#### STATE OF NORTH CAROLINA v. KENNETH RAY BLUE

No. 292PA00

(Filed 6 April 2001)

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 138 N.C. App. 404, 531 S.E.2d 267 (2000), finding error in the trial and subsequent judgment of second-degree murder entered 16 December 1998 by Johnston, J., in Superior Court, Gaston County, and ordering a new trial. Heard in the Supreme Court 13 February 2001.

Roy A. Cooper, Attorney General, by Amy C. Kunstling, Assistant Attorney General, for the State-appellant.

Staples Hughes, Appellate Defender, by Beth S. Posner and Daniel R. Pollitt, Assistant Appellate Defenders, for defendantappellee.

PER CURIAM.

The decision of the Court of Appeals is affirmed except that portion awarding a new trial, and the case is remanded to that court for further remand to the Superior Court, Gaston County, for entry of judgment for involuntary manslaughter.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.