#### STATE OF NORTH CAROLINA v. CHARLES CARLO CINTRON

No. 190A99

(Filed 8 October 1999)

Homicide— first-degree murder — second-degree instruction not required

A Court of Appeals decision that the trial court erred in a first-degree murder prosecution by failing to instruct the jury on the lesser-included offense of second-degree murder is reversed for the reason stated in the dissenting opinion in the Court of Appeals that there was no evidence to support a finding by the jury that the murder was not premeditated and deliberate.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 132 N.C. App. 605, 513 S.E.2d 794 (1999), holding that the trial court erred by not instructing on the lesser-included offense of second-degree murder, thus vacating the judgment entered 7 October 1997 by Martin (Jerry Cash), J., in Superior Court, Guilford County, and ordering a new trial. Heard in the Supreme Court 20 September 1999.

Michael F. Easley, Attorney General, by Robert C. Montgomery, Assistant Attorney General, for the State-appellant.

Malcolm Ray Hunter, Jr., Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendantappellee.

PER CURIAM.

For the reasons stated in the dissenting opinion by Judge Lewis, the decision of the Court of Appeals is reversed.

REVERSED.