dissenting.
I dissent from the majority opinion because I do not agree that the trial court’s instructions on the charge of malicious assault in a secret manner with a deadly weapon (“secret assault”) rendered the jury’s verdict fatally ambiguous. The majority seems to lose sight of the fact that there was no question whatsoever of the *310identity of the two victims and that both were wounded. The mere possibility that some jurors may have found defendant guilty based on a belief that one of the victims was shot and other jurors may have found him guilty based on a belief that the other victim was shot does not affect the unanimity of the jury’s decision that defendant committed a secret assault. Moreover, the evidence presented at defendant’s trial clearly rebuts the possibility that the trial court’s instructions, even if error, may have resulted in a nonunanimous verdict. Because the jury unanimously found defendant guilty of secret assault, the majority errs in concluding that defendant is entitled to a new trial.
I.
In our recent opinion in State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990), this Court held that it was not error to instruct the jury disjunctively as to various alternative acts, either of which would establish an element of the offense charged. Although some of the jurors may find the defendant guilty based on their belief that the defendant committed act A and some may base their vote of guilty on the defendant’s participation in act B, such alternative findings do not render the jury’s verdict nonunanimous as long as the alternative acts found establish an element of the offense and do not, in and of themselves, constitute a separate offense.
As the majority opinion illustrates, it is often a difficult task to determine when alternative acts constitute separate offenses, rendering a guilty verdict fatally ambiguous, or merely establish an element of the offense charged. In order to make such a determination, the Court must examine the statute proscribing the alleged conduct and the legislature’s intent in proscribing the conduct. Where, as in State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986), the statute enumerates several proscribed activities as discrete criminal offenses, a jury verdict based on the different activities does not meet the requirement that a conviction be based on a unanimous jury verdict. Hartness, 326 N.C. at 564, 391 S.E.2d at 179; see Diaz, 317 N.C. 545, 346 S.E.2d 488. Where, however, a defendant is convicted of one offense based on a statute that proscribes a single wrong that may be proved by evidence of the commission of any one of a number of acts, the unanimity requirement is met as long as each of the jurors concludes that the defendant committed one or more acts satisfying the elements of the *311single proscribed offense. Hartness, 326 N.C. at 566-67, 391 S.E.2d at 180.
As in Hartness, the defendant in this case was convicted under a statute proscribing a single offense that may be established by a finding of any one of several alternative acts. Defendant was indicted, tried, and convicted for violating N.C.G.S. § 14-31. This statute provides that a person is guilty of a Class F felony if he “in a secret manner maliciously commit[s] an assault and battery with any deadly weapon upon another by waylaying or otherwise, with intent to kill such other person.” N.C.G.S. § 14-31 (1986). In State v. Hill, 287 N.C. 207, 214 S.E.2d 67 (1975), we set forth the following five elements, the proof of which is required to support a conviction for secret assault as proscribed by N.C.G.S. § 14-31: “(1) secret manner; (2) malice; (3) assault and battery; (4) deadly weapon; and (5) intent to kill.” Id. at 216-17, 214 S.E.2d at 74.
Just as in Hartness, wherein we concluded that the offense of indecent liberties may be proved by several different acts, a violation of N.C.G.S. § 14-31 may be proved by showing an assault and battery upon one or more victims. In Hartness, we concluded that it was immaterial that the jurors may have differed as to which specific sexual act they believed the defendant to have committed as long as all of the jurors found that the defendant had committed a sexual act. We stated:
The risk of a nonunanimous verdict does not arise in cases such as the one at bar because the statute proscribing indecent liberties does not list, as elements of the offense, discrete criminal activities in the disjunctive.....
. . . Defendant’s purpose for committing such act is the gravamen of this offense; the particular act performed is immaterial.
Hartness, 326 N.C. at 564, 567, 391 S.E.2d at 179, 180.
The Hartness reasoning applies equally well here. The gravamen of the offense of secret assault is that an assault is committed in a secret manner and with intent to kill another person. See N.C.G.S. § 14-31 (1986). The identity of the victim of a secret assault is immaterial. That jurors may disagree upon the victim’s identity *312would not affect the unanimity of the jury’s decision that defendant committed the assault for which he was tried and convicted.
The majority errs in concluding that “the Diaz rather than the Hartness analysis applies” to this case. Diaz involved a drug trafficking statute that proscribed the sale, manufacture, delivery, transportation, and possession of marijuana. The trial court instructed the jury that it could find defendant guilty of trafficking in marijuana if it found that defendant had either “knowingly possessed or knowingly transported marijuana.” Diaz, 317 N.C. at 553, 346 S.E.2d at 493-94. After noting that the statute expressly provided that the alternative acts of selling, manufacturing, delivering, transporting, and possessing marijuana each constituted separate trafficking offenses, we held that the specified acts could not be submitted as alternative acts to prove a charge of trafficking in marijuana. Id. at 554, 346 S.E.2d at 494. In Hartness, decided four years after Diaz, we revived a line of cases overruled by Diaz, thereby limiting the Diaz holding to those cases involving statutes proscribing several enumerated acts as separate offenses.
To apply Diaz to the case at bar ignores the very intent and purpose of N.C.G.S. § 14-31. Unlike the trafficking statute at issue in Diaz, N.C.G.S. § 14-31 does not proscribe numerous activities, each of which constitutes a separate offense. As noted earlier, the gravamen of the offense of secret assault is that an assault is committed in a secret manner and with intent to kill another person. The mere fact that the jurors in this case may have disagreed as to the identity of the victim of defendant’s assault is immaterial because each juror found that defendant had committed a secret assault upon another person.
II.
Furthermore, even if I agreed with the majority that the assault upon the two victims in this case constituted separate offenses that could not be submitted as alternative bases to support a conviction of secret assault, I could not agree with the majority’s conclusion that a nonunanimous verdict may have resulted in this case. Any error in the trial court’s instructions must be considered harmless when viewed in light of the evidence presented at defendant’s trial. See State v. Diaz, 317 N.C. at 554, 346 S.E.2d at 494 (recognizing that the evidence in a particular case may remove any ambiguity created by an instruction charging crimes in the disjunctive).
*313It is important to note that in this case the evidence of record reveals that there was no question concerning the identity of the victims or that each was shot as a result of a secret assault. Evidence presented by the State showed that the two victims were walking with approximately nine other people when they were shot without warning. Several witnesses, including several friends of defendant’s, also testified that they saw the shooting spree during which the victims were injured.
None of the evidence presented by defendant would have supported a finding that defendant assaulted only one of the two victims. Defendant did not deny his involvement in the events leading up to the shooting. In fact, defendant testified that he had been involved in a fight with Danny McKay, a fraternity brother of the victims, earlier in the evening on which the victims were shot and that he had pulled a gun on McKay and slapped him. Defendant further admitted that he was present at the time of the shooting. Defendant did not deny assaulting one victim while admitting participation in the assault of the other. Rather, defendant’s defense theory rested solely on testimony that he and his friends provided. Based on this testimony, defendant claimed that he did not participate in the actual shooting that injured the victims. It is evident that the jury disbelieved defendant’s evidence because it unanimously rejected the evidence by its verdict finding defendant “Guilty of Maliciously Assaulting in a Secret Manner.”
Had the trial court instructed the jury that a verdict of guilty must be supported by a finding that defendant committed a secret assault upon both Douglas Jones and Preston Jones, the outcome of this case would have been the same. The uncontradicted and manifestly credible evidence showed that both Douglas Jones and Preston Jones were victims of an assault and battery committed in a secret manner. Having concluded that defendant participated in the shooting spree that resulted in the injuries suffered by both victims, the jury could only have reasonably concluded that defendant was guilty of a secret assault upon both of the victims.
Ample evidence was presented at defendant’s trial to support a jury finding as to each of the elements of the crime of secret assault. Based upon this evidence, the jury returned a verdict finding defendant guilty of secret assault. I find it beyond all reason and logic to conclude, as does the majority, that the mere fact that two persons were victimized by defendant’s assault requires *314reversal of defendant’s conviction. For these reasons, I dissent from the majority opinion and vote to reverse the decision of the Court of Appeals and remand this case for reinstatement of the judgment of the trial court.
Justices MITCHELL and Webb join in this dissenting opinion.