              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-305

                              Filed: 19 February 2019

Macon County, No. 15 CRS 50703

STATE OF NORTH CAROLINA

             v.

ADAM WARREN CONLEY


      Appeal by defendant from judgment entered 16 August 2017 by Judge Robert

T. Sumner in Macon County Superior Court. Heard in the Court of Appeals 13

November 2018.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General John R.
      Green, Jr., for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Emily
      Holmes Davis, for defendant-appellant.


      BRYANT, Judge.


      Where defendant Adam Warren Conley failed to present his constitutional

double jeopardy argument before the trial court, it was not properly preserved for our

review. Accordingly, we dismiss the constitutional argument defendant presents on

appeal. However, where the trial court entered a sentence in excess of statutory

authority, we reverse and remand the matter for resentencing on the offenses of

possession of a gun on educational property.
                                  STATE V. CONLEY

                                  Opinion of the Court



      On 29 June 2015, a Macon County grand jury issued an indictment which

contained eleven offenses against defendant: attempted murder, discharge of a

firearm on educational property, six counts of possession of a firearm on educational

property, assault by pointing a gun, cruelty to animals, and possession of firearms in

violation of a DVPO. The matter came on for trial before a jury during the 7 August

2017 session of Macon County Superior Court, the Honorable Robert T. Sumner,

Judge presiding.

      The evidence at trial tended to show that on 4 June 2015 at 4:40 a.m., a

resident who lived on Union School Road heard several gunshots. Shortly thereafter,

the resident observed two people walking down his driveway toward Union School

Road. Law enforcement officers responded to the resident’s address and searched the

area, but no person, gun, bullets, or shell casings were found.

      At 5:00 a.m. that same morning, Alice Bradley was at South Macon

Elementary School to prepare her school bus for the morning route. Using her car,

Bradley picked up her sister who was parked in the teacher’s lot and drove to the

school building, where they turned on inside lights and conducted a safety check. At

5:15 a.m., Bradley drove back to her school bus, parked, and noted the presence of

two people in the parking lot about twenty yards away. Bradley later identified the

two people as defendant and Kathryn Jeter. Defendant pointed a silver handgun at




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                                  Opinion of the Court



Bradley before he headed toward the athletic field. Bradley boarded her school bus

and radioed the bus garage to request a deputy sheriff.

      At 5:20 a.m., Sheriff Deputy Audrey Parrish with the Macon County Sheriff’s

Department responded to South Macon Elementary in response to a 9-1-1 call. When

Deputy Parrish encountered defendant and Jeter, she directed them to stop walking

away, to turn, and walk toward her. About fifty yards away from Deputy Parrish,

defendant turned, raised a “large silver [handgun],” and pointed it at Deputy Parrish.

Deputy Parrish testified that it was very quiet; she heard the handgun trigger “snap”;

but the gun did not fire. Deputy Parrish retreated to her vehicle, where she radioed

for assistance. By 5:30 a.m., several sheriff’s deputies had responded to the school

and engaged defendant. When defendant was taken into custody, law enforcement

officers observed “a large silver gun” and a smaller “Derringer, pocket-style [gun]” on

the ground. And in addition to the firearms on the ground, “[defendant] had two

guns, one on each side on his waist and holsters, as well as other [large] knives . . .

on his person that we could see sticking out of his boot . . . .”      Moreover, law

enforcement officers located defendant’s tote bag on Bradley’s school bus. Bradley

mentioned that the bag was not there when she walked through the bus at 5:00 a.m.,

before she and her sister entered the school building. The bag contained a pistol.

      At the close of the State’s evidence, the trial court dismissed the charge of

discharge of a firearm on educational property and violation of the DVPO. Defendant



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                                 Opinion of the Court



did not present any evidence. The jury returned guilty verdicts against defendant on

the charges of attempted first-degree murder, five counts of possession of a gun on

educational property, possession of knives on educational property, and assault by

pointing a gun. The trial court entered judgments in accordance with the jury

verdicts. For attempted first-degree murder, defendant was sentenced to an active

term of 170 to 216 months. In a consolidated judgment for three counts of possession

of a gun on educational property, defendant was sentenced to an active term of 6 to

17 months to be served consecutive to the sentence for attempted first-degree murder.

In a separate consolidated judgment for two counts of possession of a gun on

educational property, one count of weapons on educational property, assault by

pointing a gun, and cruelty to animals, defendant was again sentenced to 6 to 17

months to be served consecutive to the judgment for three counts of possession of a

gun on educational property; however, this sentence was suspended.        The court

ordered that for this judgment, following his release from incarceration, defendant

was to be placed on supervised probation for a 24-month period. Defendant appeals.

                    _________________________________________

      On appeal, defendant argues that the trial court erred by entering judgments

on five counts of possession of a gun on educational property. Defendant contends

that constitutional protections against double jeopardy guard against entry of




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                                   Opinion of the Court



judgment on more than one count of the offense of simultaneous possession of “any

gun” on educational property. We dismiss this issue.

      Defendant acknowledges that his constitutional challenge to the entry of

judgments against him was not presented before the trial court. Pursuant to our

Rules of Appellate Procedure, “[i]n order to preserve an issue for appellate review, a

party must have presented to the trial court a timely request, objection, or motion . .

. .” N.C.R. App. P. 10(a)(1) (2018). “It is a well established rule of [our appellate

courts] that [we] will not decide a constitutional question which was not raised or

considered in the court below.” Bland v. City of Wilmington, 278 N.C. 657, 660, 180

S.E.2d 813, 816 (1971) (citation omitted); see State v. Gainey, 355 N.C. 73, 87, 558

S.E.2d 463, 473 (2002) (“Constitutional issues not raised and passed upon at trial will

not be considered for the first time on appeal.” (citing State v. Benson, 323 N.C. 318,

322, 372 S.E.2d 517, 519 (1988)); see also State v. Davis, 364 N.C. 297, 301, 698 S.E.2d

65, 67 (2010) (holding that to the extent the defendant relies on an unpreserved

constitutional double jeopardy argument, the argument would not be addressed);

State v. Madric, 328 N.C. 223, 231, 400 S.E.2d 31, 36 (1991) (same); State v. Mitchell,

317 N.C. 661, 670, 346 S.E.2d 458, 463 (1986) (same). In order to reach the merits of

his argument, defendant asks that we invoke Rule 2 of our Rules of Appellate

Procedure in order to suspend the Rules of Appellate Procedure.




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                                    Opinion of the Court



      Pursuant to Rule 2, “[t]o prevent manifest injustice to a party, or to expedite

decision in the public interest, either court of the appellate division may . . . suspend

or vary the requirements or provisions of any of the[] [appellate] rules in a case

pending before it . . . .” N.C.R. App. P. 2 (2017).

             Rule 2 must be applied cautiously. . . . “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.”
             [Steingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298,
             299–300 (1999)] (citing Blumenthal v. Lynch, 315 N.C. 571,
             578, 340 S.E.2d 358, 362 (1986)).

             ....

             Before exercising Rule 2[,] . . . the Court of Appeals must
             be cognizant of the appropriate circumstances in which the
             extraordinary step of suspending the operation of the
             appellate rules is a viable option. Fundamental fairness
             and the predictable operation of the courts for which our
             Rules of Appellate Procedure were designed depend upon
             the consistent exercise of this authority.

State v. Hart, 361 N.C. 309, 315–17, 644 S.E.2d 201, 205–06 (2007). “Appellate Rule

2 has most consistently been invoked to prevent manifest injustice in criminal cases

in which substantial rights of a defendant are affected.” State v. Spencer, 187 N.C.

App. 605, 612, 654 S.E.2d 69, 73 (2007) (citation omitted) (invoking Rule 2 to reach

the merits of the defendant’s argument where defendant was erroneously convicted

of both larceny and possession of the same stolen property).


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                                  STATE V. CONLEY

                                  Opinion of the Court



                     This assessment—whether a particular case is one
             of the rare “instances” appropriate for Rule 2 review—must
             necessarily be made in light of the specific circumstances of
             individual cases and parties, such as whether “substantial
             rights of an appellant are affected.” State v. Hart, 361 N.C.
             309, 316, 644 S.E.2d 201, 205 (2007) (citing, inter alia,
             State v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837
             (1984) (per curiam) (“In view of the gravity of the offenses
             for which defendant was tried and the penalty of death
             which was imposed, we choose to exercise our supervisory
             powers under Rule 2 of the Rules of Appellate Procedure
             and, in the interest of justice, vacate the judgments entered
             and order a new trial.”) (emphasis added)). In simple
             terms, precedent cannot create an automatic right to
             review via Rule 2. Instead, whether an appellant has
             demonstrated that his matter is the rare case meriting
             suspension of our appellate rules is always a discretionary
             determination to be made on a case-by-case basis. See
             [Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362
             N.C. 191, 196, 657 S.E.2d 361, 364 (2008)]; [Hart, 361 N.C.
             309, 315–17, 644 S.E.2d 201, 204-06 [2007]; Steingress, 350
             N.C. at 66, 511 S.E.2d at 299–300.

State v. Campbell, 369 N.C. 599, 603, 799 S.E.2d 600, 602–03 (2017); see also State v.

Miller, 245 N.C. App. 313, 315–16, 782 S.E.2d 328, 330 (declining to invoke Rule 2 to

reach the merits of the defendant’s unpreserved constitutional double jeopardy

argument), review denied, ___ N.C. ___, 787 S.E.2d 40 (2016); State v. Rawlings, 236

N.C. App. 437, 443–44, 762 S.E.2d 909, 914–15 (2014) (same).

      Here, the trial court entered judgments against defendant for the offenses of

attempted first-degree murder, five counts of possession of a gun on educational

property, one count of weapons on educational property, assault by pointing a gun,

and cruelty to animals. The offenses were consolidated into three judgments, each


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                                  STATE V. CONLEY

                                 Opinion of the Court



committing defendant to an active term to be served consecutively: 170 to 216 months

for attempted first-degree murder; 6 to 17 months for three counts of possession of a

gun on educational property; and 6 to 17 months for two counts of possession of a gun

on educational property, one count of weapons on educational property, assault by

pointing a gun, and cruelty to animals. However, the court suspended the 6 to 17

month active sentence imposed in the judgment entered on two counts of possession

of a gun on educational property, one count of weapons on educational property,

assault by pointing a gun, and cruelty to animals, instead placing defendant on

supervised probation for a period of 24 months. The offenses of possession of a

weapon on educational property and cruelty to animals are each Class 1

misdemeanors. N.C. Gen. Stat. §§ 14-269.2(d), -360(a) (2017). The offense of assault

by pointing a gun is a Class A1 misdemeanor. Id. § 14-34. A conviction for a Class

A1 misdemeanor authorizes a trial court to impose on a defendant with a Level III

prior record level (such as defendant’s misdemeanor prior record level, here) a term

of 1 to 150 days of community, intermediate, or active punishment, id. § 15A-

1340.23(c), and authority to suspend that sentence and place defendant on supervised

probation for a period of up to 24 months, id. § 15A-1343.2(d)(2). Thus, even if we

presume error in entering judgment on multiple counts of possession of a gun on

educational property, defendant’s current sentence is within the range of sentences

authorized.



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                                   STATE V. CONLEY

                                  Opinion of the Court



      Where defendant failed to raise his constitutional double jeopardy argument

before the trial court and thus failed to preserve it for our review and where—even

presuming error in the judgment and remand for resentencing—the sentence

currently imposed would be within the sentence range intended by our legislature

and authorized by our General Statutes, we do not believe the circumstances of this

case so impact defendant’s substantial rights or present such an exceptional

circumstance, see Campbell, 369 N.C. at 603, 799 S.E.2d at 602, an issue of public

interest, or manifest injustice to merit the suspension of our Rules of Appellate

Procedure pursuant to Rule 2. N.C.R. App. P. 2. Accordingly, we dismiss this

argument.

      Apart from his double jeopardy argument, defendant asks whether section 14-

269.2(b) permits entry of multiple convictions for the simultaneous possession of

multiple guns and further contends that the State’s evidence only supported entry of

one conviction.

                     It is well established that “when a trial court acts
             contrary to a statutory mandate and a defendant is
             prejudiced thereby, the right to appeal the court’s action is
             preserved, notwithstanding defendant’s failure to object at
             trial.” State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659
             (1985) (citing State v. Bryant, 189 N.C. 112, 126 S.E. 107
             (1925)); see also [State v. Tirado, 358 N.C. 551, 571, 599
             S.E.2d 515, 529 (2004)] (finding waiver of the
             constitutional argument that the defendant was denied a
             fair and impartial jury, but addressing the interrelated
             contention that the trial court violated its statutory duty to
             ensure a randomly selected jury).


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                                    STATE V. CONLEY

                                   Opinion of the Court




State v. Davis, 364 N.C. 297, 301–02, 698 S.E.2d 65, 67–68 (2010); see also N.C. Gen.

Stat. § 15A-1446(d)(18) (2017) (preserving for appellate review asserted errors

occurring where “[t]he sentence imposed was unauthorized at the time imposed,

exceeded the maximum authorized by law, was illegally imposed, or is otherwise

invalid as a matter of law” “even though no objection, exception or motion has been

made in the trial division”); State v. Meadows, No. 400PA17, slip. op. *7–8 (N.C. Dec.

7, 2018).

      In support of his argument that the “any gun” language of General Statutes,

section 14-269.2(b), only permits entry of one conviction for possession of a gun on

educational property, defendant cites State v. Garris, 191 N.C. App. 276, 663 S.E.2d

340 (2008). In Garris, the Court addressed whether the “any firearm” language of

section 14-415.1 (prohibiting possession of a firearm by a felon) precluded entry of

multiple convictions for possession of a firearm by a felon though several weapons

were possessed simultaneously. Id. at 282–85, 663 S.E.2d at 346–48. At the time a

matter of first impression, the Court observed that the statutory language “any

firearm” was

               ambiguous in that it could be construed as referring to a
               single firearm or multiple firearms. If construed as any
               single firearm, [section 14-415.1] would allow for multiple
               convictions for possession if multiple firearms were
               possessed, even if they were possessed simultaneously.
               Alternatively, if construed as any group of firearms, the
               statute would allow for only one conviction where multiple


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                                   Opinion of the Court



              firearms were possessed simultaneously.

Id. at 283, 663 S.E.2d at 346. Having looked to federal law, this Court wrote “[t]he

United States Supreme Court holds that ambiguity in the statute should be resolved

in favor of lenity, and doubt must be resolved against turning a single transaction

into multiple offenses.” Id. at 283–84, 663 S.E.2d at 347 (citing Bell v. United States,

349 U.S. 81, 83–84, 99 L. Ed. 905, 910–11 (1955))); see also United States v. Dunford,

148 F.3d 385, 389–90 (4th Cir.1998) (holding that six firearms simultaneously seized

from a defendant’s home only supported one conviction under 18 U.S.C. § 922(g)

(prohibiting the possession of “any firearm” by a person coming within an enumerated

category)).   Moreover, within the jurisprudence of this State, “[i]n construing a

criminal statute, the presumption is against multiple punishments in the absence of

a contrary legislative intent.” Garris, 191 N.C. App. at 284, 663 S.E.2d at 347 (citing

State v. Boykin, 78 N.C. App. 572, 576–77, 337 S.E.2d 678, 681 (1985) (holding that

N.C. Gen. Stat. § 14-72(b)(4) (larceny of a firearm) did not intend to create a separate

unit of prosecution for each firearm stolen or allow multiple punishments for the theft

of multiple firearms)).

      As in Garris, we hold that the language of section 14-269.2(b) describing the

offense of “knowingly . . . possess[ing] or carry[ing], whether openly or concealed, any

gun, rifle, pistol, or other firearm of any kind on educational property,” N.C.G.S. § 14-

269.2(b), is ambiguous as to whether multiple punishments for the simultaneous



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                                  Opinion of the Court



possession of multiple firearms is authorized.       And consistent with this Court’s

application of the rule of lenity, also as applied in Garris, we hold that section 14-

269.2(b) does not allow multiple punishments for the simultaneous possession of

multiple firearms on educational property. Accordingly, we reverse and remand this

matter to the trial court for resentencing of the judgments entered on the offenses of

possession of a gun on educational property.

      REVERSED AND REMANDED.

      Judges DILLON and ZACHARY concur.




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