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

No. 521A01

(Filed 7 March 2002)

Homicide— second-degree murder — death of child — shaking and blunt force injuries — malice

A decision of the Court of Appeals holding that evidence on the issue of malice was not substantial enough to withstand defendant’s motion to dismiss a charge of second-degree murder of his two-year old stepdaughter was reversed for the reasons stated in the dissenting opinion in the Court of Appeals that evidence that injuries to the child’s head and brain were caused by violent shaking and a blunt force injury to the head was sufficient to support the jury’s conclusion that defendant acted with malice and to sustain defendant’s conviction of second-degree murder.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 146 N.C. App. 1, 551 S.E.2d 889 (2001), reversing and remanding a judgment entered 15 December 1999 by Allen (J.B., Jr.), J. in Superior Court, Orange County. Heard in the Supreme Court 12 February 2002.

Roy Cooper, Attorney General, by Steven M. Arbogast, Special Deputy Attorney General, for the State-appellant.

Miles & Montgomery, by Mark Montgomery, for defendantappellee.

PER CURIAM.

For the reasons stated in the dissenting opinion, the decision of the Court of Appeals is reversed and this case is remanded to that court to address the remaining assignments of error.

REVERSED AND REMANDED.