The opinion
*150 GREENE, Judge,
concurring in part and dissenting in part.
As I believe the trial court erred in denying defendant’s motion to instruct the jury on the lesser-included offenses of first-degree murder, I dissent. I fully concur in all other aspects of the majority opinion.
In respect to defendant’s request for jury instructions on the lesser-included offenses of first-degree murder, the majority holds that the evidence was sufficient to conclude (1) the robbery with a dangerous weapon occurred and (2) it was part of the same continuous transaction which led to the homicide of Kyle Harrington (Harrington). I disagree.
“A trial court must give instructions on all lesser-included offenses that are supported by the evidence.” State v. Lawrence, 352 N.C. 1, 19 , 530 S.E.2d 807, 819 (2000). Failure to do so amounts to “reversible error that cannot be cured by a verdict finding the defendant guilty of the greater offense.” Id. The trial court may decline to submit the lesser offense to the jury if “the State’s evidence is positive as to each element of the crime charged” and there is no “conflicting evidence relating to any of these elements.” State v. Leroux, 326 N.C. 368, 378 , 390 S.E.2d 314, 322 , cert. denied, 498 U.S. 871 , 112 L. Ed. 2d 155 (1990).
In this case, the jury returned a guilty verdict for first-degree murder after receiving instructions that it could so find if defendant killed Harrington in the perpetration of robbery with a dangerous weapon. 4 “Any person . . . who, having in possession or with the use or threatened use of any... dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another” is guilty of robbery with a dangerous weapon. N.C.G.S. § 14-87(a) (1999). “A killing is committed in the perpetration or attempted perpetration of another felony when there is no break in the chain of events between the felony and the act causing death, so that the felony and homicide are part of the same series of events, forming one *151 continuous transaction.” State v. Wooten, 295 N.C. 378, 385-86 , 245 S.E.2d 699, 704 (1978).
1
Robbery with a dangerous weapon
In this case, there is no positive evidence of robbery with a dangerous weapon. The evidence only establishes that defendant attacked Harrington with a utility knife sometime during the truck ride and the money Harrington was believed to have been carrying in his wallet was later found on defendant. While this evidence permits a reasonable inference defendant attacked Harrington in the truck with a utility knife in an attempt to take Harrington’s money and as a consequence of this attack, the truck wrecked causing Harrington’s death, 5 the evidence leaves room for another, equally reasonable inference. Harrington’s truck could have wrecked as the result of a struggle over control of the truck when defendant attempted to restrain Harrington by use of the utility knife for the purpose of “facilitating the commission” of the robbery, and defendant robbed Harrington after the wreck had killed Harrington. 6 N.C.G.S. § 14-39(a)(2) (1999) (one of the enumerated purposes for kidnapping). Because the evidence is not positive as to the element of robbery with a dangerous weapon, the trial court should have submitted instructions on the lesser-included offenses of first-degree murder. See Leroux, 326 N.C. at 378 , 390 S.E.2d at 322 .
2
Continuous transaction
Even assuming positive evidence of robbery with a dangerous weapon exists, there is no positive evidence based on the record that defendant killed Harrington in the perpetration or attempted perpetration of the robbery. I agree with the majority that the evidence permits a reasonable inference that defendant attacked Harrington in the truck for the sole purpose of robbing him and that the struggle, which led to the wreck causing Harrington’s death, was part of one continu *152 ous transaction. Another reasonable inference, however, is that the robbery was completed sometime before the wreck occurred; after the robbery, but still prior to the wreck and Harrington’s death, Harrington was restrained by defendant for the purpose of “facilitating [defendant’s] flight.” N.C.G.S. § 14-39(a)(2) (another enumerated purpose of kidnapping). As the eyewitness accounts cannot resolve this ambiguity, the evidence in this case is not positive to establish that there was “no break in the chain of events between the felony” of robbery with a dangerous weapon “and the act causing [Harrington’s] death,” making the felony and homicide “part of the same series of events, forming one continuous transaction.” Wooten, 295 N.C. at 385-86 , 245 S.E.2d at 704 . Consequently, I believe defendant was entitled to have the jury instructed on the lesser-included offenses of first-degree murder and the trial court erred in not doing so. I would therefore reverse the first-degree murder conviction and remand this case for a new trial.
. Although the State’s use of the short-form murder indictment was sufficient to charge defendant with felony murder on the basis of either kidnapping or robbery with a dangerous weapon, see State v. Wilson, 253 N.C. 86, 99 , 116 S.E.2d 365, 373 (1960), cert. denied, 365 U.S. 855 , 5 L. Ed. 2d 819 (1961), the State chose to submit the issue of felony murder to the jury based solely on robbery with a dangerous weapon. As such, the jury was restricted to assessing the first-degree murder charge based on the commission of a robbery with a dangerous weapon.
. Under this theory, it is immaterial whether Harrington’s money and personal papers were taken from him by defendant before or after Harrington’s death.
. If defendant did in fact rob Harrington after Harrington had been thrown from the truck, there would be no basis for robbery with a dangerous weapon as the evidence establishes the utility knife was used at a time Harrington was still able to defend himself. To cover this instance, the State should have also proceeded with felony murder based on kidnapping. See N.C.G.S. § 14-39(a)(2) (1999).