IN THE SUPREME COURT OF NORTH CAROLINA No. 252P A1 4

- 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. ___, 77 7 S.E.2d 525 (20 15 ), 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 , 7 59 S.E.2d 380 (20 1 4 ). Heard in the Supreme Court on 20 March 2017

.
Josh ua 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

- appell ee .
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 indepen den t assessment of whether that court need andS TATE V
. C AMPBELL Opinion of the Court

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- should invoke its discretion under Rule 2 of the North Carolina Rules of Appellate Procedure in order to reach the merits of one of d efendant’s substantive issues on appeal. In light o f 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. T he evidence at trial tended to show the following: O vernight on 15 August 2012, certain sound equ ipment disappeared from Manna Baptist Church in Shelby, North Carolina , and d efendant’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 d efendant left the church, he experienced symptoms that led him to belie ve he was having a heart attack , so he called for emergency services. Th e emergency medical technician ( EMT ) who responded to defendant’s call for help testified that d efendant 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

c ame on for tri al at the 10 June 2 013 session of Superior Court, Cleveland County, the Honorable Linwood O. Foust, Judge presiding. Defendant moved to dismiss theS TATE V
. C AMPBELL Opinion of the Court

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- charges against him at the close of the State’s evidence and again at the close of all the ev idence. The trial court denied each motion, and t he jury returned guilty verdicts on both charges. Defendant appealed, making six arguments of error. T he Cou rt of Appeals addressed only two of defendant’s contentions, but vacated hi s 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 f or the Court of Appeals ’ holding s were its determination s 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 fa tal to the indictment, ” such t h at the larceny indictment was “fatally flawed” for failing to “ allege that Manna Baptist Church is a legal ent ity capable of owning property; ” and (2) the State presented ins ufficient 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 , t his 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

.S TATE V
. C AMPBELL Opinion of the Court

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- State v. Campbell , 368 N.C. 83, 8 8 , 772 S.E.2d 440 , 444

- 45 (2015). Accordingly, we

revers ed the decision below and remand ed the case to the Court of Appeals for consider ation of defendant’s four remaining issues on appeal

. Id. at 88, 772 S.E.2d
at 4 45. Defendant’s remaining i ssues 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 larce ny 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 l arceny therein [,] ” i d. 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 pr eviously 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 “ fata l variance” issue or argument.S TATE V
. C AMPBELL Opinion of the Court

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- to raise the fatal variance issue in the trial court, defendant sought review under North Carolin a Rule of App ellate Procedure 2

. Id. at ___, 777 S.E.2d at 53 0

. 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 n ot 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 o f our authority under [Rule 2].’ ” Campbell , ___ N.C. App. at ___, 777 S.E.2d at 53 0 (alteration in original) (quoting State v. Gayton

– Barbosa , 197 N.C. App . 129, 134, 676 S.E.2d 586, 5 90 (2 009) , 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 v ariance 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 . Acco rdingly , the court vacated defendant’sS TATE V
. C AMPBELL Opinion of the Court

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- 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 h as 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, 57 8, 340 S.E.2d 358, 362 (1986)) (emphase s added) ; see also Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co. , 362 N.C. 191, 1 96, 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

case s and parties , such as whether “substantial rights of an appellant are affected

. ” State v. Hart , 361 N.C. 309, 31 6 , 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 super visory powers under Rule 2 of the Rules

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

a n automatic right to review via Rule 2. Instead, w hether an appellant has demonstrated that his matter is the rare case meri ting 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 1 96, 657 S.E. 2d at 364; Hart , 361 N.C.
at 315

- 17 , 644 S.E.2d at 20 4

- 0 6; 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 spe cific circumstances of defendant’s case warranted invocation of Rule 2 , but rather , based
up on 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 53 0

. The court thus acted under the erroneous belief that , because defendant presented a fatal variance argument , the court lacked the ability to act other wise than to reach the merits of defendant’s conten tion

. 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, t he 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 tha t, “ given the peculiar facts of this case , it is appropriate to address [the] defendant’s variance

- based challenge on the merits” (emphasis added) ).S TATE V
. C AMPBELL Opinion of the Court

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- inherent in the “ residual power of our appellate courts

. ” See Steingress , 350 N.C. at
66 , 511 S.E.2d at 299

- 300. Accordingly, w e 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 thi s Court, and that court’s decision as to that matter remain s undisturb ed.

REVERSED and REMANDED.