               IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 75PA19

                                 Filed 3 April 2020
STATE OF NORTH CAROLINA

              v.
ADAM WARREN CONLEY


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

decision of the Court of Appeals, 825 S.E.2d 10 (N.C. Ct. App. 2019), reversing

judgments entered on 16 August 2017 by Judge Robert T. Sumner in Superior Court,

Macon County, and remanding for resentencing. Heard in the Supreme Court on

8 January 2020.


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

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


      DAVIS, Justice.


      Subsection 14-269.2(b) of the North Carolina General Statutes prohibits the

possession of firearms on school property. In the present case, defendant Adam

Warren Conley was convicted and sentenced on five separate counts for violation of

the statute based on an incident in which he was discovered on the grounds of a school

in possession of five guns. Based on our determination that N.C.G.S. § 14-269.2(b) is
                                  STATE V. CONLEY

                                  Opinion of the Court



ambiguous as to whether multiple convictions are permitted for the simultaneous

possession of more than one firearm on a single occasion, we conclude that—under

the rule of lenity—defendant could only lawfully be convicted on one count.

Accordingly, we affirm the decision of the Court of Appeals.

                      Factual and Procedural Background

      On 4 June 2015, a couple who lived on Union School Road in Macon County

called the police after hearing several gunshots around 4:40 a.m. and observing two

unknown persons walking in their front yard. At approximately 5:15 a.m., Alice

Bradley, a school bus driver, was conducting a morning safety check at nearby South

Macon Elementary School when she noticed two individuals in the parking lot. The

two individuals were later identified as defendant and Kathryn Jeter.

      Bradley testified that as she was getting into her car, defendant held up a

silver firearm and pointed it at her. The two individuals then began running toward

her car. In response, Bradley drove her vehicle in their direction and swerved around

them. Defendant and Jeter began walking toward an athletic field behind the school

building. When she returned to her bus to radio for help, Bradley noticed that a black

bag had been placed on the front seat of the bus.

      Deputy Audrey Parrish of the Macon County Sheriff’s Office responded to the

initial call and began to search for defendant and Jeter on the school grounds. She

located the two individuals walking near a fence by an athletic field behind the school

and noticed that they were approaching the school building. Deputy Parrish

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                                   Opinion of the Court



identified herself as a law enforcement officer and ordered defendant and Jeter to

stop walking and turn around. Defendant turned toward Deputy Parrish, raised the

silver pistol, and pointed it at her. Deputy Parrish heard defendant pull the trigger,

but the gun did not fire. At that point, she fled to her car.

      Additional law enforcement officers arrived around 5:30 a.m. After a struggle,

during which officers had to employ a Taser three times, defendant was taken into

custody. As he was being detained, officers observed a silver handgun fall from

defendant’s waistband to the ground. Officers recovered several other firearms and

knives from defendant’s person. Ultimately, four firearms and two hunting knives

were recovered at the scene. During a subsequent search of the school grounds, law

enforcement officers discovered that the black bag that had been placed on Bradley’s

school bus belonged to defendant and contained an additional .22 caliber pistol.

      On 29 June 2015, defendant was indicted by the Macon County grand jury on

eleven charges: attempted murder, discharge of a firearm on educational property,

assault by pointing a gun, cruelty to animals, possession of a knife on educational

property, possession of a firearm in violation of a domestic violence protective order,

and five counts of possession of a firearm on educational property.

      Defendant was convicted by a jury of one count of attempted first-degree

murder, five counts of possession of a gun on educational property, one count of

possession of a knife on educational property, one count of cruelty to animals, and

one count of assault by pointing a gun. Defendant was sentenced to three consecutive


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terms of imprisonment: (1) 170 to 216 months for the attempted first-degree murder

conviction; (2) a consolidated term of six to seventeen months for three convictions of

possession of a firearm on educational property; and (3) a consolidated term of six to

seventeen months, suspended for 24 months of probation, for all remaining

convictions. Defendant filed an untimely notice of appeal on 31 August 2017. On 27

March 2018, he filed a petition for writ of certiorari with the Court of Appeals,

requesting that the court review his convictions despite the fact that his notice of

appeal was not timely filed. The Court of Appeals allowed his petition on 19 February

2019.

        Before the Court of Appeals, defendant argued, inter alia, that the trial court

erred by entering judgment on five separate counts of possession of a firearm on

educational property, contending that N.C.G.S. § 14-269.2(b) did not clearly

authorize the court to enter judgment on multiple counts for the simultaneous

possession of more than one firearm. In a unanimous decision, the Court of Appeals

held that N.C.G.S. § 14-269.2(b) “is ambiguous as to whether multiple punishments

for the simultaneous possession of multiple firearms is authorized.” State v. Conley,

825 S.E.2d 10, 15 (N.C. Ct. App. 2019). Applying the rule of lenity, the Court of

Appeals determined that the statute should be construed as permitting only a single

conviction. Id. at 14–15. For that reason, the Court of Appeals reversed the judgments

and remanded the case to the trial court for resentencing. Id. at 15.

        The State filed a petition for discretionary review with this Court on 25 March


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                                      Opinion of the Court



2019. We allowed the petition on 14 August 2019.

                                          Analysis

      The sole issue before us is whether a defendant can lawfully be convicted of

more than one count of possession of a firearm on educational property based on his

simultaneous possession of multiple firearms.1 Subsection 14-269.2(b) of the General

Statutes provides as follows:

               It shall be a Class I felony for any person knowingly to
               possess or carry, whether openly or concealed, any gun,
               rifle, pistol, or other firearm of any kind on educational
               property or to a curricular or extracurricular activity
               sponsored by a school.

N.C.G.S. § 14-269.2(b) (2019) (emphasis added). The crux of the dispute in this appeal

centers around the use of the phrase “any gun” in the statute—namely, whether the

statute’s prohibition of possessing or carrying “any gun” on educational property

means that separate punishments may be imposed for each gun possessed on a

specific occasion or, alternatively, that only a single punishment may be imposed,

regardless of the number of guns possessed.

      This Court has not previously had occasion to determine this precise issue. The

Court of Appeals, however, addressed a similar issue in State v. Garris, 191 N.C. App.

276, 663 S.E.2d 340 (2008), which was relied on by the Court of Appeals in reaching

its result in the present case.




      1   Defendant has not challenged the validity of his remaining convictions.

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                                    Opinion of the Court



       In Garris, the defendant was convicted of two counts of possession of a firearm

by a felon after two firearms were simultaneously found on his person. Id. at 285, 663

S.E.2d at 348. The relevant statute provided that it was unlawful for any felon to

possess “any firearm or any weapon of mass death and destruction.” N.C.G.S. § 14-

415.1(a) (2007). The Court of Appeals determined that the legislature’s use of the

phrase “any firearm” was ambiguous because “it could be construed as referring to a

single firearm or multiple firearms.” Garris, 191 N.C. App. at 283, 663 S.E.2d at 346.

Thus, the court explained that it was “unclear whether a defendant may be convicted

for each firearm he possesses if he possesses multiple firearms simultaneously.” Id.

Noting that “[t]he rule of lenity ‘forbids a court to interpret a statute so as to increase

the penalty that it places on an individual when the Legislature has not clearly stated

such an intention[,]’ ” id. at 284, 663 S.E.2d at 347 (quoting State v. Boykin, 78 N.C.

App. 572, 577, 337 S.E.2d 678, 681 (1985)), the court in Garris concluded that the

defendant could be “sentenced only once for possession of a firearm by a felon based

on his simultaneous possession of both firearms.” Garris, 191 N.C. App. at 285, 663

S.E.2d at 348.

       In the present case, based upon our thorough review of the language of

N.C.G.S. § 14-269.2(b) and guided by our prior case law, we conclude that the result

reached by the Court of Appeals was correct. We believe this conclusion is mandated

by our decision in State v. Smith, 323 N.C. 439, 373 S.E.2d 435 (1988), in which we

engaged in an analogous exercise of statutory interpretation with regard to a statute


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                                   Opinion of the Court



structurally similar to the one at issue here.

      In Smith, the defendant, a bookstore clerk, was arrested for selling two obscene

magazines and one obscene film to an undercover officer. Id. at 440, 373 S.E.2d at

436. The defendant was convicted of three separate violations of N.C.G.S. § 14-

190.1(a), which made it unlawful to “sell, deliver or provide any obscene writing,

picture, record or other representation or embodiment of the obscene.” Id. at 440–41,

373 S.E.2d at 436 (quoting N.C.G.S. § 14-190.1(a)(1) (1986)). The defendant argued

that he could not lawfully be punished for three separate counts of the offense because

the statute was ambiguous as to “the allowable unit of prosecution” when multiple

obscene items are sold in a single transaction. Id. at 441, 373 S.E.2d at 437.

      This Court agreed with the defendant’s argument, reasoning that because the

statute made “no differentiation of offenses based upon the quantity of the obscene

items disseminated,” an ambiguity existed as to whether the legislature intended to

punish a defendant for the dissemination of “each obscene item” or, instead, “intended

that a single penalty attach to the unlawful conduct of disseminating obscenity.” Id.

at 441, 373 S.E.2d at 436. Due to the statute’s failure to clearly express the General

Assembly’s intent as to the allowable unit of prosecution, we determined that this

ambiguity should be resolved in favor of lenity toward the defendant. Id. at 441, 373

S.E.2d at 437.

      In so holding, we cited with approval the rule articulated by the United States

Supreme Court providing that “if Congress does not fix the punishment for a federal


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                                   Opinion of the Court



offense clearly and without ambiguity, doubt will be resolved against turning a single

transaction into multiple offenses.” Id. at 442, 373 S.E.2d at 437 (quoting Bell v.

United States, 349 U.S. 81, 83–84, 99 L. Ed. 905, 910–11 (1955)). We further stated

that our result was “in accord with the general rule in North Carolina that statutes

creating criminal offenses must be strictly construed against the State.” Smith, 323

N.C. at 444, 373 S.E.2d at 438. Accordingly, because the defendant sold the three

prohibited items in a single transaction, we concluded that “a single sale in

contravention of G.S. § 14-190.1 does not spawn multiple indictments” and, therefore,

the defendant could be convicted of only one count of violating the statute. Id.

      Although the facts in Smith are distinguishable from those of the present case

and the convictions there arose under a different statute than the one presently

before us, we are nevertheless compelled to apply the same legal principles that we

applied in Smith in interpreting N.C.G.S. § 14-269.2(b). Because it is clear that

N.C.G.S. § 14-269.2(b) shares a parallel structure with the statute at issue in Smith,

our rationale for applying the rule of lenity in that case applies equally here.

      The statute in Smith prohibited the dissemination of “any obscene writing,

picture, record or other representation or embodiment of the obscene.” Smith, 323

N.C. at 440–41, 373 S.E.2d at 436 (emphasis added) (quoting N.C.G.S. § 14-190.1).

Subsection 14-269.2(b) prohibits the possession of “any gun, rifle, pistol, or other

firearm” on educational property. N.C.G.S. § 14-269.2(b) (emphasis added). Thus, the

statutes at issue in both cases contain the word “any” followed by a list of singular


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                                     Opinion of the Court



nouns in order to enumerate the prohibited items. In both statutes, this grammatical

structure could reasonably be construed as referring either to a single item or to

multiple items.2 Accordingly, we similarly conclude that the statutory language here

is ambiguous as to “the allowable unit of prosecution.” Smith, 323 N.C. at 441, 373

S.E.2d at 437. Thus, defendant can be convicted of only one violation of N.C.G.S. § 14-

269.2(b).

       While the State attempts to explain why Smith should not control on these

facts, we find the State’s arguments to be unpersuasive. The State first contends that

the legislature’s use of the word “any” in N.C.G.S. § 14-269.2(b) is merely intended to

encompass the numerous types of firearms in existence—making clear that a person

cannot possess a firearm on educational property regardless of whether the firearm

is a pistol, rifle, shotgun, machine gun, or other type of gun. But the same argument

could have been made in Smith—that is, the argument that the term “any” in the

statutory phrase “any obscene writing, picture, record or other representation or

embodiment of the obscene” was intended to cover all obscene materials regardless of


       2 As the Supreme Court of Alabama has noted, in order to discern the legislature’s
intent as to the intended unit of prosecution, courts often focus on whether a statute uses the
word “any” or the words “a” or “another” to describe the prohibited item. McKinney v. State,
511 So. 2d 220, 224–25 (Ala. 1987) (citation omitted). The court elaborated on this point as
follows: “How, then, should the unit of prosecution be described so that an intent to allow
multiple convictions is clear and unequivocal? Instead of using the word ‘any’ to describe the
unit of prosecution, the singular words ‘a’ or ‘another’ should be used.” Id. at 224 (citation
omitted).




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                                  Opinion of the Court



the form they took.

      Moreover, the State’s argument is further refuted by the fact that the phrase

“or other firearm of any kind” in N.C.G.S. § 14-269.2(b) already conveys the meaning

that all types of firearms are encompassed by the statute. Therefore, under the State’s

argument, the General Assembly’s use of either the word “any” or the phrase “or other

firearm of any kind” would be merely an act of redundancy. It is a well-established

rule of statutory construction that a statute “must be considered as a whole and

construed, if possible, so that none of its provisions shall be rendered useless or

redundant. It is presumed that the legislature . . . did not intend any provision to be

mere surplusage.” Porsh Builders, Inc. v. City of Winston-Salem, 302 N.C. 550, 556,

276 S.E.2d 443, 447 (1981) (citations omitted).

      Second, the State contends that Smith is distinguishable from this case

because the statute at issue there dealt with the dissemination, as opposed to the

possession, of the enumerated items. However, the fact that N.C.G.S. § 14-190.1(a)(1)

concerned the dissemination—rather than the possession—of prohibited items is a

distinction without a difference. Our ruling in Smith was predicated on the ambiguity

of the language contained in the above-referenced portion of the statute rather than

on any substantive distinction between the act of disseminating and the act of

possessing. An act of possession, like an act of dissemination, may involve either one

or multiple items. Just as the obscenity statute in Smith “ma[de] no differentiation

of offenses based upon the quantity of the obscene items disseminated,” Smith, 323


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                                  Opinion of the Court



N.C. at 441, 373 S.E.2d at 436, subsection 14-269.2(b) likewise makes no

differentiation of offenses based on the quantity of firearms possessed.

      Third, the State asserts that unlike the relatively modest increase in the

amount of harm caused by the dissemination of each additional obscene item in

Smith, defendant’s possession of each additional firearm on school property

represents a separate and discrete potential for violence. The State argues that the

General Assembly could not have intended that a person who brings five firearms

onto school property would receive no greater punishment than an individual who

brings only one.

      We disagree. Indeed, the question of whether to impose one or multiple

punishments under N.C.G.S. § 14-269.2(b) in this context is a quintessential example

of a policy decision reserved for a legislative body. Our recognition of the serious

danger resulting from the presence of guns on school property does not allow us to

usurp the General Assembly’s authority to make such policy decisions. See Rhyne v.

K-Mart Corp., 358 N.C. 160, 169, 594 S.E.2d 1, 8 (2004) (“The General Assembly is

the ‘policy-making agency’ because it is a far more appropriate forum than the courts

for implementing policy-based changes to our laws.”). Once such a policy decision has

been made by the General Assembly and codified by statute, it is the duty of the

courts to give meaning to the legislature’s clearly stated intent. However, we are

unable to discern such an unambiguous expression of intent based on our reading of

N.C.G.S. § 14-269.2(b) in its present form.


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                                   Opinion of the Court



      The dissent asserts that N.C.G.S. § 14-269.2(b) is a unique statute because it

transforms what might otherwise be a lawful act—the possession of a firearm—into

an unlawful one based solely upon the location where the possession occurs. The

dissent takes this as proof that the legislature intended for possession of a gun on

school property to generate a heightened degree of concern, thereby rendering this

statute deserving of special treatment. The dissent also believes that this location-

focused nature of the criminal prohibition on firearms on school property makes

N.C.G.S. § 14-269.2(b) distinguishable from the statutes at issue in Smith and Garris,

given that the statutes in those two cases merely imposed generalized bans on

possession or dissemination of certain items that applied in any location.

      However, the dissent does not explain why the location-based nature of the

criminal prohibition in N.C.G.S. § 14-269.2(b) renders it materially distinguishable

from the obscenity statute at issue in Smith for purposes of the rule of lenity’s

applicability. It is certainly true that the two statutes might have different aims, each

seeking to address a distinct type of criminal conduct. But this does not change the

key fact that both statutes share the same core ambiguity in that neither one clearly

indicates the intended allowable unit of prosecution.

      Statutory language is either ambiguous or it is not. Moreover, language that

is ambiguous in one statute does not magically shed its ambiguity when used in a

second statute just because the evil sought to be addressed in the latter law is deemed

to be of greater public concern than that addressed by the former one. We are not


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                                   Opinion of the Court



permitted to disregard the rule of lenity simply because its application in a particular

case may be perceived as inconvenient.

      The dissent contends that our analysis neglects the spirit of the law and what

it believes was the likely result that the legislature sought to accomplish. But the

dissent’s subjective belief as to the legislature’s intent does not change the fact that

there are two reasonable constructions of N.C.G.S. § 14-269.2(b) with regard to the

intended allowable unit of prosecution. As a result, this is precisely the type of

scenario for which the rule of lenity exists. The statutory language at issue in

N.C.G.S. § 14-269.2(b) is ambiguous for the very same reason that the analogous

language in the obscenity statute in Smith was held to be ambiguous by this Court.

Unless we were to overrule Smith—a result that the dissent does not advocate—

adherence to our prior decision mandates that we reach the same result here.

      Smith stands for the proposition that a statute possessing this same type of

structure—i.e., employing the word “any” followed by a list of singular nouns to

enumerate the prohibited items—is ambiguous as to the allowable unit of

prosecution. Accordingly, we are bound by Smith to conclude that this ambiguity

triggers the rule of lenity in the present case, and we decline to take the dissent up

on its invitation to engage in what would be an act of pure judicial speculation in

guessing which interpretation the legislature actually intended.

      It is important to emphasize that the General Assembly is, of course, free to

amend the language of N.C.G.S. § 14-269.2(b) at any time to allow for multiple


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                                     Opinion of the Court



punishments when an individual simultaneously possesses more than one firearm on

educational property. But any such amendment must unambiguously state a

legislative intent to accomplish this result. Given the existing ambiguity in N.C.G.S.

§ 14-269.2(b), we are required by our prior decision in Smith to invoke the rule of

lenity and to hold that defendant may be convicted of only a single violation of this

statute.3

                                       Conclusion

       For the reasons stated above, we affirm the decision of the Court of Appeals.

       AFFIRMED.




       3  We note that our decision today is consistent with several cases from other
jurisdictions similarly holding that multiple punishments are not permitted for a single
instance of unlawful possession in violation of a statute that uses the term “any” to describe
the items to be prohibited. See, e.g., United States v. Dunford, 148 F.3d 385, 390 (4th Cir.
1998) (construing a federal statute prohibiting the possession of “any firearm” by a felon to
mean that the defendant’s “possession of [ ] six firearms and ammunition, seized at the same
time from his house, supports only one conviction”); State v. Watts, 462 So. 2d 813, 814–15
(Fla. 1985) (holding that a Florida statute prohibiting inmates from possessing “[a]ny firearm
or weapon” on prison grounds permitted a defendant who possessed two knives to be
convicted of only one count of the offense).



                                            -14-
      Justice MORGAN dissenting.


      I respectfully dissent from my esteemed colleagues in the majority who, in my

view, have mistakenly considered our decision in State v. Smith, 323 N.C. 439, 373

S.E.2d 435 (1988) to be controlling authority in the present case. As a result, I am of

the opinion that the majority has ignored the presence of clear legislative intent in

subsection 14-269.2(b) of the North Carolina General Statutes, misapplied the rule of

lenity, and, consequently, reached the unfortunate conclusion that a person who

violates the statute by carrying multiple firearms on educational property is subject

to only a single conviction for such criminal activity. In my view, such a person

presents a significant threat to the sanctity of educational property which is so

abhorrent in its potentiality that the imposition of multiple punishments for the

offense should be available as warranted. Although the majority finds ambiguity in

the plain language of N.C.G.S. § 14-269.2(b), which would inure to the benefit of its

violator regarding the administration of punishment for an offense under this law, I

would instead hold that N.C.G.S. § 14-269.2(b) permits multiple convictions to be

entered against defendant under the facts of this case, wherein defendant carried

several firearms on his person and carried a separate firearm that was placed on a

school bus. Therefore, I would reverse the decision of the Court of Appeals and

reinstate the judgment of the trial court.


      “Legislative intent controls the meaning of a statute.” Brown v. Flowe, 349 N.C.
                                   STATE V. CONLEY

                                  Morgan, J., dissenting



520, 522, 507 S.E.2d 894, 895 (1998) (citation omitted). “To determine legislative

intent, a court must analyze the statute as a whole, considering the chosen words

themselves, the spirit of the act, and the objectives the statute seeks to accomplish.”

Id. As this Court explained in State v. Earnhardt,

             [w]here [a statute] is clearly worded, so that it is free from
             ambiguity, the letter of it is not to be disregarded in favor
             of a mere presumption as to what policy was intended to be
             declared . . . But where it admits of more than one
             construction, or is doubtful of meaning, uncertain, or
             ambiguous, it is not to be construed only by its exact
             language, but by its apparent general purpose; that
             meaning being adopted which will best serve to execute the
             design and purpose of the act.

170 N.C. 725, 86 S.E.2d 960, 961 (1915) (emphasis added) (citations omitted). While

it is true that a statute creating a criminal offense “must be strictly construed against

the State[,]” Smith, 323 N.C. at 444, 373 S.E.2d at 438, “[t]he statute . . . should be

construed sensibly, and, in order to make sure of the true intent, the meaning of [the]

words or phrases may be extended or narrowed or additional terms implied, or it may

be presumed that the [l]egislature intended exceptions to its language, where this is

necessary to be done in order to enforce the evident purpose” of the statute.

Earnhardt, 170 N.C. at 725, 86 S.E.2d at 961. Moreover, “if a literal interpretation of

a word or phrase’s plain meaning [in a statute] will lead to absurd results, or

contravene the manifest purpose of the legislature, as otherwise expressed, the reason

and the purpose of the law shall control.” State v. Rankin, 371 N.C. 885, 889, 821

S.E.2d 787, 792 (2018) (emphasis added).


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                                   STATE V. CONLEY

                                  Morgan, J., dissenting



      N.C.G.S. § 14-269.2(b) reads, in pertinent part: “It shall be a Class I felony for

any person knowingly to possess or carry, 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)

(2015) (emphasis added). The only element of N.C.G.S. § 14-269.2(b) that would

render unlawful an otherwise lawful ability to possess or carry any gun or other

firearm is the inability to legally possess or carry it on educational property. Hence,

it is clear that the legislature intended that the presence of any gun or other firearm

on educational property generate a heightened degree of concern in comparison to a

more generalized type of item, and generate a heightened degree of treatment in

comparison to a more generalized type of place where a gun or other firearm is

possessed or carried. The obvious legislative intent of this focused statutory

enactment is to prevent violence in the schools located in North Carolina. An increase

in the number of firearms possessed or carried by a person on educational property

begets an increase in the dangers faced by those who learn, teach, administrate, work,

or are otherwise found in the facilities of these academic institutions or upon their

grounds. In its brief, the State’s depiction of each firearm possessed or carried on

educational property as “a separate, discrete instrument of death” which affords a

potential shooter with the means to minimize a need to reload a firearm or the

requisite time to replenish its ammunition is a grim observation of the realities of the

existence of N.C.G.S. § 14-269.2(b) and the properness of an interpretation of the

statute to allow the prospect of multiple convictions for a violation of the law.


                                           -3-
                                    STATE V. CONLEY

                                   Morgan, J., dissenting



      The majority, however, finds ambiguity in the phrase “any gun” as utilized in

N.C.G.S. §14-269.2(b) and resolves this ambiguity in favor of lenity toward defendant,

concluding that the statute does not authorize the entry of multiple convictions for

the simultaneous possession of multiple guns on educational property. My esteemed

colleagues of the majority believe that this conclusion is mandated by our decision in

Smith, a case in which this Court determined that the rule of lenity prevented a

defendant from receiving multiple convictions for the dissemination of multiple items

of obscenity in one single sales transaction. See Smith, 323 N.C. at 440, 373 S.E.2d

at 436. In construing N.C.G.S. § 14-190.1, which established that it is unlawful to

disseminate “any obscene writing, picture, record or other representation or

embodiment of the obscene,” we found the principle espoused by the United States

Supreme Court in Bell v. United States, 349 U.S. 81, 99 L. Ed. 2d 905 (1955) to be

persuasive. The principle states that “when the legislature does not clearly express

legislative intent, . . . any ambiguity should be resolved in favor of lenity.” Smith, 323

N.C. at 441, 373 S.E.2d at 437 (citing Bell, 349 U.S. at 81, 99 L. Ed. 23 at 905).

However, despite the specific strictures of N.C.G.S. § 14-269.2(b), the majority in the

instant case nonetheless likens this statute to N.C.G.S. § 14-190.1—the

dissemination of obscenity statute addressed in Smith—to apply the rule of lenity,

due to statutory ambiguity in the absence of an express legislative intent. But in

Smith, the subject matter of the statute concerned obscenity outlawed generally from

being disseminated; here, the subject matter of the statute concerns firearms


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                                     STATE V. CONLEY

                                    Morgan, J., dissenting



outlawed specifically from being on educational property. In Smith, there was no

identifiable purpose to punish more severely the dissemination of individual items of

obscenity than the dissemination of a group of items of obscenity as to the commission

of one offense, because the harm to society was still quantitatively the same; on the

other hand, there is an identifiable purpose to punish more severely the act of

possessing or carrying individual firearms than a group of firearms as to the

commission of one offense, due to the significant threat of danger to human life which

is quantitatively increased by the presence of multiple firearms.


       The majority also cites the Court of Appeals decision in State v. Garris, 191

N.C. App. 276, 663 S.E.2d 340 (2008) as helpful guidance in this case of first

impression in our Court. In Garris, the lower appellate court determined that the

language of N.C.G.S. § 14-415.1, which makes it unlawful for a person who has been

convicted of a felony “to . . . have in his custody, care, or control any firearm . . . ,” was

ambiguous as to whether “the statute would allow for multiple convictions for

possession if multiple firearms were possessed, even if they were possessed

simultaneously.” Smith, 323 N.C. at 283, 663 S.E.2d at 346 (quoting N.C.G.S. §§ 14-

288.8(c), 14-415.1(a) (2007)). The Court of Appeals held that, under the Court’s

reasoning in Bell, the ambiguity should be resolved in favor of lenity so as to allow

the defendant felon in Garris to be convicted and sentenced only once for possession

of a firearm by a felon based upon his simultaneous possession of multiple firearms



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                                   Morgan, J., dissenting



“in the absence of a contrary legislative intent.” Id. at 284, 663 S.E.2d at 347 (citation

omitted). The majority analogizes N.C.G.S. § 14-415.1(a) to N.C.G.S. § 14-269.2(b)

and hence applies the rule of lenity, due to statutory ambiguity in the absence of

contrary legislative intent. But in Garris, the subject matter of the statute had

application to a firearm possessed by a felon anywhere; here, the subject matter of

the statute has application to a firearm carried or possessed specifically on

educational property by anyone. Although the majority in the present case cites

Garris primarily to support its premise that there is an appellate court consistency

in these two case outcomes, I submit that the dominant consistency lies in the

majority’s automatic association of a criminal statute’s provision beginning with the

term “any” with the majority’s propensity to invoke the rule of lenity in such

circumstances, which is compounded in the instant case by the majority’s express

view that there is no evident expression of legislative intent to authorize multiple

punishments for multiple firearms being possessed or carried on educational property

in violation of N.C.G.S. § 14-269.2(b).


      In stretching the tight confines of the present case in order to capture the

generalities afforded by N.C.G.S. § 14-190.1 as construed in Smith and N.C.G.S. § 14-

415.1 as interpreted in Garris, the majority conveniently ignores the clear legislative

intent that undergirds N.C.G.S. § 14-269.2(b). It also unduly inflates the similarities

between and among the legal authorities upon which it relies in order to rationalize



                                            -6-
                                  STATE V. CONLEY

                                 Morgan, J., dissenting



its determination that these cited statutes and cases constitute binding precedent,

thus misappropriating the rule of lenity. In relying primarily and heavily upon the

doctrine, the majority fails to comport with the guidance provided by the United

States Supreme Court in Callanan v. United States, 364 U.S. 587, 815 S. Ct. 321, 5

L.Ed. 2d 312 (1961) regarding the correct application of the rule of lenity: “The rule

[of lenity] comes into operation at the end of the process of construing what [the

legislative body] has expressed, not at the beginning as an overriding consideration

of being lenient to wrongdoers. That is not the function of the judiciary.” Id. at 596,

815 S. Ct. at 326.


      The majority notes that “N.C.G.S. § 14-269.2(b) shares a parallel structure to

the statute at issue in Smith” and is “a structurally similar statute.” In its analyses

of both Smith and Garris, which the majority has chosen to serve as precedent for its

determination of the instant case, along with the corresponding statutes featured in

those appellate cases, it appears that the majority has become so lulled by, and

enthralled with, the rhythmic cadence of the structurally similar provisions of

N.C.G.S. § 14-190.1—“any obscene writing . . . .”—and N.C.G.S. § 14-415.1—“any

firearm”—that the language of N.C.G.S. § 14-269.2(b)—“any gun”—is hypnotically

viewed through the same lens, even though N.C.G.S. § 14-269.2(b) is more grounded

in a specific narrow statutory enactment with clearer legislative intent than the other




                                          -7-
                                    STATE V. CONLEY

                                   Morgan, J., dissenting



statutes, which I opine should obviate any perceived statutory ambiguity and

eliminate any need to invoke the rule of lenity.


      Just as the majority looks to the Garris decision of the Court of Appeals to

support its determination, I am likewise inclined to cite an opinion, In re Cowley, 120

N.C. App. 274, 461 S.E.2d 804 (1995), from our distinguished colleagues of the lower

appellate court. In determining in In re Cowley that a gun possessed on educational

property did not have to be operable in order to violate the “any gun” provision of

N.C.G.S. § 14-269.2(b), the Court of Appeals recognized that the General Assembly

had already fashioned the statute in such a manner that the court was obliged to take

note that “the focus of the statute is the increased necessity for safety in our schools.”

Id. at 276, 461 S.E.2d at 806. In expressly distinguishing N.C.G.S. § 14-269.2(b) from

other criminal offense statutes pertaining to firearms such as the offense of

possession of a firearm by a felon embodied in N.C.G.S. § 14-415.1(a) and the offense

of armed robbery found in N.C.G.S. § 14-87, the unanimous panel of the Court of

Appeals in In re Cowley expressly noted:

             “Public policy favors that [N.C.G.S.] § 14-269.2(b) be
             treated differently from the other firearm statutes. The
             other statutes are concerned with the increased risk of
             endangerment, while the purpose of [N.C.G.S.] § 14-
             269.2(b) is to deter students and others from bringing any
             type of gun onto school grounds.”

Id. at 276, 461, S.E.2d at 806.




                                            -8-
                                   STATE V. CONLEY

                                  Morgan, J., dissenting



      The majority’s pervasive holding that the Court of Appeals is correct in the

current case that N.C.G.S. § 14-269.2(b) “should be construed as only permitting a

single conviction” is an unfortunate construction of this statute which was clearly

intended by the legislature to protect a community of individuals with inherently

minimal defenses in the educational setting. In determining that in any and all

circumstances, a criminal defendant can only be convicted by the trial court of a single

offense under N.C.G.S. § 14-269.2(b)—regardless of the number of guns, rifles,

pistols, or other firearms which are knowingly carried on educational property or to

a curricular or extracurricular activity sponsored by a school—the majority has

prospectively limited a statutory violation involving multiple firearms in a school

setting to merely one firearm conviction for scenarios about the likes of which I shall

not speculate. Even here, defendant’s placement of a firearm in a black bag, found on

a school bus at an elementary school in the early morning hours of a school day, in

addition to the multiple firearms that were found on his person, is sufficient to give

pause, in my view, to the ramifications of this case’s outcome, especially as it impacts

the deterrent effects of N.C.G.S. § 14-269.2(b).


      In holding that N.C.G.S. § 14-269.2(b) does not allow for the prospect of

multiple convictions for the simultaneous possession of multiple guns on educational

property, I am of the opinion that this Court’s majority has made a determination

that contravenes the statute’s manifest purpose and defies the legislature’s clear



                                           -9-
                                  STATE V. CONLEY

                                 Morgan, J., dissenting



intent to protect a vulnerable population from potential school shootings. In doing so,

I respectfully consider the majority to have neglected to analyze N.C.G.S. § 14-

269.2(b) as a whole in order to consider the chosen words, the spirit of the law, and

the objectives that the statute seeks to accomplish.


      For the reasons given, I respectfully dissent.


      Justice NEWBY joins in this dissenting opinion.




                                         -10-
