#### STATE OF NORTH CAROLINA v. JAMES WAYNE SMITH

No. 213A93

(Filed 5 November 1993)

Appeal by the State pursuant to N.C.G.S. § 7A-30Í2) from the decision of a divided panel of the Court of Appeals, 110 N.C. App. 119, 429 S.E.2d 425 (1993), finding error in defendant’s conviction for robbery with a firearm at the 27 August 1991 Criminal Session, Superior Court, Brunswick County, Ellis, J., presiding, and remanding this charge for a new trial. Heard in the Supreme Court 13 October 1993.

Michael F. Easley, Attorney General, by Daniel C. Oakley, Special Deputy Attorney General, for the State-appellant.

Michael Ramos for defendant-appellee.

PER CURIAM.

At trial defendant was convicted of first-degree kidnapping (91 CRS 2720), larceny of a firearm (91 CRS 2722), first-degree sex offense (91 CRS 3100) and robbery with a firearm (91 CRS 3332). A majority of the Court of Appeals, Judge Cozort dissenting, found error in the trial court’s failure to instruct on the lesser included offense of assault with a deadly weapon in the robbery case and remanded this case for a new trial. The Court of Appeals unanimously found no error in the other convictions.

The State appeals to us on the basis of Judge Cozort’s dissent, contending that the Court of Appeals’ decision in the robbery case was erroneous. We conclude the decision should be affirmed.

AFFIRMED.