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

-2-

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 
STATE V. CAMPBELL

Opinion of the Court

-3-

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.
STATE V. CAMPBELL

Opinion of the Court

-4-

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.
STATE V. CAMPBELL

Opinion of the Court

-5-

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 
STATE V. CAMPBELL

Opinion of the Court

-6-

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.
STATE V. CAMPBELL

Opinion of the Court

-7-

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)).
STATE V. CAMPBELL

Opinion of the Court

-8-

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.