State v. Campbell , 257 N.C. App. 739 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA13-1404-3
Filed: 6 February 2018
Cleveland County, Nos. 12CRS054927-28
STATE OF NORTH CAROLINA
v.
THOMAS CRAIG CAMPBELL, Defendant.
Upon remand from the Supreme Court of North Carolina for further review of
an appeal by defendant from judgment entered on or about 12 June 2013 by Judge
Linwood O. Foust in Superior Court, Cleveland County. Originally heard in the
Court of Appeals on 7 May 2014, with opinion filed 1 July 2014. An opinion reversing
the first decision of the Court of Appeals and remanding for consideration of issues
not previously addressed by this Court was filed by the Supreme Court of North
Carolina on 11 June 2015. On remand, a second Court of Appeals opinion was filed
on 20 October 2015. On discretionary review, the Supreme Court of North Carolina
filed an opinion on 9 June 2017 reversing and remanding the matter to the Court of
Appeals once again so the Court could independently and expressly determine
whether to exercise its discretion under Rule 2 to suspend the appellate rules and
consider the merits of defendant’s claim.
Attorney General Joshua H. Stein, by Assistant Attorney General Allison A.
Angell and Assistant Attorney General Teresa M. Postell, for the State.
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Opinion of the Court
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jason
Christopher Yoder, Assistant Appellate Defender Barbara S. Blackmon, and
Assistant Appellate Defender Hannah Hall Love, for defendant-appellant.
STROUD, Judge.
This is now the third time this appeal has been considered by this Court. To
briefly recap, defendant Thomas Craig Campbell (“defendant”) appealed from a
judgment entered on a jury verdict finding him guilty of breaking or entering a place
of religious worship with intent to commit a larceny therein and larceny after
breaking or entering. Defendant raised six issues in his appeal, arguing that (1) the
indictment for larceny was fatally defective because it failed to allege that Manna
Baptist Church was an entity capable of owning property; (2) insufficient evidence
supports his conviction for breaking or entering a place of religious worship with
intent to commit a larceny therein; (3) 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; (4) the trial court
erred in failing to dismiss the larceny charge due to a fatal variance as to the
ownership of the property; (5) insufficient evidence supports his larceny conviction;
and (6) the trial court violated his constitutional right to a unanimous jury verdict
regarding the larceny charge.
Issues (1) and (2) were addressed in our first opinion and the Supreme Court’s
reversal of that decision on discretionary review. State v. Campbell, 234 N.C. App.
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551, 759 S.E.2d 380 (2014) (“Campbell COA I”), rev’d and remanded, 368 N.C. 83, 772
S.E.2d 440 (2015) (“Campbell SC I”). On remand, in our second unanimous opinion,
this Court disagreed with defendant on Issue (3) but agreed with defendant on Issue
(4). State v. Campbell, __ N.C. App. __, 777 S.E.2d 525 (2015) (“Campbell COA II”),
review allowed in part, 368 N.C. 904, 794 S.E.2d 800 (2016) (“Campbell SC review of
COA II allowed”), and rev’d and remanded, __ N.C. __, 799 S.E.2d 600 (2017)
(“Campbell SC II”). On discretionary review, the Supreme Court once again
remanded the matter to this Court, not on any substantive grounds but rather “for
an independent assessment of whether that court need and 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.” Campbell SC
II, __ N.C. at __, 799 S.E.2d at 601.
In this opinion, as the Supreme Court directed, we reiterate why we have once
again chosen to invoke our discretion under Rule 2 to address defendant’s arguments
regarding Issue (4). In invoking our discretion under Rule 2 to reach the merits of
defendant’s arguments regarding Issue (4), we hold that the trial court erred in failing
to dismiss the larceny charge due to a fatal variance between the indictment and
evidence regarding ownership of the missing property. We also address Issues (5)
and (6) in the interest of judicial economy.
I. Background
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i. Factual Background
Because the Supreme Court remanded the matter to this Court on procedural
grounds and no additional factual background is needed, we directly quote the
underlying facts as stated in our prior opinions:
On 8 October 2012, defendant was indicted for
breaking or entering a place of religious worship and
larceny after breaking or entering. The larceny indictment
alleged that on 15 August 2012 defendant “willfully and
feloniously did steal, take, and carry away a music receiver,
microphones, and sounds [sic] system wires, the personal
property of Andy [Stevens] and Manna Baptist Church,
pursuant to a breaking or entering in violation of N.C.G.S.
14-54.1(a).” Defendant pled not guilty and proceeded to
jury trial.
At trial, the State’s evidence tended to show that
Pastor Andy [Stevens] of Manna Baptist Church, located
on Burke Road in Shelby, North Carolina, discovered after
Sunday services on 19 August 2012 that a receiver, several
microphones, and audio cords were missing. The cords
were usually located at the front of the church, by the
sound system, or in the baptistery changing area. It
appeared that the sound system had been opened up and
items inside had been moved around. Pastor [Stevens]
found a wallet in the baptistery changing area that
contained a driver’s license belonging to defendant.
Pastor [Stevens] testified that when the church
secretary arrived on Thursday morning earlier that week,
she had noticed that the door was unlocked. She assumed
that it had been left unlocked after Wednesday night
services, which had ended around 9 p.m. Although the
front door is normally locked at night, on cross-
examination, Pastor [Stevens] admitted that the church
door had been left unlocked overnight before. Pastor
[Stevens] said that the secretary did not notice anything
amiss on Thursday morning.
After Pastor [Stevens] realized that the audio
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Opinion of the Court
equipment was missing he called the Cleveland County
Sheriff’s Office. Deputy Jordan Bowen responded to the
scene. The deputy examined the premises but found no
signs of forced entry. He recovered defendant’s wallet from
the pastor.
Investigator Jessica Woosley went to speak with
defendant at the Cleveland County Detention Center,
where he was being held on an unrelated breaking or
entering charge. When Investigator Woosley introduced
herself, defendant said, “[T]his can’t possibly be good.
What have I done now that I don’t remember?”
Investigator Woosley read defendant his Miranda rights
and defendant invoked his right to counsel. Investigator
Woosley tried to end the interview, but defendant
continued talking.
Defendant admitted that he had been to Manna
Baptist Church on the night in question, but stated that he
could not remember what he had done there. He explained
that he had mental issues and blacked out at times.
Defendant claimed to be a religious man who had been “on
a spiritual journey.” He said that he remembered the door
to the church being open, but that he did not remember
doing anything wrong.
After speaking with defendant, Investigator
Woosley searched through a pawn shop database for any
transactions involving items matching those missing from
the church but did not find anything. The missing items
were never recovered.
At the close of the State’s evidence, defendant moved
to dismiss the charges. The trial court denied the motion.
Defendant then elected to present evidence and testify on
his own behalf. Defendant testified that he was a [fifty-
one-year-old] man with a high school education and one
semester of college. He said that on 15 August 2012, he
had been asked to leave the home he was living in, so he
packed his possessions in a duffel bag and left. He started
walking toward a friend’s house but dropped the bag in a
ditch because it was too heavy to carry long-distance.
Around midnight, defendant arrived at his friend’s
house, but his friend’s girlfriend asked him to leave, so he
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Opinion of the Court
did. Defendant continued walking down the road until he
came upon the church. He noticed that the door was
cracked slightly and a “sliver of light” was emanating from
within. Defendant explained that after all his walking, he
was thirsty and tired, so he went into the church looking
for water and sanctuary. He said that while he was inside,
he got some water, prayed, and slept. He claimed that he
did not intend to take anything and did not take anything
when he left around daybreak.
After leaving the church, defendant began walking
down the road again. He soon began having chest pains
and called 911. Defendant explained that he was on a
variety of medications at the time, including powerful
psychotropic medication. An ambulance arrived and took
him to Cleveland Memorial Hospital.
Calvin Cobb, the Emergency Medical Technician
(EMT) who responded to defendant’s call, also testified on
defendant’s behalf. Mr. Cobb said that they received a
dispatch call around 6:30 a.m. When they arrived at the
intersection of Burke Road and River Hill Road, they saw
defendant near an open field, sitting on the back of a fire
truck that had been first to respond. Defendant told Mr.
Cobb that he had been wandering all night. Mr. Cobb
noticed that defendant looked disheveled and worn out,
and that defendant had worn through the soles of his shoes.
Mr. Cobb did not see defendant carrying anything and did
not find anything in his pockets.
After defendant rested his case, the State called
another officer in rebuttal. The State wanted to offer his
testimony regarding defendant’s prior breaking or entering
arrest. The trial court asked the State to explain the
relevance of the prior incident. The State argued that it
contradicted part of defendant’s testimony regarding what
happened before he got to the church, but did not elaborate
on how it contradicted defendant’s testimony and did not
otherwise explain its relevance. The trial court excluded
the rebuttal testimony under [North Carolina Rule of
Evidence 403]. At the close of all the evidence, defendant
renewed his motion to dismiss all charges, which the trial
court again denied.
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The jury found defendant guilty of both charges.
The trial court consolidated the charges for judgment and
sentenced defendant to a split sentence of 13-25 months [of]
imprisonment, suspended for 24 months of supervised
probation, and an active term of 140 days in jail.
Defendant gave timely written notice of appeal.
Campbell COA II, __ N.C. App. at __, 777 S.E.2d at 527-28 (quoting Campbell COA I,
234 N.C. App. at 552-55, 759 S.E.2d at 382-83 (first alteration in original)).
ii. Procedural Background on Remand
We first note that this Court has not requested new briefs since this case was
originally heard on 7 May 2014. New briefs were filed both times this case was
considered by our Supreme Court. Defendant and the State jointly filed a motion
with this Court to consider the Supreme Court briefs on remand or to allow
supplemental briefing. Because the Supreme Court briefs and prior briefs with this
Court sufficiently address the issues at hand, we have granted the motion in part, to
consider the Supreme Court briefs, and denied in part as to supplemental briefing.
As noted above, this is the third time this appeal has been considered by this
Court. After this Court’s opinion in the first appeal, Campbell COA I, the Supreme
Court on discretionary review overruled a line of cases from this Court which in the
first opinion we had been required to follow:
[We] hold that alleging ownership of property in an entity
identified as a church or other place of religious worship,
like identifying an entity as a “company” or “incorporated,”
signifies an entity capable of owning property, and the line
of cases from the Court of Appeals that has held otherwise
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Opinion of the Court
is overruled. See, e.g., State v. Patterson, 194 N.C. App.
608, 614, 671 S.E.2d 357, 361 (holding that indictment
naming “First Baptist Church of Robbinsville” was fatally
defective), disc. rev. denied, 363 N.C. 587, 683 S.E.2d 383(2009); State v. Cathey, 162 N.C. App. 350, 353-54, 590
S.E.2d 408, 410-11 (2004) (holding that indictment naming
“Faith Temple Church of God” was fatally defective).
Accordingly, the larceny indictment here is valid on its face
even though it does not specify that Manna Baptist Church
is an entity capable of owning property, and the Court of
Appeals erred in vacating defendant’s conviction for
larceny on that basis.
Campbell SC I, 368 N.C. at 87, 772 S.E.2d at 444.
The Supreme Court therefore reversed this Court’s first opinion and
held that (1) the larceny indictment was valid on its face
even though it did not specify that Manna Baptist Church
was an entity capable of owning property; and (2) sufficient
evidence supported defendant’s conviction for breaking or
entering a place of religious worship with intent to commit
a larceny therein. State v. Campbell, 368 N.C. 83, __, 772
S.E.2d 440, 444-45 (2015). The North Carolina Supreme
Court remanded the case to this Court for consideration of
any remaining issues. See id. at __, 772 S.E.2d at 445.
Campbell COA II, __ N.C. App. at __, 777 S.E.2d at 526-27.
Defendant originally raised six issues on appeal, and the Supreme Court’s first
opinion resolved defendant’s first two issues. Thus, on remand to this Court “for
consideration of any remaining issues on appeal[,]” Campbell SC I, 368 N.C. at 88,
772 S.E.2d at 445, we noted defendant’s remaining Issues (3), (4), (5), and (6). On
these issues,
Defendant contends . . . (3) he was deprived of effective
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Opinion of the Court
assistance of counsel, because his counsel failed to object to
the admission of evidence that defendant had committed a
separate breaking or entering offense; (4) the trial court
erred in failing to dismiss the larceny charge due to a fatal
variance as to the ownership of the property; (5)
insufficient evidence supports his larceny conviction; and
(6) the trial court violated his constitutional right to a
unanimous jury verdict with respect to the larceny charge.
Campbell COA II, __ N.C. App. at __, 777 S.E.2d at 526.
In Campbell COA II, we determined that defendant had not shown ineffective
assistance of counsel, resolving Issue (3). Id. at __, 777 S.E.2d at 530. We decided,
in our discretion, to allow review under Rule 2 of Issue (4), and in accord with State
v. Greene, 289 N.C. 578, 223 S.E.2d 365 (1976), and State v. Hill, 79 N.C. 656 (1878),
we held that “a fatal variance exists because the evidence showed that the stolen
property belonged to the church only.” Campbell COA II, __ N.C. App. at __, 777
S.E.2d at 534. We therefore vacated defendant’s conviction for larceny. Id. at __, 777
S.E.2d at 534. Because of our ruling on Issue (4), we did not address Issues (5) and
(6).
Once again, the Supreme Court granted discretionary review, but 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.” Campbell SC review of
COA II allowed, 368 N.C. at 904, 794 S.E.2d at 800. In its second opinion, the
Supreme Court did not address the substantive issues, but remanded for this Court
to “independently and expressly determine whether, on the facts and under the
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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.” Campbell SC II, __ N.C. at __, 799
S.E.2d at 603. The Supreme Court stated:
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 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.
Campbell SC II, __ N.C. at __, 799 S.E.2d at 603. We will therefore, for the second
time, “independently and expressly determine whether, on the facts and under the
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circumstances of this specific case, to exercise [our] 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.” Campbell SC II, __ N.C. at __, 799
S.E.2d at 603.
We first respectfully note this Court did not act under “the erroneous belief”
that we were required to “reach the merits of defendant’s contention” on his fatal
variance argument, nor did we “fail[] to recognize [our] discretion to refrain from
undertaking such a review if [we] so chose.” Id. at __, 799 S.E.2d at 603. Our opinion
noted that review under Rule 2 is discretionary and that we had the authority to deny
this review, which is why the opinion stated that we would “exercise our discretion
under Rule 2 to review this issue.” Campbell COA II, __ N.C. App. at __, 777 S.E.2d
at 530 (emphasis added). Yet we also appreciate the Supreme Court’s concern that
discretionary review under Rule 2 be granted only in the appropriate cases and
understand that we should fully explain our rationale for allowing discretionary
review.
II. N.C. Rule of Appellate Procedure Rule 2 Analysis
i. Discretion Under Rule 2
Discretion is an essential concept in judicial decision-making. Determining
how and when to exercise its discretion is a crucial part of any court’s role. Black’s
Law Dictionary defines “judicial discretion” as “[t]he exercise of judgment by a judge
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or court based on what is fair under the circumstances and guided by the rules and
principles of law; a court’s power to act or not act when a litigant is not entitled to
demand the act as a matter of right.” Discretion, Black’s Law Dictionary (9th Ed.
2009). To determine what is “fair under the circumstances,” usually courts are
“guided by the rules and principles of law,” id., since if a court acted without
consideration of “rules and principles of law,” including prior cases from the same
court or a higher court whose opinions are binding upon the lower court, litigants
similarly situated and with similar cases may be treated differently. In the United
States, we normally consider such different treatment as unfair, if there are no other
extenuating circumstances to justify such disparate treatment. Even a small child
has a sense of fairness and believes that he has been treated unfairly if he gets the
smaller piece of cake while his brother gets the larger piece. Individual judges and
courts have discretion in many areas of law and our legal system is considered “fair”
only where that discretion is exercised thoughtfully, carefully, and to the extent
possible, in the same manner for cases and issues of the same sort.
Scholars who study how courts exercise discretion have described two types of
judicial discretion: primary and secondary.
When an adjudicator has the primary type, he has
decision-making discretion, a wide range of choice as to
what he decides, free from the constraints which
characteristically attach whenever legal rules enter the
decision process. When the law accords primary discretion
in the highest degree in a particular area, it says in effect
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that the court is free to render the decision it chooses; that
decision-constraining rules do not exist here; and that even
looser principles or guidelines have not been formulated.
In such an area, the court can do no wrong, legally
speaking, for there is no officially right or wrong answer.
The other type of discretion, the secondary form, has
to do with hierarchical relations among judges. It enters
the picture when the system tries to prescribe the degree
of finality and authority a lower court’s decision enjoys in
the higher courts. Specifically, it comes into full play when
the rules of review accord the lower court’s decision an
unusual amount of insulation from appellate revision. In
this sense, discretion is a review-restraining concept. It
gives the trial judge a right to be wrong without incurring
reversal.
....
One source of confusion in treating the subject is
that courts tend to use the two types of discretion
indiscriminately, interchangeably and without marking
the distinction.
Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22
Syracuse L.Rev. 635, 637-38 (1971).
As an appellate court, we have the secondary form of discretion, and although
it is a “review-restraining concept,” our Supreme Court has given us guidance in how
to exercise our discretion under Rule 2. As explained by the Supreme Court in State
v. Hart:
Fundamental fairness and the predictable operation of and
predictably operating the courts for which our Rules of
Appellate Procedure were designed depend upon the
consistent exercise of this authority. Furthermore,
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inconsistent application of the Rules may detract from the
deference which federal habeas courts will accord to their
application. Although a petitioner’s failure to observe a
state procedural rule may constitute an adequate and
independent state ground barring federal habeas review, a
state procedural bar is not “adequate” unless it has been
consistently or regularly applied. Thus, if the Rules are not
applied consistently and uniformly, federal habeas
tribunals could potentially conclude that the Rules are not
an adequate and independent state ground barring review.
Therefore, it follows that our appellate courts must enforce
the Rules of Appellate Procedure uniformly.
State v. Hart, 361 N.C. 309, 317, 644 S.E.2d 201, 206 (2007) (citations, quotation
marks, and brackets omitted) (emphasis added).
ii. Cases Addressing Rule 2 Review of Fatal Variance Issues
In our last opinion we briefly addressed our decision to allow review under Rule
2:
Defendant next contends that the trial court erred
in failing to dismiss the larceny charge due to a fatal
variance between the indictment and the evidence as to the
ownership of the stolen property. Defendant’s trial counsel
failed to raise this issue at trial, so defendant requests that
we invoke North Carolina Rule of Appellate Procedure 2,
or, alternatively, that we review this issue for ineffective
assistance of counsel. N.C. R. App. P. 2 (“To prevent
manifest injustice to a party . . . either court of the
appellate division may . . . suspend or vary the
requirements or provisions of any of these rules in a case
pending before it[.]”). In State v. Gayton-Barbosa, this
Court 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].” 197 N.C. App. 129, 134, 676 S.E.2d 586, 589-90 (2009).
Accordingly, we exercise our discretion under Rule 2 to
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review this issue.
Campbell COA II, __ N.C. App. at __, 777 S.E.2d at 530 (emphasis added).
We regret we did not explain our deliberative process, but we were, and still
are, well aware of this Court’s discretion to decline to review defendant’s fatal
variance argument under Rule 2. As directed by the Supreme Court, we will explain
why we now exercise our discretion to review defendant’s argument under Rule 2.
Our discretion is guided in large part by other similar cases decided by this
Court and the North Carolina Supreme Court, although clearly the result itself does
not depend upon the result in any prior case. As directed by Hart, we have taken
care to exercise our discretion in applying Rule 2 “consistently and uniformly.” Hart,
361 N.C. at 317, 644 S.E.2d at 206. On remand, we have attempted to survey every
North Carolina case, published and unpublished, which has addressed whether to
grant discretionary review under Rule 2 of an argument based upon a fatal variance.1
We have found that in many cases which have granted discretionary review, this
Court determined that the defendant raised a meritorious fatal variance argument,
so his conviction on the particular crime would have to be reversed, but for this
determination. See, e.g., State v. Hill, __ N.C. App. __, __, 785 S.E.2d 178, 180 (2016)
(“[W]e conclude that one of these fatal variance arguments is meritorious and exercise
1 Although citation of unpublished cases is disfavored under N.C. R. App. P. 30(e)(3) and such
cases do not constitute controlling legal authority, we have reviewed both published and unpublished
cases in the interest of understanding this Court’s approaches to these cases and uniformity of
treatment of similarly-situated cases. We are not citing unpublished cases as binding precedent.
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our discretion under Rule 2 to suspend the appellate preservation rules and consider
that argument[.]”); State v. Gayton-Barbosa, 197 N.C. App. 129, 135, 676 S.E.2d 586,
590 (2009) (“[G]iven the peculiar facts of this case, it is appropriate to address
defendant’s variance-based challenge on the merits.”); State v. Langley, 173 N.C. App.
194, 199, 618 S.E.2d 253, 257 (2005) (“[W]e hold that there was a fatal variance
between the indictment and the evidence. Accordingly, we vacate defendant’s
conviction for possession of a firearm by a felon.”). Since failure to grant discretionary
review would be a “manifest injustice” to the defendant, the court has granted
discretionary review. See, e.g., Gayton-Barbosa, 197 N.C. App. at 135, 676 S.E.2d at
590 (“[I]t is difficult to contemplate a more ‘manifest injustice’ to a convicted
defendant than that which would result from sustaining a conviction that lacked
adequate evidentiary support[.]”); Langley, 173 N.C. App. at 197, 618 S.E.2d at 255(“We believe it necessary to apply Rule 2 and consider the merits of defendant’s
argument in order to prevent manifest injustice.”). See also State v. Johnson, 214
N.C. App. 195, 714 S.E.2d 530 (Aug. 2, 2011) (No. COA10-1031) (unpublished).
There are also cases in which this Court elected to invoke Rule 2 -- because
those cases involved situations similar to others where we had invoked Rule 2 -- but
then ultimately concluded that a fatal variance had not actually occurred under those
facts and circumstances. See, e.g., State v. McNair, __ N.C. App. __, __, 799 S.E.2d
631, 643, 644 (exercising Rule 2 discretionary review and comparing to Gayton-
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Opinion of the Court
Barbosa, where “we invoked Rule 2 to review a similar fatal variance argument that
had not been adequately preserved for appellate review[,]” but ultimately concluding
“we cannot say that a variance existed between the charge alleged in the indictment
and the evidence at trial.”), disc. review denied, __ N.C. __, 803 S.E.2d 394 (2017);
State v. Everette, 237 N.C. App. 35, 40, 764 S.E.2d 634, 638 (2014) (electing to review
defendant’s argument “in our discretion pursuant to Rule 2” but concluding that the
defendant “has not shown a variance between the indictment and the evidence
presented.”). See also State v. Jefferies, __ N.C. App. __, __, 776 S.E.2d 872, 878-79
(2015) (invoking Rule 2 but finding no fatal variance); State v. Weaver, 123 N.C. App.
276, 291, 473 S.E.2d 362, 371 (1996); State v. Holloway, __ N.C. App. __, 799 S.E.2d
466 (May 16, 2017) (No. COA16-940) (unpublished); State v. Tomlinson, 230 N.C.
App. 146, 752 S.E.2d 258 (Oct. 15, 2013) (No. COA13-398) (unpublished); State v.
Maberson, 225 N.C. App. 267, 736 S.E.2d 648 (Jan. 15, 2013) (No. COA12-227)
(unpublished); State v. Wilkes, 188 N.C. App. 848, 656 S.E.2d 735 (Feb. 19, 2008) (No.
COA07-395) (unpublished).
Where this Court has not granted discretionary review, the Court has typically
determined there was no fatal variance and thus no need to consider the issue --
which is tacitly a determination of the issue -- because it would make no difference in
the result if we allowed review. See, e.g., State v. Mostafavi, __ N.C. App. __, __, 802
S.E.2d 508, 510 (“Defendant has failed to demonstrate the ‘exceptional circumstances’
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necessary . . . for us to invoke Appellate Rule 2.”), temporary stay allowed, __ N.C. __,
800 S.E.2d 419 (2017); State v. Pender, __ N.C. App. __, __, 776 S.E.2d 352, 358 (2015)
(“Because this case does not involve exceptional circumstances, we, in our discretion,
decline to invoke Rule 2.”). Failure to grant review causes no injustice since it would
not change the result. See, e.g., Pender, __ N.C. App. at __, 776 S.E.2d at 358 (“Even
assuming, without deciding, that defendant’s trial counsel’s performance was
deficient, defendant cannot show the requisite prejudice since, even if the alleged
variances were made the basis for his motion to dismiss, the motion should have in
any event been denied.”). See also State v. Joyner, 227 N.C. App. 650, 745 S.E.2d 375(June 4, 2013) (No. COA12-1244) (unpublished); State v. Velasquez, 204 N.C. App.
597, 696 S.E.2d 924 (June 15, 2010) (No. COA09-1274) (unpublished) (“As the
evidence tends to show that there was no fatal variance between the indictment and
the evidence presented at trial, we conclude that the facts in this case do not present
such ‘exceptional circumstances’ that Rule 2 need be invoked to avoid ‘manifest
injustice.’”). By considering the potential merit of the fatal variance argument and
determining that no fatal variance existed, these opinions imply that the Court may
have granted review under Rule 2 if the case involved an actual fatal variance which
could have changed the result on the merits.
In other cases, both this Court and the Supreme Court have avoided
addressing directly whether or not to apply Rule 2 and instead taken the approach of
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Opinion of the Court
assuming for argument’s sake that the argument was properly preserved for appeal,
but then concluding nevertheless that the asserted fatal variance argument would
fail, so it is not worth addressing further. See, e.g., State v. Pickens, 346 N.C. 628,
645, 488 S.E.2d 162, 172 (1997) (“[A]ssuming arguendo that defendant has preserved
this argument for review, we hold that the asserted variance does not constitute error
in this case.”); State v. Frazier, 228 N.C. App. 568, 749 S.E.2d 112 (Aug. 6, 2013) (No.
COA13-5) (unpublished). Just as in the cases above where the Court did not grant
Rule 2 review because no fatal variance existed, by considering arguendo the fatal
variance issue, these opinions also imply that the Court may have granted review
under Rule 2 if the case involved an actual fatal variance which could have changed
the result on the merits.
But there are also, in contrast, a limited number of cases where this Court has
simply declined -- without evaluating the merits of the argument -- to exercise its
discretion to review a fatal variance argument simply because no argument was
raised to the trial court of such fatal variance. See, e.g., State v. Hooks, __ N.C. App.
__, __, 777 S.E.2d 133, 139 (“Defendant seeks for the first time on appeal to argue the
trial court erred by denying his motion to dismiss due to a fatal variance between the
indictment and the State’s proof at trial. Defendant failed to raise or make this
argument in support of his motion to dismiss at trial. Because Defendant failed to
properly preserve this issue, he has waived his right to appellate review on this issue.
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Opinion of the Court
We decline to address the issue and dismiss this issue.” (citation omitted)), disc.
review denied, 368 N.C. 605, 780 S.E.2d 561 (2015); see also State v. Hester, 224 N.C.
App. 353, 358, 736 S.E.2d 571, 574 (2012), aff’d per curiam, 367 N.C. 119, 748 S.E.2d
145 (2013); State v. Curry, 203 N.C. App. 375, 385-86, 692 S.E.2d 129, 138 (2010).
Since the Supreme Court has remanded this case to us with the direction to
“independently and expressly determine whether, on the facts and under the
circumstances of this specific case,” Campbell SC II, __ N.C. at __, 799 S.E.2d at 603,
we believe it would be inappropriate in this particular case to simply allow or reject
review under Rule 2 with no further explanation in our opinion.
As directed by the Supreme Court in Hart, one of our considerations is to
exercise our discretionary authority under Rule 2 uniformly and consistently from
case to case, so we treat all parties in cases similarly situated and present similar
issues the same, to the extent this is possible. In State v. Hargett, our Court
recognized the injustice of either granting or denying discretionary review in a
manner inconsistent with the treatment in other similar cases:
However, to address the merits of Hargett’s appeal, despite
his failure to recognize and comply with longstanding case
law both at trial and in his brief to this Court, would not
prevent manifest injustice. Rather, we believe it would be
an injustice to the numerous other defendants who have
had their appeals dismissed by application of the holding
of Oglesby. See, e.g., State v. Bryant, __ N.C. App. __, 753
S.E.2d 397 (2013) (unpublished); State v. Berrier, 217 N.C.
App. 641, 720 S.E.2d 459 (2011) (unpublished); State v.
Black, 217 N.C. App. 196, 719 S.E.2d 255 (2011)
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Opinion of the Court
(unpublished); State v. Gause, 201 N.C. App. 447, 688
S.E.2d 550 (2009) (unpublished); State v. Toler, 189 N.C.
App. 212, 657 S.E.2d 446 (2008) (unpublished); State v.
Sullivan, 186 N.C. App. 681, 652 S.E.2d 71 (2007)
(unpublished). Hargett has not convinced this panel that
invocation of Rule 2 is appropriate here. Accordingly, his
appeal is dismissed.
State v. Hargett, 241 N.C. App. 121, 128, 772 S.E.2d 115, 121, appeal dismissed, disc.
review and cert. denied, __ N.C. __, 776 S.E.2d 191 (2015).
In our prior opinion, when we compared defendant’s situation to the facts and
legal issue in Gayton-Barbosa, 197 N.C. App. at 135, 676 S.E.2d at 590, we considered
this case to be so similar to Gayton-Barbosa we erroneously thought it unnecessary
to present further explanation beyond that already apparent from the facts,
procedural history, and issues presented. But we did not engage in an extended
discussion of how we made our independent determination this case was so similar
to Gayton-Barbosa and others that we believed we should allow review under Rule 2.
Our dissenting colleague seeks to distinguish the two cases based upon the “gravity”
of the offenses, but the defendant in Gayton-Barbosa was, like defendant here,
charged with several felonies, and one of those charges was felony larceny, the same
crime we are considering here. Id. at 131, 676 S.E.2d at 588. We cannot distinguish
the “gravity” of the charge of felony larceny here from the same charge in Gayton-
Barbosa, either by its effect on the defendant or on society, since it was the same
crime. The same legal argument was addressed in both cases as well. Id. at 133-35,
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Opinion of the Court
676 S.E.2d at 589-90. After review of all of this Court’s prior opinions on this subject,
we seek to exercise our discretion in accord with this Court’s prior treatment of
similar cases. The Supreme Court did express approval for the analytical framework
in Gayton-Barbosa, so we will use that approach and describe our independent
determination to allow review under Rule 2.
iii. Application of Gayton-Barbosa Approach to Rule 2 Review
We first note the procedural and legal stance of defendant’s request for Rule 2
review by this Court on first remand from the Supreme Court. Besides its factual,
legal, and procedural history, this case presented the additional extraordinary
element of the Supreme Court’s opinion in Campbell I’s appeal, which overruled an
entire line of cases. Campbell SC I, 368 N.C. at 87, 772 S.E.2d at 444. The law as
established in Campbell SC I affected the legal issue defendant had presented for
discretionary review under Rule 2. See id. (“Therefore, we hold that alleging
ownership of property in an entity identified as a church or other place of religious
worship, like identifying an entity as a ‘company’ or ‘incorporated,’ signifies an entity
capable of owning property, and the line of cases from the Court of Appeals that has
held otherwise is overruled. Accordingly, the larceny indictment here is valid on its
face even though it does not specify that Manna Baptist Church is an entity capable
of owning property, and the Court of Appeals erred in vacating defendant’s conviction
for larceny on that basis.” (citations omitted)).
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The Supreme Court’s ruling in Campbell SC I essentially created the law
which gave defendant’s Issue (4) such strength it could be outcome-determinative and
could cause manifest injustice to defendant if not reviewed, since it changed the result
on defendant’s first issue. We noted as much in our second opinion:
Based upon our Supreme Court’s opinion in this case
on discretionary review, Manna Baptist Church was an
entity capable of owning property. Campbell, 368 N.C. at
__, 772 S.E.2d at 444 (“[W]e hold that alleging ownership
of property in an entity identified as a church or other place
of religious worship, like identifying an entity as a
“company” or “incorporated,” signifies an entity capable of
owning property, and the line of cases from the Court of
Appeals that has held otherwise is overruled.”). The
evidence showed that Manna Baptist Church owned the
property, but no evidence suggests that Pastor Stevens
individually had any sort of ownership interest in the
property. Additionally, the fact that Pastor Stevens is an
employee of Manna Baptist Church, the true owner of the
property, does not cure the fatal variance.
Campbell COA II, __ N.C. App. at __, 777 S.E.2d at 533.
Since our Supreme Court, in Campbell SC II, overruled none of the many prior
cases of this Court or the Supreme Court which granted discretionary review of fatal
variance issues under Rule 2 under the same of analysis as used in Gayton-Barbosa,
we are still bound by those cases. Although we are not bound to reach the same result
-- to allow review under Rule 2 or not -- we will consider the same factors and use a
similar analysis in making this discretionary decision. The decision to allow review
under Rule 2 is discretionary, but not arbitrary or based upon the whim of a
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Opinion of the Court
particular panel or judge. Since the Supreme Court specifically expressed approval
for the analysis in Gayton-Barbosa, we will use a similar analysis here. See Campbell
SC II, __ N.C. at __, 799 S.E.2d at 603, n.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)).”).
Just as in Gayton- Barbosa, the issue before us is, “the extent, if any, to which
the Court is entitled to address this variance-based challenge to defendant’s felonious
larceny conviction on the merits despite the absence of a contemporaneous objection
at trial.” 197 N.C. App. at 134, 676 S.E.2d at 589. As summarized in Gayton-Barbosa,
we first consider “the Supreme Court’s decision” in State v. Brown, 263 N.C. 786, 787-
88, 140 S.E.2d 413, 413 (1965), where
the Supreme Court granted relief on appeal as the result of
a fatal variance relating to the ownership of allegedly
stolen property despite the fact that no dismissal motion
had been made at trial and that the variance issue had not
been the subject of an assignment of error on appeal. Even
so, the Supreme Court decided this issue on the merits
under its general supervisory authority over the trial
courts. The general supervisory authority under which the
Supreme Court acted in Brown is currently embodied in
N.C. R. App. P. Rule 2, which authorizes “either court of
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Opinion of the Court
the appellate division” to “suspend or vary the
requirements or provisions of any of these rules. . . .”
Although N.C. R. App. P. Rule 2 is available to prevent
“manifest injustice,” the Supreme Court has stated that
this residual power to vary the default provisions of the
appellate procedure rules should only be invoked rarely
and in exceptional circumstances.
Gayton-Barbosa, 197 N.C. App. at 134, 676 S.E.2d at 589 (citations and quotation
marks omitted).
The Gayton-Barbosa Court noted that “the Supreme Court’s decision in Brown
suggests that fatal variances of the type present here are sufficiently serious to justify
the exercise of our authority under N.C. R. App. P. 2.” Gayton-Barbosa, 197 N.C.
App. at 134, 676 S.E.2d at 590. The same issue is presented here, and it is also
“sufficiently serious to justify the exercise of our authority” under Rule 2. Id.The Gayton-Barbosa Court noted a second factor, which is that
a variance-based challenge is, essentially, a contention
that the evidence is insufficient to support a conviction.
The Supreme Court and this Court have regularly invoked
N.C. R. App. P. 2 in order to address challenges to the
sufficiency of the evidence to support a conviction. State v.
Booher, 305 N.C. 554, 564, 290 S.E.2d 561, 566 (1982)
(“Nevertheless, when this Court firmly concludes, as it has
here, that the evidence is insufficient to sustain a criminal
conviction, even on a legal theory different from that
argued, it will not hesitate to reverse the conviction sua
sponte, in order to ‘prevent manifest injustice to a party.’ ”
(quoting N.C. R. App. P. 2))[.]
Gayton-Barbosa, 197 N.C. App. at 134-35, 676 S.E.2d at 590 (citations omitted). This
law applies here as well. Defendant’s challenge is based upon the premise that the
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Opinion of the Court
evidence is insufficient to support his conviction, since the State presented no
evidence that Pastor Stevens had any ownership interest in the property and that he
was simply an employee of Manna Baptist church. Defendant has presented a viable
argument of a fatal variance and insufficiency of the evidence to support his
conviction.
The third, and final, factor discussed by the Gayton-Barbosa Court was the
potential for manifest injustice to the defendant if the court upheld a conviction
without adequate evidentiary support:
Finally, it is difficult to contemplate a more
“manifest injustice” to a convicted defendant than that
which would result from sustaining a conviction that
lacked adequate evidentiary support, particularly when
leaving the error in question unaddressed has double
jeopardy implications. Thus, given the peculiar facts of
this case, it is appropriate to address defendant’s variance-
based challenge on the merits.
Id. at 135, 676 S.E.2d at 589-90. Here, the exact same is true. Defendant’s argument
is that there was not sufficient evidence to show that Pastor Stevens had any
ownership interest in the property, and defendant is correct. It would be manifestly
unjust for defendant’s conviction to be sustained where the State did not present
evidence that Pastor Stevens had an ownership interest in the stolen property under
the fatal variance law as it stands and which this Court is bound to follow.
We therefore consider this to be an unusual and extraordinary case in which
Rule 2 review is appropriate to exercise our discretionary authority consistently and
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Opinion of the Court
fairly, and because our failure to do so would cause manifest injustice to a party, the
defendant. See Hart, 361 N.C. at 315-16, 644 S.E.2d at 205 (“The text of Rule 2
provides two instances in which an appellate court may waive compliance with the
appellate rules: (1) to prevent manifest injustice to a party; and (2) to expedite
decision in the public interest. While it is certainly true that Rule 2 has been and
may be so applied in the discretion of the Court, we reaffirm that 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.” (citations, quotation
marks, and brackets omitted)). In our discretion, we also considered the application
of the fatal variance rule in this case to present a “significant issue[] of importance,”
id., particularly given the Supreme Court’s ruling -- overruling a line of precedents
from this Court -- in Campbell SC I. Campbell SC I, 368 N.C. at 87, 772 S.E.2d at
444.
We also know that we could exercise our discretion differently and make a
different determination on review under Rule 2 than we did in our last opinion. In
fact, had we simply exercised our discretion to decline to review Issue (4), our work
would have been much easier and this opinion much shorter. But we have attempted
to fulfill the Supreme Court’s directions on remand, and in doing so, we have
independently determined to exercise our discretionary authority in accord with
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Opinion of the Court
Hart, Gayton-Barbosa, and our Court’s prior treatment in similar cases, since our
refusal to do so would result in manifest injustice to defendant.
III. Fatal Variance as to Ownership of the Stolen Property
Since we have elected to allow discretionary review of defendant’s Issue (4),
our next task on remand is to consider the same issue as we considered in our last
opinion -- whether the trial court erred in failing to dismiss the larceny charge due to
a fatal variance between the indictment and the evidence on the ownership of the
stolen property. While there have been cases which have addressed fatal variance
since our prior opinion was filed, see, e.g., State v. Bacon, __ N.C. App. __, __, 803
S.E.2d 402, 406, temporary stay allowed, __ N.C. __, 802 S.E.2d 460 (2017); State v.
Fink, __ N.C. App. __, __, 798 S.E.2d 537, 542 (2017); Hill, __ N.C. App. at __, 785
S.E.2d at 182; there has been no major change to case law in this area, so we adopt
the same analysis as we did in Campbell COA II2:
ii. Analysis
Defendant contends that the trial court erred in
2 We also note we are bound to follow the cases from the Supreme Court (as cited in our prior
opinion and quoted here) which hold that where a larceny indictment identifies two owners of the
stolen property, the State must present evidence that both of the alleged owners had an ownership
interest or special property interest in the stolen property. We agree that this requirement may be an
“unnecessary technicality,” as our dissenting colleague notes, but we have no choice but to follow
precedent set by the North Carolina Supreme Court. If there is no facial invalidity of the indictment
which identifies two owners of the stolen property, as is true here, there seems to be no reason to
require dismissal of a case if the State presents evidence that at least one of the alleged owners did
own the property, even if the other did not. It would appear that defendant would be protected from
double jeopardy by the fact that he had already been tried for larceny of the property from both alleged
owners, even if only one of the alleged owners owned the property. But we are bound to follow the
law, going back to at least 1878.
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Opinion of the Court
failing to dismiss the larceny charge due to a fatal variance
as to the ownership of the stolen property. Defendant
specifically argues that a fatal variance occurred “because
the State never proved the property was owned by both
Andy Stevens and Manna Baptist Church.” Defendant
relies on State v. Hill for the proposition that where an
indictment alleges multiple owners, the State must prove
that there were in fact multiple owners. See 79 N.C. 656,
658-59 (1878).
In Hill, the indictment alleged that the stolen
property belonged to “Lee Samuel and others,” but the
evidence at trial showed that the stolen property belonged
to Lee Samuel alone. 79 N.C. at 658. Our Supreme Court
held that this inconsistency constituted a fatal
variance. Id. at 658-59. Hill has been consistently cited
and followed as binding precedent by North Carolina
courts since 1878. See, e.g., State v. Albarty, 238 N.C. 130,
131-32, 76 S.E.2d 381, 382 (1953); State v. Hicks, 233 N.C.
31, 34, 62 S.E.2d 497, 499 (1950); State v. Williams, 210
N.C. 159, 161, 185 S.E. 661, 662 (1936); State v.
Corpening, 191 N.C. 751, 753, 133 S.E. 14, 15 (1926); State
v. Harbert, 185 N.C. 760, 762, 118 S.E. 6, 7 (1923). Most
recently, our Supreme Court cited Hill in State v. Ellis, __
N.C. __, __, 776 S.E.2d 675, 678 (2015). The Court did not
overrule Hill or suggest that its holding is no longer
binding precedent in the fatal variance context, as is the
case here. Id. at __, 776 S.E.2d at 678. In fact, in Ellis, our
Supreme Court carefully distinguished between cases
raising the issue like the one addressed by Ellis, the “facial
sufficiency of the underlying criminal pleading” and the
issue raised here, whether “a fatal variance exist[s]
between the crime charged in the relevant criminal
pleading and the evidence offered by the State at
trial[.]” Id. at __, 776 S.E.2d at 678. Our Supreme Court
discussed Hill as part of its explanation of this distinction:
According to defendant, this Court’s decisions establish
that, where a criminal pleading purporting to charge the
commission of an injury to personal property lists two
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Opinion of the Court
entities as property owners, both entities must be
adequately alleged to be capable of owning property for the
pleading to properly charge the commission of the crime.
Although defendant cites numerous cases in support of this
position, each decision on which he relies involves a claim
that a fatal variance existed between the crime charged in
the relevant criminal pleading and the evidence offered by
the State at trial, rather than a challenge to the facial
sufficiency of the underlying criminal pleading. For
example, in State v. Greene, 289 N.C. 578, 585-86, 223
S.E.2d 365, 370 (1976), this Court held that there was no
fatal variance between the indictment and the evidence in
a case in which both men listed as property owners in the
indictment were shown to have an ownership interest in
the property. Similarly, we concluded in State v. Hill, 79
N.C. 656, 658-59 (1878), that a fatal variance did exist in a
case in which the indictment alleged that the property was
owned by “Lee Samuel and others” while the evidence
showed that Lee Samuel was the sole owner of the property
in question. Finally, in State v. Burgess, 74 N.C. 272, 272-
73 (1876), we determined that a fatal variance existed in a
case in which the indictment alleged that the property was
owned by Joshua Brooks while the evidence tended to show
that the property in question was owned by both Mr.
Brooks and an individual named Hagler. Id. at __, 776
S.E.2d at 678. Thus, if the State fails to present evidence
of a property interest of some sort in both of the alleged
owners, there is a fatal variance between the indictment
and the proof. See id. at __, 776 S.E.2d at 678.
This Court recently summarized the types of
property interest that constitute a “special property
interest,” which, if proven, are consistent with a larceny
indictment’s allegation of ownership:
According to well-established North Carolina law, “the
indictment in a larceny case must allege a person who has
a property interest in the property stolen and that the
State must prove that that person has ownership, meaning
title to the property or some special property
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Opinion of the Court
interest.” State v. Greene, 289 N.C. 578, 584, 223 S.E.2d
365, 369 (1976). “It is a rule of universal observance in the
administration of criminal law that a defendant must be
convicted, if convicted at all, of the particular offense
charged in the bill of indictment.” State v. Jackson, 218
N.C. 373, 376, 11 S.E.2d 149, 151 (1940). In other words,
“the allegation and proof must correspond.” Id. “A
variance between the criminal offense charged and the
offense established by the evidence is in essence a failure
of the State to establish the offense charged.” [State v.
Waddell, 279 N.C. 442, 445, 183 S.E.2d 644, 646 (1971).]
“In indictments for injuries to property it is necessary to
lay the property truly, and a variance in that respect is
fatal.” State v. Mason, 35 N.C. 341, 342 (1852).
However, if it can be shown that the person named in the
indictment, though not the actual owner of the stolen item,
had a “special property interest” in the item, then the
defect in the indictment will not be fatal. State v.
Craycraft, 152 N.C. App. 211, 213, 567 S.E.2d 206, 208
(2002) (“The State may prove ownership by introducing
evidence that the person either possessed title to the
property or had a special property interest. If the
indictment fails to allege the existence of a person with title
or special property interest, then the indictment contains a
fatal variance.” (citation omitted)).
Our Courts have evaluated circumstances in which a
special property interest has been established. See
e.g. State v. Adams, 331 N.C. 317, 331, 416 S.E.2d 380, 388
(1992) (spouses have a special property interest in jointly
possessed property, though not jointly owned); State v.
Schultz, 294 N.C. 281, 285, 240 S.E.2d 451, 454-55 (1978)
(a “bailee or a custodian” has a special property interest in
items in his or her possession); State v. Salters, 137 N.C.
App. 553, 555-56, 528 S.E.2d 386, 389 (2000) (parents have
a special property interest in their children’s belongings
kept in their residence, but “that special interest does not
extend to a caretaker of the property even where the
caretaker had actual possession”)[, cert. denied, 352 N.C.
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Opinion of the Court
361, 544 S.E.2d 556 (2000) ]; State v. Carr, 21 N.C. App.
470, 471-72, 204 S.E.2d 892, 893-94 (1974) (where a car
was registered to a corporation, the son of the owner of that
corporation had a special property interest in the car
because he was the sole user of the car and in exclusive
possession of it).
Conversely, our Courts have established situations in
which a special property interest does not exist. See
e.g. State v. Eppley, 282 N.C. 249, 259-60, 192 S.E.2d 441,
448 (1972) (owner of a residence did not have a special
property interest in a gun kept in his linen closet, but
owned by his father); State v. Downing, 313 N.C. 164, 167-
68, 326 S.E.2d 256, 258-59 (1985) (the owner of a
commercial building did not have a special property
interest in items stolen from that building as the items
were actually owned by the business that rented the
building); Craycraft, 152 N.C. App. at 214, 567 S.E.2d at
208-09 (landlord did not have a special property interest in
furniture he was maintaining after evicting the tenant-
owner).
Gayton-Barbosa, 197 N.C. App. at 135-36, 676 S.E.2d at
590-91 (brackets omitted).
Here, the larceny indictment alleges that the stolen
property belonged to “Andy Stevens and Manna Baptist
Church[.]” But the evidence at trial simply does not
demonstrate that Pastor Stevens held title to or had any
sort of ownership interest in the stolen property. All of the
evidence tends to show that he dealt with the property only
in his capacity as an employee of Manna Baptist Church.
Pastor Stevens testified that he was employed as the pastor
of Manna Baptist Church and lived on the church property,
and the entirety of the evidence relevant to his interest in
the property, if any, was as follows:
[Prosecutor:] On August 19th of 2012, did you arrive at the
church for Sunday services?
[Pastor Stevens:] I did.
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Opinion of the Court
[Prosecutor:] And upon entering the church that day, what
did you observe?
[Pastor Stevens:] We had normal services in the morning.
It wasn’t until at the end of the service that we were aware
that some of the equipment was missing.
[Prosecutor:] Okay. And how was it that you became aware
of that?
[Pastor Stevens:] The sound man was trying to record the
message and had to divert back to the pulpit [microphone]
because the lapel [microphone] was not picking up and at
the close of the service, we found that the receiver was
missing.
[Prosecutor:] Okay. Were there any other items besides the
receiver that were missing?
[Pastor Stevens:] Yes, sir. There were some microphones
and some audio cords.
[Prosecutor:] Where are those generally stored in your
church?
[Pastor Stevens:] Usually at the front. The cords are
usually at the front or in the baptistery changing area in
the back and there are also a couple by the sound system.
[Prosecutor:] And how many microphones and cords were
missing?
[Pastor Stevens:] I know that there [were] three -- three,
maybe four microphones and probably a similar amount of
cords.
[Prosecutor:] Do you know what the value or have an
estimate as to what the value of those items were?
[Pastor Stevens:] We estimated about five hundred dollars.
....
[Prosecutor:] Were you able to recover any of the items that
were taken?
[Pastor Stevens:] No, sir.
[Prosecutor:] Has the church had to replace those items?
[Pastor Stevens:] We have. We replaced the receiver.
Pastor Stevens testified that “we” had the church
service, discovered the missing items, reported this to the
police, estimated the value of the items, and replaced the
receiver. He does not state who is included in the term
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Opinion of the Court
“we,” although from context he seems to be referring to the
entire congregation in regard to having the church service,
to himself and the “sound man” in regard to discovering the
missing items, and probably to himself and various other
persons as to the estimation of value and the replacement
of the receiver. In any event, he never identifies any sort
of special property interest in the items stolen and he
clearly identifies himself as an employee of Manna Baptist
Church.
Based upon our Supreme Court’s opinion in this case
on discretionary review, Manna Baptist Church was an
entity capable of owning property. Campbell, 368 N.C. at
__, 772 S.E.2d at 444 (“[W]e hold that alleging ownership
of property in an entity identified as a church or other place
of religious worship, like identifying an entity as a
“company” or “incorporated,” signifies an entity capable of
owning property, and the line of cases from the Court of
Appeals that has held otherwise is overruled.”). The
evidence showed that Manna Baptist Church owned the
property, but no evidence suggests that Pastor Stevens
individually had any sort of ownership interest in the
property. Additionally, the fact that Pastor Stevens is an
employee of Manna Baptist Church, the true owner of the
property, does not cure the fatal variance. In State v.
Greene, our Supreme Court quoted State v. Jenkins, 78
N.C. 478, 479-80 (1878), in support of the rule that an
employee in possession of property on behalf of the
employer does not have a sufficient ownership interest in
the property:
“The property in the goods stolen must be laid to be either
in him who has the general property or in him who has
a special property. It must [in] all events be laid to be in
some one [sic] who has a property of some kind in the
article stolen. It is not sufficient to charge it to be the
property of one who is a mere servant, although he may
have had actual possession at the time of the larceny;
because having no property, his possession is the
possession of his master.”
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Opinion of the Court
The Court then gave the following example:
“A is the general owner of a horse; B is the special owner,
having hired or borrowed it, or taken it to keep for a time;
C grooms it and keeps the stable and the key, but is a mere
servant and has no property at all; -- if the horse be stolen,
the property may be laid to be either in A or B; but not in
C although he had the actual possession and the key in his
pocket.” (Emphasis added). State v. Jenkins, supra at
480. Accord, State v. Allen, 103 N.C. 433, 435, 9 S.E. 626,
627 (1889).
Greene, 289 N.C. at 584, 223 S.E.2d at 369 (brackets
omitted). Based upon the example given by our Supreme
Court in Jenkins, Pastor Stevens was in the position of C,
the groom who cared for the horse, while Manna Baptist
Church is in the position of A, the owner. Even if Pastor
Stevens had actual possession of the property, he had no
ownership interest in it. See id., 223 S.E.2d at 369.
In Greene, the indictment alleged that the defendant
stole “one Ford Diesel Tractor and one set of Long Brand
Boggs of one Newland Welborn and Hershel
Greene[.]” Id., 223 S.E.2d at 369 (ellipsis omitted). But the
evidence showed that “Welborn had legal title to the tractor
and that Greene had legal title to the disk boggs and had
loaned them to Welborn, who was using them on his tractor
for his farming.” Id., 223 S.E.2d at 369. The defendant
argued that there was a fatal variance because “alleging a
property interest in both Greene and Welborn
automatically means that the allegation is that they are
joint owners.” Id. at 585, 223 S.E.2d at 370. Our Supreme
Court rejected this argument because the State’s evidence
showed that both alleged owners had either legal title or a
special ownership interest in the property: “Welborn was
the bailee or special owner of the disk boggs, and Greene
had legal title to them.” Id. at 585-86, 223 S.E.2d at 370.
Our Supreme Court also noted that in the indictment, “the
order in which the property was listed corresponded to the
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Opinion of the Court
order that the title holders of the respective pieces of
property were listed”; that is, Welborn owned the tractor,
and Greene owned the disk boggs. Id. at 586, 223 S.E.2d
at 370.
In this case, the State’s evidence did not show that
Pastor Stevens had any special property interest in the
stolen items. As noted above, the evidence showed that
they belonged solely to Manna Baptist Church and Pastor
Stevens dealt with the property only as an employee of the
church. Although both Jenkins and Hill are very old cases,
they have been followed by our courts for many years, and
this Court is not at liberty to disregard them. Based upon
these binding precedents, the State must demonstrate that
both alleged owners have at least some sort of property
interest in the stolen items. In addition, possession by an
employee or servant of the actual owner is not a type of
special property interest which will support this
indictment.
Following Greene and Hill, we hold that a fatal
variance exists because the evidence showed that the
stolen property belonged to the church only. See id. at 584,
223 S.E.2d at 369; Hill, 79 N.C. at 658-59.
III. Conclusion
We . . . . vacate defendant’s conviction for larceny
after breaking or entering. Because the trial court
consolidated these convictions for sentencing, we remand
this case to the trial court for resentencing.
Campbell COA II, __ N.C. App. at __, 777 S.E.2d at 530-34.
IV. Additional Issues
In the interest of judicial economy, we will also address defendant’s two
remaining issues. Defendant contends that (5) insufficient evidence supports his
larceny conviction; and (6) the trial court violated his constitutional right to a
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Opinion of the Court
unanimous jury verdict regarding the larceny charge. Campbell COA II, __ N.C. App.
at __, 777 S.E.2d at 528.
i. (5). Sufficiency of the evidence
“The essential elements of larceny are: (1) the taking of the property of another;
(2) carrying it away; (3) without the owner’s consent; and (4) with the intent to
permanently deprive the owner of the property.” State v. Barbour, 153 N.C. App. 500,
502, 570 S.E.2d 126, 127 (2002). Defendant argues that the trial court erred by
denying his motion to dismiss the larceny charge because the “State failed to present
sufficient evidence that [defendant] took the missing items.”
When ruling on a motion to dismiss for insufficient
evidence, the trial court must consider the evidence in the
light most favorable to the State, drawing all reasonable
inferences in the State’s favor. Any contradictions or
conflicts in the evidence are resolved in favor of the State,
and evidence unfavorable to the State is not considered.
The trial court must decide only whether there is
substantial evidence of each essential element of the
offense charged and of the defendant being the perpetrator
of the offense. Substantial evidence is relevant evidence
that a reasonable mind might accept as adequate to
support a conclusion. When the evidence raises no more
than a suspicion of guilt, a motion to dismiss should be
granted. However, so long as the evidence supports a
reasonable inference of the defendant’s guilt, a motion to
dismiss is properly denied even though the evidence also
permits a reasonable inference of the defendant’s
innocence.
State v. Miller, 363 N.C. 96, 98-99, 678 S.E.2d 592, 594 (2009) (citations and quotation
marks omitted).
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Opinion of the Court
Evidence that raises only a strong suspicion without
producing any incriminating circumstances does not reach
the level of substantial evidence necessary for the denial of
a motion to dismiss. Just as in [a prior case], the most the
State showed was that defendant had been in an area
where he could have committed the crime charged.
State v. Hamilton, 145 N.C. App. 152, 158, 549 S.E.2d 233, 237 (2001) (citations,
quotation marks, and brackets omitted).
The State’s evidence showed that Manna Baptist Church had Wednesday
evening services on 15 August 2012 which ended at about 9:00 pm. The next morning,
the church secretary discovered the church had been left unlocked, and she locked it
before she left. On the next Sunday, 19 August 2012, Pastor Stevens discovered that
some audio equipment was missing from the church. The missing items were 4
microphones, one set of sound system wires, a music receiver, and one pair of
headphones. Some of the computer equipment had been moved around. There were
no signs of forced entry to the church. No fingerprints or DNA evidence were taken
from the computer equipment or the cabinet in which the sound equipment had been
stored. However, one officer found a wallet in the baptistery changing area and
defendant’s license was in the wallet. None of the stolen equipment was ever located,
either outside near the church or through checking with local pawn shops.
Two days later, Detective Jessica Woosley looked up the name on the driver’s
license and discovered that it was defendant and that he was incarcerated in
Cleveland County on an unrelated matter. She met with him at the Cleveland
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STATE V. CAMPBELL
Opinion of the Court
County jail. When he entered the interview room, defendant said, “[T]his can’t
possibly be good. What have [I] done now that I don’t remember?” Detective
Woosley read defendant his Miranda rights, and he asked for an attorney but
continued to speak to her. He saw the name of Manna Baptist Church on a folder
and told her he had been at the church and he had “done some things” that night but
did not recall all of what he had done. He recalled that the door to the church was
open and he went in to get a drink of water.
Defendant’s evidence showed that at the time of the alleged crimes, he was
almost 51 years old and was on two heart medications, a medicine for stress disorder,
a medicine for diabetes, and “high psychotropic drug[s]” for bipolar condition. On the
night of 15 August 2012, defendant had been living with Ms. Deaton. She asked him
to leave, so he left, taking a duffel bag of his clothing which he later “dumped . . . in
a ditch” because it was too heavy. He arrived at a friend’s house at about 10:00 pm,
but around midnight, he was asked to leave that house as well. He left, still walking,
and around 2:00 am he walked down Burke Road and saw Manna Baptist Church.
He testified that he saw a “sliver of light” coming from the church because the door
was not fully closed. He went in to get a drink of water and to pray. He left the
church around dawn. He started to have chest pains and called 911; he met the
ambulance at the Shanghai Fire Department.
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Opinion of the Court
Emergency medical technician Calvin Cobb responded to the call. He testified
that he found defendant sitting on the back of a responding vehicle from the fire
department. He was very sweaty and asked for a ride to town. He told Mr. Cobb he
had been removed from Ms. Deaton’s house and wandered all night. Mr. Cobb
determined that defendant’s medical condition was not critical but he needed medical
care and he was transported to Cleveland Regional Medical Center. Defendant was
not carrying a backpack or duffel bag and he had nothing in his pockets. Defendant’s
evidence neither helps nor hurts the State’s case. At the most, “[i]t simply explains
[defendant’s] presence at the scene[.]” State v. Minor, 290 N.C. 68, 73, 224 S.E.2d
180, 184 (1976).
The State’s evidence shows that defendant entered Manna Baptist Church at
the relevant time and that items were stolen from the church sometime between
Wednesday, 15 August and Sunday, 19 August 2012. The stolen items were never
found. Defendant argues that the State’s case relies entirely upon circumstantial
evidence of defendant’s opportunity to take the items, since the evidence shows only
that he was in the church. The State’s evidence fails to show a motive for defendant
to take the sound equipment. It fails to show how defendant could have carried or
disposed of these rather large items during the night of August 15 while he was
walking down the road. See, e.g., Minor, id. at 75, 224 S.E.2d at 185 (“The most the
State has shown is that defendant had been in an area where he could have
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Opinion of the Court
committed the crimes charged. Beyond that we must sail in a sea of conjecture and
surmise. This we are not permitted to do. The trial judge should have allowed the
motion for judgment as of nonsuit at the close of defendant’s evidence.”).
In Minor, the defendant was convicted of “possession of a controlled substance,
to-wit, marijuana, for the purpose of distribution, and with manufacturing and
growing marijuana.” Id. at 68, 224 S.E.2d at 181. Both Minor and a co-defendant,
Ingram, were charged with various crimes based upon marijuana plants growing in
an isolated corn field. Id. at 68-69, 224 S.E.2d at 181-82. When they were stopped
and arrested near the field, Minor was riding a car owned and driven by Ingram. Id.
at 69, 224 S.E.2d at 182. Police found two guns, some wilted marijuana leaves and
some grains of fertilizer in the car; only Ingram was charged for possession of the
weapons but both defendants were charged regarding the marijuana. Id. Ingram
had secured the consent of the landowner to use the field where the marijuana was
growing. Id. The State’s evidence also showed that Minor had assisted in preparing
the land for “a garden” in the same area. Id. at 70, 224 S.E.2d at 182. The Supreme
Court summarized the evidence against Mr. Minor:
About all our evidence shows is (1) that defendant Minor
had been a visitor at an abandoned house leased or
controlled by co-defendant Ingram; (2) that the marijuana
field was 100 feet away from the house but obscured by a
wooded area; (3) that the marijuana field was accessible by
three different routes; (4) that on the date of Minor’s arrest
he was on the front seat of a Volkswagen automobile owned
and operated by Ingram, where some wilted marijuana
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Opinion of the Court
leaves were found on the left rear floorboard and one
marijuana leaf was found in the trunk.
Id. at 74-75, 224 S.E.2d at 185.
The State seeks to distinguish Minor by arguing that “the facts in this case are
distinguishable from State v. Minor. Minor involved actual or constructive possession
of narcotics.” The State is correct that the defendant in Minor was charged with
possession of narcotics, but that factual difference is not controlling. In Minor, the
State was relying solely upon evidence that the defendant was in a particular place
at a particular time to show he possessed marijuana; here, the State is relying solely
upon evidence that defendant was in Manna Baptist Church during a four-day time
period when the stolen items were taken to show he possessed those items and
removed them. The evidence against the defendant in Minor was stronger than here,
since Mr. Minor was at least in a vehicle where some fresh marijuana was found, and
he was riding with the person with control of the property upon which the marijuana
was growing. Id. at 69, 224 S.E.2d at 182. Here, the State is relying on defendant’s
presence alone to show he took and carried away the sound equipment, since the
“elements of larceny are that defendant (1) took the property of another; (2) carried
it away; (3) without the owner’s consent; and (4) with the intent to permanently
deprive the owner of the property.” State v. Coats, 74 N.C. App. 110, 112, 327 S.E.2d
298, 300 (1985.) Like Minor, the State’s evidence shows that defendant was “in an
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Opinion of the Court
area where he could have committed the crimes charged,” but beyond that, we also
must “sail in a sea of conjecture[.]” Minor, 290 N.C. at 75, 224 S.E.2d at 185.
In Campbell SC I, the Supreme Court held 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 [with intent to commit a larceny therein.]”
Campbell SC I, 368 N.C. at 88, 772 S.E.2d at 444-45. In so concluding, the Supreme
Court explained:
Defendant was charged under N.C.G.S. § 14-54.1(a)
with wrongfully breaking or entering Manna Baptist
Church with intent to commit a larceny therein. To meet
its burden, the State must offer substantial evidence that
defendant broke or entered the building with the requisite
criminal intent. In State v. Bell we explained:
Intent is a mental attitude seldom provable by direct
evidence. It must ordinarily be proved by circumstances
from which it may be inferred. “The intent with which an
accused broke and entered may be found by the jury from
evidence as to what he did within the [building]. . . .
However, the fact that a felony was actually committed
after the [building] was entered is not necessarily proof of
the intent requisite for the crime of [larceny]. It is only
evidence from which such intent at the time of the breaking
and entering may be found. Conversely, actual commission
of the felony . . . is not required in order to sustain a
conviction of [larceny].”
285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974) (second
alteration in original) (citations omitted).
Here evidence showed that defendant unlawfully
broke and entered Manna Baptist Church late at
night. See State v. Sweezy, 291 N.C. 366, 383, 230 S.E.2d
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STATE V. CAMPBELL
Opinion of the Court
524, 535 (1976) (“It is well established that the mere
pushing or pulling open of an unlocked door constitutes a
breaking.”). Defendant did not have permission to be
inside the church and could not remember what he did
while there, and Pastor Stevens found defendant’s wallet
near the place where some of the missing equipment
previously had been stored. Considered in the light most
favorable to the State, this evidence was sufficient to take
the case to the jury on the question of defendant’s intent to
commit larceny when he broke and entered Manna Baptist
Church. Therefore, the trial court properly denied
defendant’s motion to dismiss the breaking or entering
charge for insufficient evidence.
Campbell SC I, 368 N.C. at 87-88, 772 S.E.2d at 444.
Our Supreme Court’s holding in Campbell SC I does not preclude our
conclusion that there was insufficient evidence of larceny, as the Supreme Court’s
holding does not go to the element at question, whether there was sufficient evidence
that defendant took and carried away the property of another -- the sound equipment.
While our determination of this issue is unnecessary since we have concluded that
defendant’s conviction for larceny must be vacated due to a fatal variance between
the indictment and evidence, we note this determination in the alternative and to
resolve the remaining issues in this case.
ii. (6.) Unanimous verdict
Defendant’s last argument is that the trial court erred by instructing the jury
it could find the defendant guilty of larceny if it determined he “took property
belonging to another.” Defendant contends that since he was charged with larceny of
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Opinion of the Court
property belonging to “Andy Stevens and Manna Baptist Church,” the instruction
was disjunctive because the jury could have found
four possible verdicts: 1) guilty of larceny of the property
of Andy Stevens; 2) guilty of larceny of the property
of Manna Baptist Church; 3) guilty of larceny of the
property of both Andy Stevens and Manna Baptist
Church; or 4) guilty of larceny of the property of Andy
Stevens in the view of some jurors, while guilty of larceny
of the property of Manna Baptist Church in the view of
others.
The State simply argues that the instructions were not disjunctive since they
did not identify an alleged owner of the properly taken, but only instructed general
that larceny is taking property of “another.” But Defendant’s argument on a
disjunctive verdict addresses essentially the same problem as his argument above, in
Issue (4), that there was a fatal variance between the evidence presented and the
indictment. We need not address this issue further since we have ruled in defendant’s
favor on Issue (4) and vacated the larceny conviction.
V. Conclusion
We have elected to invoke our discretion under Rule 2 to address defendant’s
arguments regarding fatal variance for the reasons above, and we hold that the trial
court erred in failing to dismiss the larceny charge due to a fatal variance between
the indictment and the evidence presented regarding ownership of the property. We
remand for entry of judgment in accord with this opinion and resentencing solely on
the remaining breaking and entering offense.
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Opinion of the Court
VACATED AND REMANDED.
Judge ARROWOOD concurs.
Judge BERGER dissents in separate opinion.
-2-
No. COA13-1404-3 – State v. Campbell
BERGER, Judge, dissenting in separate opinion.
Because Rule 2 is not a mechanism to right all perceived wrongs, but instead,
a tool to be used only in rare circumstances, there was substantial evidence of
Defendant’s guilt, and Defendant has not demonstrated that the larceny instruction
had a probable impact on the jury’s verdict, I respectfully dissent.
Rule 2 states:
To prevent manifest injustice to a party, or to expedite
decision in the public interest, either court of the appellate
division may, except as otherwise expressly provided by
these rules, suspend or vary the requirements or provisions
of any of these rules in a case pending before it upon
application of a party or upon its own initiative, and may
order proceedings in accordance with its directions.
N.C.R. App. P. 2.
The North Carolina Supreme Court provided straightforward direction for this
Court to conduct a proper assessment of whether we should invoke Rule 2 in this case
to determine if a variance existed between the indictment for larceny after breaking
or entering, and the evidence presented at trial. State v. Campbell, 369 N.C. 599, 799
S.E.2d 600 (2017). In remanding this case, our Supreme Court emphasized Rule 2
should only be utilized “in exceptional circumstances.” Id. at 603, 799 S.E.2d at 602.
(emphasis in original). In determining whether this Court should exercise its
discretion under Rule 2, we were instructed to look at “the specific circumstances of
individual cases and parties,” including, but not limited to, whether substantial
rights are affected, the “gravity of the offense[],” and the penalty imposed. Id. at 603,
STATE V. CAMPBELL
BERGER, J., dissenting
799 S.E.2d at 602-03 (emphasis in original) (citations omitted). Significantly, our
Supreme Court stated that “precedent cannot create an automatic right to review.”
Id. at 603, 799 S.E.2d at 603.
The majority, however, delves into an exhaustive discussion of “Cases
Addressing Rule 2 Review of Fatal Variance Issues,” and bases its decision on the
purported similarities of this case to State v. Gayton-Barbosa, 197 N.C. App. 129, 676
S.E.2d 586 (2009). While the Supreme Court cited Gayton-Barbosa as a case that
engaged in an appropriate Rule 2 analysis, the majority has declined to engage in the
individualized, case-specific analysis directed by Campbell.
The question is not whether a “defendant has presented a viable argument of
a fatal variance and insufficiency of the evidence” as the majority has stated. The
fact that there may be a variance is not determinative. The majority places the cart
before the horse: because there is a variance, we must invoke Rule 2. Under the
majority’s analysis, there would never be a case in which a variance existed and this
Court could decline to exercise its discretion. Such a result seems contrary to the text
of Rule 2, and the Supreme Court’s view of Rule 2 as a rare and exceptional judicial
tool.
In Campbell, the Supreme Court set forth three factors for us to consider when
determining whether or not we should use our discretion and invoke Rule 2: (1)
2
STATE V. CAMPBELL
BERGER, J., dissenting
whether substantial rights are affected, (2) the “gravity of the offense,” and (3) the
penalty imposed. Each of these factors is addressed below.
While a deficient indictment certainly may affect substantial rights of a
defendant, “contemporary criminal pleading requirements have been designed to
remove from our law unnecessary technicalities which tend to obstruct justice.” State
v. Williams, 368 N.C 620, 623, 781 S.E.2d 268, 271 (2016) (citation and quotation
marks omitted).
An indictment must set forth
[a] plain and concise factual statement in each count
which, without allegations of an evidentiary nature,
asserts facts supporting every element of a criminal offense
and the defendant's commission thereof with sufficient
precision clearly to apprise the defendant or defendants of
the conduct which is the subject of the accusation.
N.C. Gen. Stat. § 15A-924(a)(5) (2017). “An indictment . . . is constitutionally
sufficient if it apprises the defendant of the charge against him with enough certainty
to enable him to prepare his defense[,] . . . protect[s] him from subsequent prosecution
for the same offense[, and] . . . enable[s] the court to know what judgment to
pronounce in the event of conviction.” State v. Coker, 312 N.C. 432, 434-35, 323 S.E.2d
343, 346 (1984) (citations omitted). An indictment is “sufficient in form for all intents
and purposes if it express the charge against the defendant in a plain, intelligible,
and explicit manner; and the same shall not be quashed, nor the judgment thereon
stayed, by reason of any informality or refinement, if in the bill or proceeding,
3
STATE V. CAMPBELL
BERGER, J., dissenting
sufficient matter appears to enable the court to proceed to judgment.” N.C. Gen. Stat.
§ 15-153 (2017).
This is not a case in which Defendant is alleging a jurisdictional defect in the
indictment. Further, Defendant has not asserted that the indictment failed to allege
information sufficient to enable him to prepare a defense, or afford him double
jeopardy protection. In essence, Defendant complains that the indictment sets forth
too much information based upon the State’s evidence at trial.
Moreover, “a variance-based challenge is, essentially, a contention that the
evidence is insufficient to support a conviction.” Gayton-Barbosa, 197 N.C. App. at
134, 676 S.E.2d at 590. It is important to note that in Gayton-Barbosa, the case so
heavily relied on by the majority, the defendant was charged with two felony assaults,
felony breaking or entering, felony larceny, first degree kidnapping, and possession
of a firearm by a convicted felon. Id. at 131, 676 S.E.2d at 588. The indictment for
felony larceny incorrectly named the owner of the stolen firearm, but the defendant
failed to adequately preserve the issue for appellate review. This Court stated that
“it is difficult to contemplate a more ‘manifest injustice’ to a convicted defendant than
that which would result from sustaining a conviction that lacked adequate evidentiary
support, particularly when leaving the error in question unaddressed has double
jeopardy implications.” Id. at 135, 676 S.E.2d at 590 (emphasis added).
4
STATE V. CAMPBELL
BERGER, J., dissenting
Here, it is uncontroverted that the larceny indictment alleged ownership of the
stolen property in Manna Baptist Church along with a second purported owner,
Pastor Andy Stevens, while the evidence presented only established ownership in
Manna Baptist Church. Defendant’s complaint over what boils down to an
indictment-related issue involves “less serious defects,” State v Brice, ___ N.C. ___,
___, 806 S.E.2d 32, 36 (2017), and not substantial rights. One could argue it is one of
those “unnecessary technicalities which tend to obstruct justice.” Williams, 368 N.C.
at 623, 781 S.E.2d at 271 (citation and internal quotation marks omitted).
The indictment charging Defendant with larceny after breaking or entering
does not implicate jurisdictional concerns, lack of adequate notice, or double jeopardy
exposure. The evidence at trial showed that a purported owner listed in the
indictment was the actual owner of the property stolen. Defendant’s substantial
rights were not affected, thus the invocation of Rule 2 is not warranted based on this
factor.
Similarly, the second and third factors do not support a Rule 2 review by this
Court. After a Cleveland County jury found Defendant guilty of breaking or entering
a house of worship and larceny after breaking or entering, the trial court consolidated
the charges for judgment, and Defendant was sentenced to a presumptive-range
sentence that included special probation. Larceny-related offenses cause serious,
negative impacts to our communities, and a single felony conviction can be
5
STATE V. CAMPBELL
BERGER, J., dissenting
detrimental for defendants. However, it cannot be said that the “gravity” of this
offense and the punishment involved are such that we should suspend appellate
rules. Therefore, pursuant to the facts and circumstances of this case, I would not
employ Rule 2 to suspend the appellate rules in order to reach the merits of this case.
Additional Issues
The majority finds that the trial court erred in denying Defendant’s motion to
dismiss and in instructing the jury. Both arguments involve the larceny after
breaking or entering conviction. I respectfully disagree on both issues.
Evidence presented at trial tended to show that Pastor Andy Stevens arrived
at Manna Baptist Church on the morning of August 19, 2012. At the end of service
that day, he noticed some of the sound equipment was missing. Stevens estimated
the value of the equipment was approximately $500.00. While looking through the
building, a wallet was located with various sound equipment near the front of the
church. The wallet contained Defendant’s social security card and North Carolina
driver’s license. The incident was investigated by the Cleveland County Sheriff’s
Department.
Defendant was incarcerated in the Cleveland County Detention Center on an
unrelated charge at the time the initial report was received by the detective division.
Detective Jessica Woosley went to the jail to interview Defendant, and as he was
being escorted to meet the detective, Defendant stated, “[T]his can’t possibly be good.
6
STATE V. CAMPBELL
BERGER, J., dissenting
What have [I] done now that I don’t remember?” Detective Woosley read Defendant
his Miranda rights, and he requested an attorney. Detective Woosley ceased
questioning, but Defendant pointed to her “Manna Baptist Church” case file that was
on the desk, and stated that he remembered being there while on a spiritual journey,
but could not remember what had taken place.
Defendant testified at trial that he entered Manna Baptist Church on the night
the incident occurred and took a bottle of water. Defendant admitted that he had a
black duffle bag with him that night, but he dumped the duffle bag in a ditch because
it was “too heavy and just too cumbersome . . . to carry all the way to where [he] was
going.”
A Cleveland County jury found Defendant guilty of breaking or entering a
house of worship and larceny pursuant to breaking or entering. As stated above,
Defendant received a sentence of Special Probation.
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. J. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).
“ ‘Upon defendant’s motion for dismissal, the question for the Court is whether there
is substantial evidence (1) of each essential element of the offense charged, or of a
lesser offense included therein, and (2) of defendant’s being the perpetrator of such
offense. If so, the motion is properly denied.’ ” State v. Fritsch, 351 N.C. 373, 378,
526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 913, 918
7
STATE V. CAMPBELL
BERGER, J., dissenting
(1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” State v. L. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)
(citations omitted). “In making its determination, the trial court must consider all
evidence admitted, whether competent or incompetent, in the light most favorable to
the State, giving the State the benefit of every reasonable inference and resolving any
contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223
(1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995) (citation omitted).
Circumstantial evidence may withstand a motion to
dismiss and support a conviction even when the evidence
does not rule out every hypothesis of innocence. If the
evidence presented is circumstantial, the court must
consider whether a reasonable inference of defendant’s
guilt may be drawn from the circumstances. Once the court
decides that a reasonable inference of defendant’s guilt
may be drawn from the circumstances, then it is for the
jury to decide whether the facts, taken singly or in
combination, satisfy it beyond a reasonable doubt that the
defendant is actually guilty.
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citations, quotation marks, and brackets
omitted).
A defendant may be properly convicted of larceny where the evidence
establishes that the defendant has taken the property of another, carried it away,
without consent of the owner, and with the intent to deprive the owner of the property
permanently. State v. Barbour, 153 N.C. App. 500, 502, 570 S.E.2d 126, 127 (2002)
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STATE V. CAMPBELL
BERGER, J., dissenting
(citation omitted). When viewed in the light most favorable to the state, there was
substantial evidence that Defendant committed larceny pursuant to breaking or
entering Manna Baptist Church. Defendant admitted he was in the church at or near
the time the property was stolen, and could not recall what had taken place while he
was there. Further, the jury could reasonably infer that he left either in haste, or
while preoccupied, because his wallet was found in the church in an area where some
of the sound equipment was located. Also, Defendant admitted to abandoning a duffle
bag around the time the incident occurred because it was too heavy and too
cumbersome. This circumstantial evidence, together with Defendant’s statements at
the jail facility that “this can’t possibly be good” and “[w]hat have [I] done now that I
don’t remember,” allowed the trial court to determine that there was in fact a
reasonable inference of Defendant’s guilt, and it was for the jury to determine if
Defendant was guilty. Thus, I would find no error as there was sufficient evidence of
larceny.
Finally, Defendant asserts that the trial court’s disjunctive instruction was
erroneous because it violated jury unanimity. The majority declines to address this
argument, stating that “Defendant’s argument on a disjunctive verdict addresses
essentially the same problem as his argument . . . that there was a fatal variance[.]”
While I agree with this statement, I disagree with the result.
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STATE V. CAMPBELL
BERGER, J., dissenting
“A party may not make any portion of the jury charge or omission therefrom
the basis of an issue presented on appeal unless the party objects thereto before the
jury retires to consider its verdict, stating distinctly that to which objection is made
and the grounds of the objection . . . .” N.C.R. App. P. 10(a)(2). “To have an alleged
error reviewed under the plain error standard, the defendant must specifically and
distinctly contend that the alleged error constitutes plain error.” State v. Lawrence,
365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012) (citation and quotation marks omitted).
See also State v. Boyd, 222 N.C. App 160, 730 S.E.2d 193 (2012), rev’d for the reasons
stated in the dissenting opinion, 366 N.C. 548, 742 S.E.2d 798 (2013) (per curiam)
(plain error review applies to an unpreserved error concerning a jury instruction for
which there was no evidence).
To establish plain error,
a defendant must demonstrate that a fundamental error
occurred at trial. To show that an error was fundamental,
a defendant must establish prejudice―that, after
examination of the entire record, the error had a probable
impact on the jury's finding that the defendant was guilty.
Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (citation and quotation marks omitted).
Defendant here has not argued prejudice, and cannot establish prejudice.
The trial court instructed the jury that in order to find Defendant guilty of
felony larceny,
the State must prove six things beyond a reasonable doubt.
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STATE V. CAMPBELL
BERGER, J., dissenting
First, that the defendant took property belonging to
another;
Second, that the defendant carried away the
property;
Third, that the victim did not consent to the taking
and carrying away of the property;
Fourth, that at the time of the taking, the defendant
intended to deprive the victim of its use permanently;
Fifth, that the defendant knew he was not entitled
to take the property;
And sixth, that the property was taken from a
building after a breaking or entering.
If you find from the evidence beyond a reasonable
doubt that on or about the alleged date the defendant took
and carried away another person’s property without the
victim’s consent from the building after a breaking or
entering – and in this case, [] an entry -- knowing that he
was not entitled to take it and intending at the time of the
taking to deprive the victim of its use permanently, it
would be your duty to return a verdict of guilt.
If you do not so find or if you have a reasonable doubt
as to one or more of these things, it would be your duty to
return a verdict of not guilty.
(Emphasis added).
Even if we assume there was an error in the instruction, Defendant has not
and cannot demonstrate “that, absent the error, the jury probably would have
returned a different verdict. . . . In addition, the error in no way seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Lawrence, 365 N.C.
at 519, 723 S.E.2d at 335. The inclusion of ‘Andy Stevens’ in the indictment along
with the purported error in jury instructions, “under the facts of this particular case,
make no difference at all in the result.” Boyd, 222 N.C. App at 173, 730 S.E.2d at
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STATE V. CAMPBELL
BERGER, J., dissenting
201. Manna Baptist Church was listed on the indictment, and the evidence at trial
showed it was the owner of the property.
Conclusion
For the reasons stated herein, Rule 2 is a tool to be used only in rare
circumstances, and should not be invoked in this case. Furthermore, there was
substantial evidence of Defendant’s guilt, and Defendant has failed to demonstrate
that the larceny instruction had a probable impact on the jury’s verdict. Defendant
received a fair trial free from prejudicial error, and the jury’s verdict should be
upheld.
12