One of its employees testified at trial that a man wearing a nylon stocking over his face robbed the station at knifepoint. The employee, together with one of the people with whom she worked, identified defendant as the robber. The gas station manager, in reviewing a video surveillance tape for the jury, pointed out a stick-like object in the robber's hand. An additional witness testified that he found a knife in an area outside the gas station where the robber had dropped some money. During closing arguments, defense counsel did not argue that the witnesses erred in testifying that the perpetrator possessed a knife or at least a knife-like object during the incident.
Defendant contends that the trial court erred in refusing to give the requested instruction.
A trial court must instruct the jury on necessarily lesser included offenses upon a request for such instructions. Unarmed robbery is a necessarily lesser included offense of armed robbery, with the distinguishing element being the use of a weapon or an article used as a weapon. Applying these precedents here, we conclude that the trial court erred in this case by failing to instruct the jury on the necessarily lesser-included offense of unarmed robbery. Although our current case law compels the conclusion that the trial court erred, we note that other jurisdictions have different rules regarding when the duty to instruct on lesser included offenses arises. In the federal courts, for example, an instruction on a lesser included offense need only be given if it is rationally supported by the evidence.