IN THE SUPREME COURT OF NORTH CAROLINA
No. 252PA14-2
Filed 9 June 2017
STATE OF NORTH CAROLINA
v.
THOMAS CRAIG CAMPBELL
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 777 S.E.2d 525 (2015), finding no error in
part, but vacating in part and remanding a judgment entered on 12 June 2013 by
Judge Linwood O. Foust in Superior Court, Cleveland County, after the Supreme
Court of North Carolina reversed and remanded the Court of Appeals’ prior decision
in this case, State v. Campbell, 234 N.C. App. 551, 759 S.E.2d 380 (2014). Heard in
the Supreme Court on 20 March 2017.
Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney
General, for the State-appellant.
Glenn Gerding, Appellate Defender, by Hannah Hall Love, Assistant Appellate
Defender, for defendant-appellee.
MORGAN, Justice.
This is the second time that this case has made its way to this Court, and yet
our resolution of the present appeal does not represent a final ruling on the merits.
Instead, for the reasons discussed herein, we reverse and remand this case to the
Court of Appeals for an independent assessment of whether that court need and
STATE V. CAMPBELL
Opinion of the Court
should invoke its discretion under Rule 2 of the North Carolina Rules of Appellate
Procedure in order to reach the merits of one of defendant’s substantive issues on
appeal.
In light of the several previous opinions from this Court and the Court of
Appeals in this matter, we will not recount the factual background of this case in
detail. The evidence at trial tended to show the following: Overnight on 15 August
2012, certain sound equipment disappeared from Manna Baptist Church in Shelby,
North Carolina, and defendant’s wallet was found in the area of the church near
where some of the missing equipment was kept. Defendant testified that, in the
throes of a personal crisis, he entered the unlocked church seeking comfort and
sanctuary, spent the night there praying and sleeping, and left the following morning
without taking anything except some water. After defendant left the church, he
experienced symptoms that led him to believe he was having a heart attack, so he
called for emergency services. The emergency medical technician (EMT) who
responded to defendant’s call for help testified that defendant did not have any sound
equipment with him when the EMT arrived. Nonetheless, defendant was
subsequently indicted for (1) breaking or entering a place of religious worship with
intent to commit a larceny therein and (2) larceny after breaking or entering.
The procedural history of this case warrants lengthier review. The matter
came on for trial at the 10 June 2013 session of Superior Court, Cleveland County,
the Honorable Linwood O. Foust, Judge presiding. Defendant moved to dismiss the
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Opinion of the Court
charges against him at the close of the State’s evidence and again at the close of all
the evidence. The trial court denied each motion, and the jury returned guilty
verdicts on both charges. Defendant appealed, making six arguments of error. The
Court of Appeals addressed only two of defendant’s contentions, but vacated his
larceny conviction and reversed his conviction for breaking or entering. See State v.
Campbell, 234 N.C. App. 551, 759 S.E.2d 380 (2014), rev’d and remanded, 368 N.C.
83, 772 S.E.2d 440 (2015). The bases for the Court of Appeals’ holdings were its
determinations that: (1) when a larceny “indictment alleges multiple owners, one of
whom is not a natural person, failure to allege that such an owner has the ability to
own property is fatal to the indictment,” such that the larceny indictment was “fatally
flawed” for failing to “allege that Manna Baptist Church is a legal entity capable of
owning property;” and (2) the State presented insufficient evidence of an essential
element of felony breaking or entering a place of worship, to wit: intent to commit
larceny. Id. at 555-56, 759 S.E.2d at 384. This Court allowed the State’s first petition
for discretionary review. See State v. Campbell, 367 N.C. 792, 766 S.E.2d 635 (2014).
In that initial appeal, this Court held
that the larceny indictment alleging ownership of stolen
property of Manna Baptist Church sufficiently alleged
ownership in a legal entity capable of owning property[,]
. . . . that the State presented sufficient evidence of
defendant’s criminal intent to sustain a conviction for
felony breaking or entering a place of religious worship,
and [thus] the trial court properly denied defendant’s
motions to dismiss.
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Opinion of the Court
State v. Campbell, 368 N.C. 83, 88, 772 S.E.2d 440, 444-45 (2015). Accordingly, we
reversed the decision below and remanded the case to the Court of Appeals for
consideration of defendant’s four remaining issues on appeal. Id. at 88, 772 S.E.2d
at 445.
Defendant’s remaining issues were that
he was deprived of effective assistance of counsel, because
his counsel failed to object to the admission of evidence that
defendant had committed a separate breaking or entering
offense; [that] the trial court erred in failing to dismiss the
larceny charge due to a fatal variance as to the ownership
of the property; [that] insufficient evidence supports his
larceny conviction; and [that] the trial court violated his
constitutional right to a unanimous jury verdict with
respect to the larceny charge.
See State v. Campbell, ___ N.C. App. ___, 777 S.E.2d 525, 528 (2015) (Campbell II).
The court found “that the trial court committed no error in convicting defendant of
breaking or entering a place of religious worship with intent to commit a larceny
therein[,]” id. at ___, 777 S.E.2d at 534. After rejecting defendant’s ineffective
assistance of counsel claim, the court turned to defendant’s contention that a fatal
variance existed between the allegations in the indictment and the evidence at trial
regarding who owned the sound equipment that was stolen.1
The Court of Appeals first observed that, because his trial counsel had failed
1 As has already been discussed, defendant previously raised, and this Court rejected,
a different challenge to the larceny indictment, to wit: whether that indictment sufficiently
alleged ownership in a legal entity capable of owning property. For clarity, we refer to the
current challenge to the larceny indictment as the “fatal variance” issue or argument.
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Opinion of the Court
to raise the fatal variance issue in the trial court, defendant sought review under
North Carolina Rule of Appellate Procedure 2. Id. at ___, 777 S.E.2d at 530.
Ordinarily, “to preserve an issue for appellate review, a party must have presented
to the trial court a timely request, objection or motion, stating the specific grounds
for the ruling the party desired the court to make if the specific grounds were not
apparent from the context.” N.C. R. App. P. 10(a)(1). Nevertheless, “[t]o prevent
manifest injustice to a party . . . either court of the appellate division may . . . suspend
or vary the requirements or provisions of any of [the appellate] rules in a case pending
before it.” Id. at R. 2. The court in Campbell II noted that a previous panel of that
court had “invoked Rule 2 to review a similar fatal variance argument and held that
this type of error is ‘sufficiently serious to justify the exercise of our authority under
[Rule 2].’ ” Campbell, ___ N.C. App. at ___, 777 S.E.2d at 530 (alteration in original)
(quoting State v. Gayton – Barbosa, 197 N.C. App. 129, 134, 676 S.E.2d 586, 590
(2009), appeal denied sub nom. Gayton – Barbosa v. Sapper, No. 5:10-HC - 2218 BO,
2012 WL 174 299 (E.D.N.C. Jan. 20. 2012)). Without further discussion or analysis
regarding Rule 2, the court then addressed the merits of defendant’s argument,
determining that a fatal variance indeed existed between the indictment—which
alleged the stolen sound equipment was owned by both the church and its pastor—
and the evidence at trial—which showed that the equipment belonged to the church
alone. Id. at ___, 777 S.E.2d at 534. Accordingly, the court vacated defendant’s
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Opinion of the Court
larceny conviction.2 The State again petitioned this Court for discretionary review,
and on 9 June 2016, the State’s petition was allowed “only as to whether the Court of
Appeals erred in invoking Rule 2 of the North Carolina Rules of Appellate Procedure
under the circumstances of this case.” See State v. Campbell, 368 N.C. 904, 794
S.E.2d 800 (2016).
As this Court has repeatedly stated, “Rule 2 relates to the residual power of
our appellate courts to consider, in exceptional circumstances, significant issues of
importance in the public interest or to prevent injustice which appears manifest to
the Court and only in such instances.” Steingress v. Steingress, 350 N.C. 64, 66, 511
S.E.2d 298, 299-300 (1999) (citing Blumenthal v. Lynch, 315 N.C. 571, 578, 340 S.E.2d
358, 362 (1986)) (emphases added); see also Dogwood Dev. & Mgmt. Co. v. White Oak
Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008). This assessment—
whether a particular case is one of the rare “instances” appropriate for Rule 2
review—must necessarily be made in light of the specific circumstances of individual
cases and parties, such as whether “substantial rights of an appellant are affected.”
State v. Hart, 361 N.C. 309, 316, 644 S.E.2d 201, 205 (2007) (citing, inter alia, State
v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984) (per curiam) (“In view of
the gravity of the offenses for which defendant was tried and the penalty of death which
was imposed, we choose to exercise our supervisory powers under Rule 2 of the Rules
2 In light of this result, the court did not address defendant’s final two arguments of
error in connection with the larceny conviction. Id. at ___, 777 S..2d at 534.
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of Appellate Procedure and, in the interest of justice, vacate the judgments entered
and order a new trial.” (emphasis added)). In simple terms, precedent cannot create
an automatic right to review via Rule 2. Instead, whether an appellant has
demonstrated that his matter is the rare case meriting suspension of our appellate
rules is always a discretionary determination to be made on a case-by-case basis.3
See Dogwood Dev. & Mgmt. Co., 362 N.C. at 196, 657 S.E.2d at 364; Hart, 361 N.C.
at 315-17, 644 S.E.2d at 204-06; Steingress, 350 N.C. at 66, 511 S.E.2d at 299-300.
Here, the Court of Appeals did not reach the merits of defendant’s fatal
variance argument after an independent determination of whether the specific
circumstances of defendant’s case warranted invocation of Rule 2, but rather, based
upon a belief that “this type of error” automatically entitles an appellant to review
via Rule 2. See Campbell, ___ N.C. App. at ___, 777 S.E.2d at 530. The court thus
acted under the erroneous belief that, because defendant presented a fatal variance
argument, the court lacked the ability to act otherwise than to reach the merits of
defendant’s contention. In doing so, the lower court failed to recognize its discretion
to refrain from undertaking such a review if it so chose. Because the Court of Appeals
proceeded under this misapprehension of law, it failed to exercise the discretion
3 Notably, the Court of Appeals panel in Gayton–Barbosa, the case cited by the
Campbell II panel, employed exactly such an individualized analysis in deciding to invoke
Rule 2. Gayton–Barbosa, 197 N.C. App. 129, 135 & n.4, 676 S.E.2d 586, 590 & n.4 (discussing
the specific circumstances and then determining that, “given the peculiar facts of this case, it
is appropriate to address [the] defendant’s variance-based challenge on the merits”(emphasis
added)).
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Opinion of the Court
inherent in the “residual power of our appellate courts.” See Steingress, 350 N.C. at
66, 511 S.E.2d at 299-300.
Accordingly, we reverse and remand this case to the Court of Appeals so that
it may independently and expressly determine whether, on the facts and under the
circumstances of this specific case, to exercise its discretion to employ Rule 2 of the
North Carolina Rules of Appellate Procedure, suspend Rule 10(a)(1), and consider the
merits of defendant’s fatal variance argument. The remaining issue addressed by the
Court of Appeals is not before this Court, and that court’s decision as to that matter
remains undisturbed.
REVERSED and REMANDED.
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