#### STATE OF NORTH CAROLINA v. DULAINE LOTHARP

No. 106A02

(Filed 22 November 2002)

Assault— deadly weapon — disjunctive instruction

The Court of Appeals decision granting defendant a new trial on a charge of assault with a deadly weapon inflicting serious injury is reversed for the reason stated in the dissenting opinion that defendant was not denied a unanimous verdict by the trial court’s instruction permitting the jury to return a guilty verdict if it found beyond a reasonable doubt that defendant intentionally beat the victim with his hands and feet and/or with a chain and that defendant’s hands and feet and/or the chain were deadly weapons that inflicted serious injury.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 148 N.C. App. 435, 559 S.E.2d 807 (2002), ordering a new trial after appeal from judgments entered 26 May 2000 by Beale, J., in Superior Court, Union County. Heard in the Supreme Court 14 October 2002.

Roy Cooper, Attorney General, by Robert M. Curran, Assistant Attorney General, for the State-appellant.

Marjorie S. Canaday for defendant-appellee.

Smith Moore LLP, by Julia F. Youngman, on behalf of the American Civil Liberties Union of North Carolina Legal Foundation, amicus curiae.

PER CURIAM.

The decision of the Court of Appeals is reversed for the reasons stated in the dissenting opinion.

REVERSED.