               IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 252PA14-2

                                 Filed 9 June 2017

STATE OF NORTH CAROLINA

              v.

THOMAS CRAIG CAMPBELL


      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 777 S.E.2d 525 (2015), finding no error in

part, but vacating in part and remanding a judgment entered on 12 June 2013 by

Judge Linwood O. Foust in Superior Court, Cleveland County, after the Supreme

Court of North Carolina reversed and remanded the Court of Appeals’ prior decision

in this case, State v. Campbell, 234 N.C. App. 551, 759 S.E.2d 380 (2014). Heard in

the Supreme Court on 20 March 2017.


      Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney
      General, for the State-appellant.

      Glenn Gerding, Appellate Defender, by Hannah Hall Love, Assistant Appellate
      Defender, for defendant-appellee.


      MORGAN, Justice.

      This is the second time that this case has made its way to this Court, and yet

our resolution of the present appeal does not represent a final ruling on the merits.

Instead, for the reasons discussed herein, we reverse and remand this case to the

Court of Appeals for an independent assessment of whether that court need and
                                 STATE V. CAMPBELL

                                  Opinion of the Court



should invoke its discretion under Rule 2 of the North Carolina Rules of Appellate

Procedure in order to reach the merits of one of defendant’s substantive issues on

appeal.

      In light of the several previous opinions from this Court and the Court of

Appeals in this matter, we will not recount the factual background of this case in

detail. The evidence at trial tended to show the following: Overnight on 15 August

2012, certain sound equipment disappeared from Manna Baptist Church in Shelby,

North Carolina, and defendant’s wallet was found in the area of the church near

where some of the missing equipment was kept. Defendant testified that, in the

throes of a personal crisis, he entered the unlocked church seeking comfort and

sanctuary, spent the night there praying and sleeping, and left the following morning

without taking anything except some water. After defendant left the church, he

experienced symptoms that led him to believe he was having a heart attack, so he

called for emergency services.     The emergency medical technician (EMT) who

responded to defendant’s call for help testified that defendant did not have any sound

equipment with him when the EMT arrived.                 Nonetheless, defendant was

subsequently indicted for (1) breaking or entering a place of religious worship with

intent to commit a larceny therein and (2) larceny after breaking or entering.

      The procedural history of this case warrants lengthier review. The matter

came on for trial at the 10 June 2013 session of Superior Court, Cleveland County,

the Honorable Linwood O. Foust, Judge presiding. Defendant moved to dismiss the


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                                   Opinion of the Court



charges against him at the close of the State’s evidence and again at the close of all

the evidence.   The trial court denied each motion, and the jury returned guilty

verdicts on both charges. Defendant appealed, making six arguments of error. The

Court of Appeals addressed only two of defendant’s contentions, but vacated his

larceny conviction and reversed his conviction for breaking or entering. See State v.

Campbell, 234 N.C. App. 551, 759 S.E.2d 380 (2014), rev’d and remanded, 368 N.C.

83, 772 S.E.2d 440 (2015). The bases for the Court of Appeals’ holdings were its

determinations that: (1) when a larceny “indictment alleges multiple owners, one of

whom is not a natural person, failure to allege that such an owner has the ability to

own property is fatal to the indictment,” such that the larceny indictment was “fatally

flawed” for failing to “allege that Manna Baptist Church is a legal entity capable of

owning property;” and (2) the State presented insufficient evidence of an essential

element of felony breaking or entering a place of worship, to wit: intent to commit

larceny. Id. at 555-56, 759 S.E.2d at 384. This Court allowed the State’s first petition

for discretionary review. See State v. Campbell, 367 N.C. 792, 766 S.E.2d 635 (2014).

      In that initial appeal, this Court held

             that the larceny indictment alleging ownership of stolen
             property of Manna Baptist Church sufficiently alleged
             ownership in a legal entity capable of owning property[,]
             . . . . that the State presented sufficient evidence of
             defendant’s criminal intent to sustain a conviction for
             felony breaking or entering a place of religious worship,
             and [thus] the trial court properly denied defendant’s
             motions to dismiss.



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                                     Opinion of the Court



State v. Campbell, 368 N.C. 83, 88, 772 S.E.2d 440, 444-45 (2015). Accordingly, we

reversed the decision below and remanded the case to the Court of Appeals for

consideration of defendant’s four remaining issues on appeal. Id. at 88, 772 S.E.2d

at 445.

       Defendant’s remaining issues were that

              he was deprived of effective assistance of counsel, because
              his counsel failed to object to the admission of evidence that
              defendant had committed a separate breaking or entering
              offense; [that] the trial court erred in failing to dismiss the
              larceny charge due to a fatal variance as to the ownership
              of the property; [that] insufficient evidence supports his
              larceny conviction; and [that] the trial court violated his
              constitutional right to a unanimous jury verdict with
              respect to the larceny charge.

See State v. Campbell, ___ N.C. App. ___, 777 S.E.2d 525, 528 (2015) (Campbell II).

The court found “that the trial court committed no error in convicting defendant of

breaking or entering a place of religious worship with intent to commit a larceny

therein[,]” id. at ___, 777 S.E.2d at 534.         After rejecting defendant’s ineffective

assistance of counsel claim, the court turned to defendant’s contention that a fatal

variance existed between the allegations in the indictment and the evidence at trial

regarding who owned the sound equipment that was stolen.1

       The Court of Appeals first observed that, because his trial counsel had failed



       1 As has already been discussed, defendant previously raised, and this Court rejected,
a different challenge to the larceny indictment, to wit: whether that indictment sufficiently
alleged ownership in a legal entity capable of owning property. For clarity, we refer to the
current challenge to the larceny indictment as the “fatal variance” issue or argument.

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                                    Opinion of the Court



to raise the fatal variance issue in the trial court, defendant sought review under

North Carolina Rule of Appellate Procedure 2.              Id. at ___, 777 S.E.2d at 530.

Ordinarily, “to preserve an issue for appellate review, a party must have presented

to the trial court a timely request, objection or motion, stating the specific grounds

for the ruling the party desired the court to make if the specific grounds were not

apparent from the context.” N.C. R. App. P. 10(a)(1). Nevertheless, “[t]o prevent

manifest injustice to a party . . . either court of the appellate division may . . . suspend

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

before it.” Id. at R. 2. The court in Campbell II noted that a previous panel of that

court had “invoked Rule 2 to review a similar fatal variance argument and held that

this type of error is ‘sufficiently serious to justify the exercise of our authority under

[Rule 2].’ ” Campbell, ___ N.C. App. at ___, 777 S.E.2d at 530 (alteration in original)

(quoting State v. Gayton – Barbosa, 197 N.C. App. 129, 134, 676 S.E.2d 586, 590

(2009), appeal denied sub nom. Gayton – Barbosa v. Sapper, No. 5:10-HC - 2218 BO,

2012 WL 174 299 (E.D.N.C. Jan. 20. 2012)). Without further discussion or analysis

regarding Rule 2, the court then addressed the merits of defendant’s argument,

determining that a fatal variance indeed existed between the indictment—which

alleged the stolen sound equipment was owned by both the church and its pastor—

and the evidence at trial—which showed that the equipment belonged to the church

alone. Id. at ___, 777 S.E.2d at 534. Accordingly, the court vacated defendant’s




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                                     Opinion of the Court



larceny conviction.2 The State again petitioned this Court for discretionary review,

and on 9 June 2016, the State’s petition was allowed “only as to whether the Court of

Appeals erred in invoking Rule 2 of the North Carolina Rules of Appellate Procedure

under the circumstances of this case.” See State v. Campbell, 368 N.C. 904, 794

S.E.2d 800 (2016).

       As this Court has repeatedly stated, “Rule 2 relates to the residual power of

our appellate courts to consider, in exceptional circumstances, significant issues of

importance in the public interest or to prevent injustice which appears manifest to

the Court and only in such instances.” Steingress v. Steingress, 350 N.C. 64, 66, 511

S.E.2d 298, 299-300 (1999) (citing Blumenthal v. Lynch, 315 N.C. 571, 578, 340 S.E.2d

358, 362 (1986)) (emphases added); see also Dogwood Dev. & Mgmt. Co. v. White Oak

Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008). This assessment—

whether a particular case is one of the rare “instances” appropriate for Rule 2

review—must necessarily be made in light of the specific circumstances of individual

cases and parties, such as whether “substantial rights of an appellant are affected.”

State v. Hart, 361 N.C. 309, 316, 644 S.E.2d 201, 205 (2007) (citing, inter alia, State

v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984) (per curiam) (“In view of

the gravity of the offenses for which defendant was tried and the penalty of death which

was imposed, we choose to exercise our supervisory powers under Rule 2 of the Rules



       2 In light of this result, the court did not address defendant’s final two arguments of
error in connection with the larceny conviction. Id. at ___, 777 S..2d at 534.

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                                      Opinion of the Court



of Appellate Procedure and, in the interest of justice, vacate the judgments entered

and order a new trial.” (emphasis added)). In simple terms, precedent cannot create

an automatic right to review via Rule 2.             Instead, whether an appellant has

demonstrated that his matter is the rare case meriting suspension of our appellate

rules is always a discretionary determination to be made on a case-by-case basis.3

See Dogwood Dev. & Mgmt. Co., 362 N.C. at 196, 657 S.E.2d at 364; Hart, 361 N.C.

at 315-17, 644 S.E.2d at 204-06; Steingress, 350 N.C. at 66, 511 S.E.2d at 299-300.

       Here, the Court of Appeals did not reach the merits of defendant’s fatal

variance argument after an independent determination of whether the specific

circumstances of defendant’s case warranted invocation of Rule 2, but rather, based

upon a belief that “this type of error” automatically entitles an appellant to review

via Rule 2. See Campbell, ___ N.C. App. at ___, 777 S.E.2d at 530. The court thus

acted under the erroneous belief that, because defendant presented a fatal variance

argument, the court lacked the ability to act otherwise than to reach the merits of

defendant’s contention. In doing so, the lower court failed to recognize its discretion

to refrain from undertaking such a review if it so chose. Because the Court of Appeals

proceeded under this misapprehension of law, it failed to exercise the discretion



       3 Notably, the Court of Appeals panel in Gayton–Barbosa, the case cited by the
Campbell II panel, employed exactly such an individualized analysis in deciding to invoke
Rule 2. Gayton–Barbosa, 197 N.C. App. 129, 135 & n.4, 676 S.E.2d 586, 590 & n.4 (discussing
the specific circumstances and then determining that, “given the peculiar facts of this case, it
is appropriate to address [the] defendant’s variance-based challenge on the merits”(emphasis
added)).

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                                  Opinion of the Court



inherent in the “residual power of our appellate courts.” See Steingress, 350 N.C. at

66, 511 S.E.2d at 299-300.

      Accordingly, we reverse and remand this case to the Court of Appeals so that

it may independently and expressly determine whether, on the facts and under the

circumstances of this specific case, to exercise its discretion to employ Rule 2 of the

North Carolina Rules of Appellate Procedure, suspend Rule 10(a)(1), and consider the

merits of defendant’s fatal variance argument. The remaining issue addressed by the

Court of Appeals is not before this Court, and that court’s decision as to that matter

remains undisturbed.


      REVERSED and REMANDED.




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