at the

crime scene itself, officers found the iPhone and loose cash near Mr. Finch’s body. In

his pockets, they discovered another $200.

       Viewed in the light most favorable to Mr. Wilson, that evidence tends to negate

Mr. Wilson’s specific intent. It shows that Tink—not Mr. Wilson—was the only person

who mentioned a robbery. It shows, too, that Mr. Wilson tried to dissuade Tink from


                                           -24-
                                    STATE V. WILSON

                                    Earls, J., dissenting



that course, insisting, “[Y]ou ain’t got to rob him just sell him the phone.” And it shows

that neither Mr. Wilson nor Tink took any money or property from Mr. Finch—the

alleged purpose of the meet-up—after the deal went south. Taken together, that

evidence undercuts Mr. Wilson’s specific intent to commit the underlying felony. Id.

at 167. At worst, Mr. Wilson knew that Tink was armed and had “talked about”

robbing Mr. Finch. But he “didn’t know for sure” if Tink would do so, and he had no

intent to assist Tink or commit the robbery himself. Culpable negligence is not

enough for felony murder. Id. Even if Mr. Wilson acted recklessly or with “heedless

indifference” to Mr. Finch’s safety, the evidence—viewed in his favor—does not show

that he “purposely resolved” to commit the underlying felony. See id. at 165, 167.

       IV.    What are the problems with the majority’s approach?

      The majority avoids the conflicting evidence by scrubbing it from

consideration. A defendant’s statements cannot themselves raise a conflict, the

majority holds. But that rule clashes with Supreme Court precedent. In Beck, like

this case, the defendant implicated himself in a robbery-turned-homicide. Beck, 

. But the defendant “consistently denied” that “he killed the man or that

he intended his death.” 

 As the defendant told it, “he and an accomplice entered

their victim’s home in the afternoon.” 

 at 629–30. And after the defendant “seized

the man intending to bind him with a rope, his accomplice unexpectedly struck and

killed him.” 

.

      The defendant’s testimony, according to the Court, was enough to require a


                                            -25-
                                      STATE V. WILSON

                                      Earls, J., dissenting



lesser-included offense instruction. See 

 at 635–38. When the evidence shows that

“the defendant is guilty of a serious, violent offense” but “leaves some doubt with

respect to an element that would justify conviction” of a more serious crime, the

failure “to give the jury the ‘third option’ of convicting on a lesser included offense

would seem inevitably to enhance the risk of an unwarranted conviction.” 

.

The Court reaffirmed the guiding principle of that due-process safeguard: A

“defendant is entitled to an instruction on a lesser included offense if the evidence

would permit a jury rationally to find him guilty of the lesser offense and acquit him

of the greater.” 

 at 635 (quoting Keeble, 

). So the lodestar is not the

precise source of the evidence but whether it raises a “doubt with respect to an

element that would justify conviction” of a less-serious crime. Id. at 637.1



       1 The majority downplays the dissonance of its position with Beck, claiming that that

decision did not declare “a universal rule applicable to all States,” but provided “simply a
summary of Alabama’s law and how it applied to the facts of that case.” In support of that
point, it notes Beck’s observation that “[A]bsent the statutory prohibition on such
instructions, this testimony would have entitled petitioner to a lesser included offense
instruction on felony murder as a matter of state law.” Beck, 

 (emphasis
added).
       The majority identifies the very same constitutional flaw with the challenged statute:
That it precluded a lesser-included offense instruction when the evidence would warrant one.
By doing so, the Court explained, the statute “interject[ed] irrelevant considerations into the
factfinding process, diverting the jury’s attention from the central issue of whether the State
has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of
a capital crime.” 

. More specifically, the “unavailability of the third option of
convicting on a lesser included offense may encourage the jury to convict for an impermissible
reason—its belief that the defendant is guilty of some serious crime and should be punished.”

       While states may define crimes and the lesser-included offenses that comprise them,
the due-process clause requires a lesser-included offense instruction when the evidence would
support one. See 

 at 635–37. Indeed, the Court underscored that point in the footnote the
majority only partly cites. Reproduced in full, the opinion says: “Although the States vary in

                                              -26-
                                      STATE V. WILSON

                                      Earls, J., dissenting



       This Court, too, has relied on a defendant’s statements to find a conflict in the

evidence. See Camacho, 337 N.C. at 232–33; see also Thomas, 

 (relying

on defendant’s statements to police officer as basis for finding a conflict in evidence

about whether “defendant shared a common purpose or plan” to commit the

underlying felony).2 In Camacho, for instance, we reversed a conviction because the

trial court refused to instruct jurors on second-degree murder. See Camacho, 337 N.C.

at 232–33. We first asked whether the evidence was in conflict for any element of the

first-degree murder charge. See 

 In that case, the State prosecuted the defendant

for homicide by lying in wait—a species of first-degree murder. Id. at 231. And at

trial, the State’s “evidence tend[ed] to show that the defendant hid in the victim’s

closet and waited for her to return to her room before jumping out of the closet and



their descriptions of the quantum of proof necessary to give rise to a right to a lesser included
offense instruction, they agree that it must be given when supported by the evidence.” Id. at
636 n.12 (emphasis added). In Mr. Wilson’s case, then, if evidence would support a second-
degree murder conviction, Beck requires one. And by artificially narrowing the relevant
evidence, the ruling here runs into the same constitutional problems that animated Beck:
When there is “some doubt with respect to an element that would justify conviction” of a
serious crime, denying jurors the “third option” impermissibly “enhance[s] the risk of an
unwarranted conviction.” Id. at 637.
        2 According to the majority, these cases were “abrogated” by our decisions in Millsaps

and Thomas. But neither of those later rulings purported to change or “abrogate” our
precedent. In fact, Millsaps repeatedly cited the very case that it (per the majority) did away
with. See Millsaps, 

 (citing State v. Thomas, 

 (1989), when
explaining “certain well-settled principles applicable to first-degree murder”); 

 at 561
(citing Thomas, 

); 

 at 561–62 (citing Thomas, 

); 

 at 565
(citing Thomas, 

); 

 at 569 (citing Thomas, 

). And at one point,
Millsaps excerpted full paragraphs from that earlier decision, relying on its formulation of
the rules governing lesser-included offense instructions. See 

 at 561–62. On top of that,
this Court’s 2016 opinion in Juarez cited the “abrogated” decisions as good law. See State v.
Juarez, 

, 355–56 (2016). And just last year, this Court quoted one “abrogated”
case with approval. See Brichikov, 383 N.C. at 557 (citing Thomas, 

).

                                              -27-
                                   STATE V. WILSON

                                   Earls, J., dissenting



assaulting her with a hammer, leading to her death.” Id. at 232.

      But the defendant’s testimony, on the other hand, “tend[ed] to show he did not

lie in wait for his victim.” Id. He told jurors that “he was in the victim’s room only to

retrieve some personal belongings when he was overcome with ‘head rushes’ resulting

from his excessive use of alcohol and cocaine.” Id. When he stooped “to pick up some

tools he had dropped,” the victim entered the room and attacked “him with a knife.”

Id. During their struggle, the defendant struck the fatal blow with a hammer. Id.

      Because the evidence pointed both ways, this Court concluded that it was “in

conflict as to whether the crime was committed by lying in wait.” Id. at 231. Although

the “State’s evidence tend[ed] to show that it was,” the “defendant’s evidence tend[ed]

to show that it was not.” Id. at 231. Because of that conflict, the “trial judge should

have given the jury an instruction based upon any version of the crime supported by

the evidence favorable to defendant.” Id. at 232. In other words, we required that

jurors have the option to consider and convict the defendant for “any version of the

crime which did not involve lying in wait, and which is supported by other evidence

and charged in the indictment.” Id. (cleaned up). And since the defendant’s

statements showed “that he did not intend to kill the victim” but “did intend to beat

the victim in the head with a hammer,” a second-degree murder instruction was

required. Id. at 232–33.

      The majority skips past that precedent, rooting its rule in a distinct species of

cases: Those in which a defendant—through statements or testimony—categorically


                                           -28-
                                  STATE V. WILSON

                                  Earls, J., dissenting



denies any role in the crime, without explanation. The majority, for instance, relies

on State v. Thomas, 

 (1999). In that case, the defendant requested a

second-degree murder instruction, arguing that the evidence was in conflict about his

premeditation. See 

. The only basis for that conflict: The defendant’s “own

testimony denying his involvement in the crime.” 

. We held that the

defendant’s wholesale disavowal of guilt did not, standing alone, “tend to negate

premeditation and deliberation.” 

 In Millsaps—also cited by the majority—we

declined to find a conflict based on nothing “other than defendant’s denial that he

committed the offense.” State v. Millsaps, 

 (2002) (cleaned up).

      But those cases differ critically from this one. When a defendant disclaims any

role in a crime, he disavows the conduct that makes up both the greater and lesser-

included offenses. The defendant, in effect, contends that he engaged in no crime at

all. And for that reason, his bare “denial that he committed the offense” does not

support a lesser-included offense instruction. See id.; see also Conaway, 

 (declining to require a second-degree murder instruction when defendant pointed

to no evidence negating premeditation and deliberation aside from his testimony

“that he did not commit the murders”).

      The analysis changes when a defendant’s statements do not categorically

disclaim criminal culpability but instead contradict a discrete element of the charged

crime—an element that separates a more serious offense from lesser-included ones.

That defendant—unlike those in the cases cited by the majority—does not entirely


                                          -29-
                                      STATE V. WILSON

                                      Earls, J., dissenting



disavow his role in the events that make up the greater and lesser-included offenses.

His words bear on which crime he committed, not on whether he committed a crime

at all. When offered for that distinct purpose, a defendant’s statements are not a

naked “denial that he committed the offense.” Cf. Millsaps, 

.3

       That logic applies to Mr. Wilson’s case. Unlike the defendants in the majority’s

cases, Mr. Wilson does not “deny[ ] his involvement in the crime” or disclaim any role

in any offense. Cf. Thomas, 

. Just the opposite. His own words link

him to Mr. Finch, the crime scene, and the crime. Mr. Wilson instead offers his

statements to show a conflict in the evidence on a discrete point: His specific intent

to commit an attempted armed robbery with a dangerous weapon. Put differently,

Mr. Wilson’s words call into question whether his intent matched the elements of

second- versus first-degree felony murder.

       In my view, Mr. Wilson’s statements are key data points. The State admitted


       3 Per the majority, State v. Thomas, 

 (1999), forecloses this argument

because the defendant’s statements in that case “were far more than ‘blanket denials of
guilt.’” But that conclusion does not follow from the majority’s premises. In Thomas, the
defendant admitted his presence at the victim’s home on the night of the murder. See 

. But according to the defendant, he left to go “settle a drug debt.” 

 When he drove away
from the house, he testified that the victim “was still alive.” 

         In other words, the defendant flatly denied his participation in the events comprising
the murder charge. Though he conceded that he was at the victim’s house that night, he
insisted that he left before anything happened. See 

 And because the defendant
categorically disavowed his role in and proximity to the murder, his statements did not
negate a discrete element of first-degree murder. While the majority flattens Thomas into a
categorical rule, its own summary of that case distinguishes it from Mr. Wilson’s. Unlike the
defendant in Thomas, Mr. Wilson does not entirely remove himself from the events
underlying the murder charge—he instead disputes whether he had the intent needed for
first- versus second-degree murder. Thus, unlike the defendant in Thomas, Mr. Wilson’s
words bear on his degree of culpability rather than disclaiming any culpability at all.

                                              -30-
                                   STATE V. WILSON

                                   Earls, J., dissenting



them into evidence, read them to the jury, leaned on them to make its case, and

addressed them during closing arguments. And since Mr. Wilson does not

categorically disclaim any involvement in the crime but instead disputes his specific

intent to commit first-degree felony murder, our precedent does not demand the rule

the majority extracts from it.

      On a practical level, the majority’s approach also overlooks the nature of

inchoate crimes. To commit an attempted robbery, Mr. Wilson did not need to go

through with it. The crime was complete when the participants “purposely resolved”

to rob Mr. Finch using a dangerous weapon, and overtly acted to that end. Specific

intent is key. But specific intent is also notoriously difficult to ferret out. For many

inchoate crimes, the participants themselves are the only ones with insight into

whether, how, and why they pursued a course of conduct. And so the participants’

statements and testimony will be the primary—often the only—evidence for and

against their guilt.

      Just look at the State’s evidence here. To convict Mr. Wilson of attempted

robbery, prosecutors admitted into evidence his statements to police and leaned on

them to meet their burden. Wilson, 283 N.C. App. at 442 (Stroud, C.J., concurring in

part and dissenting in part). They played his words to the jury, and even referenced

them during closing arguments. Id. But though the State used Mr. Wilson’s

statements as evidence of his intent, the majority now bars Mr. Wilson from using

those same statements to show a conflict on the same point.


                                           -31-
                                       STATE V. WILSON

                                       Earls, J., dissenting



       In fact, the majority itself deploys that one-way ratchet. In finding no conflict

in the evidence, the majority points to Mr. Wilson’s comments. It notes that, as Mr.

Wilson told officers, he and Tink “discussed the idea of robbing Finch before meeting

him.” It observes too that Mr. Wilson and Tink agreed to split the proceeds of the sale.

And it cites Mr. Wilson’s “statements” as evidence that “Tink pointed his gun at [Mr.]

Finch at the meeting in order to rob him.” So for the majority, Mr. Wilson’s words

work one way only—though the majority may use them as evidence of his guilt, Mr.

Wilson cannot use them to question it. That “heads-I-win, tails-you-lose” approach

flouts basic principles of fairness.

       Finally, the majority ignores how Mr. Wilson’s youth bears on his intent. At

the time of the crime, Mr. Wilson was just fifteen years old. And as the Supreme

Court has recognized, intent and age are closely intertwined. See Miller v. Alabama,

, 471–72 (2012). A child’s criminal culpability is tempered by the

“distinctive attributes of youth”—their “transient rashness, proclivity for risk, and

inability to assess consequences.” 

 (cleaned up). Chief Judge Stroud made a

similar point below. Although a “reasonable adult considering the situation would

likely know something more was going to occur than just selling the phone,” Mr.

Wilson “was not a reasonable adult.” Wilson, 283 N.C. App. at 443 (Stroud, C.J.,

concurring and dissenting). He was an impulsive teenager “who plainly, throughout

his statement, seemed to believe Tink could talk a big game, but he would not actually

shoot anyone, even though he was armed.” Id.


                                               -32-
                                  STATE V. WILSON

                                  Earls, J., dissenting



      The jury was the proper body to weigh the conflicting evidence and assess

whether and how Mr. Wilson’s age mattered. And if instructed on second-degree

murder, it may well have found that offense a closer fit to the facts. Indeed, we know

that jurors did not fully swallow the State’s version of events. In acquitting Mr.

Wilson of conspiracy to commit robbery with a firearm, the jury signaled that it

“believed at least some of defendant’s account of events or was not fully convinced by

the State’s evidence regarding a plan to commit robbery.” Id. at 443–44.

      Though it minimizes the jury’s acquittal, the majority proves the very point it

purports to rebut. Relying on Mr. Wilson’s admissions to officers, the majority

concludes that Monte did “not appear to have been a part of the arrangements

between defendant and Tink.” Because the “conspiracy charge alleged a conspiracy

between defendant and Monte,” the majority continues, the jury’s acquittal for that

crime “does not inform whether defendant and Tink planned to rob Finch.”

      But for that logic to hold true, the jury must have believed at least some of Mr.

Wilson’s words. Indeed, the majority cites Mr. Wilson’s statements as the sole

evidence “tend[ing] to show that Monte was not part of any arrangement with

defendant and/or Tink.” If jurors believed Mr. Wilson when he disclaimed a

conspiracy, then it is more likely that they believed him when he disputed his specific

intent to commit an attempted armed robbery. Given jurors’ skepticism on the

conspiracy count, they may well have reached a different verdict on the murder




                                          -33-
                                      STATE V. WILSON

                                      Earls, J., dissenting



charge had they received different instructions.4

       For that reason, this case raises the due process concerns that have long

animated our precedent. Beyond question, the evidence “points to some criminal

culpability” on Mr. Wilson’s part. Thomas, 

. Even so, his specific

intent—the key element of the predicate felony—“remains in doubt.” Beck, 

. And viewed in Mr. Wilson’s favor, the evidence is “in conflict” on whether he

“purposely resolve[d]” or “actually intend[ed]” to rob Mr. Finch or help Tink do so. See

Jones, 353 N.C. at 167–68.

       But despite that conflict, the trial court declined to instruct jurors on second-

degree murder, leaving them with just two options—to convict Mr. Wilson or acquit

him entirely. See Beck, 

. That binary, we have explained, creates an

impermissible “risk of an unwarranted conviction.” Conaway, 

. Left

with no other choices, jurors may have felt “compelled to convict” for “some offense in

light of the gravity of the accused’s admitted transgressions.” Brichikov, 383 N.C. at


       4  In brushing aside the conspiracy acquittal, the majority also underscores the
unfairness of a rule that bars defendants from offering their words to show a conflict in the
evidence. According to the majority, the “evidence tended to show that Monte was not part of
any arrangement with defendant and/or Tink.” That “evidence”: Mr. Wilson’s statements to
officers that Monte—his alleged co-conspirator—was “never part of the arrangement” and
“coincidentally was in the area [of the crime] at this time.” In other words, the majority offers
Mr. Wilson’s words as evidence that “tended to show” the lack of a conspiracy. Likewise, the
majority points to Mr. Wilson’s statements as evidence that he committed first-degree felony
murder.
        But when Mr. Wilson offers those same statements to question his intent, the
majority’s rule would have us close our eyes and cover our ears. In my view, if Mr. Wilson’s
words are competent evidence to support the State’s case and exculpate Monte from a
conspiracy, then they are competent evidence to dispute Mr. Wilson’s specific intent to
commit first-degree murder.

                                              -34-
                                   STATE V. WILSON

                                   Earls, J., dissenting



557. In this case, a second-degree murder instruction would have offered “a less

drastic alternative,” affording Mr. Wilson “the full benefit of the reasonable-doubt

standard” and allowing jurors to select a verdict from the full menu of criminal

offenses. See Beck, 447 U.S. at 633–34. By denying Mr. Wilson that instruction, the

trial court below—and the majority today—withholds a key “procedural safeguard”

and blesses a dangerously unreliable verdict. See id. at 637.

      Because I would vacate Mr. Wilson’s conviction and remand his case for full

and fair proceedings, I respectfully dissent.

      Justice RIGGS joins in this dissenting opinion.




                                           -35-