in the Supreme Court on 20 March 2017.
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).
H. Stein, Attorney General, by Teresa M. Postell, Assistant
Attorney General, for the State-appellant.
Gerding, Appellate Defender, by Hannah Hall Love, Assistant
Appellate Defender, for defendant-appellee.
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 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.
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
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
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, 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 ...