Kevin P. Bradley, Durham, for Smith.

*38 Amy C. Kunstling, for State of NC.

Prior report: ___ N.C.App. ___, 668 S.E.2d 612.

ORDER

Upon consideration of the petition filed by State of NC on the 5th of December 2008 for Writ of Supersedeas of the judgment of the Court of Appeals, the following order was entered and is hereby certified to the North Carolina Court of Appeals:

"Denied by order of the Court in conference, this the 27th of August 2009."

Upon consideration of the petition filed on the 5th of December 2008 by State of NC in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals:

"Denied by order of the Court in conference, this the 27th of August 2009."