257 N.C. App. 739
N.C. Ct. App.2018Background
- Defendant Thomas Craig Campbell was indicted for breaking or entering a place of religious worship with intent to commit larceny and for larceny after breaking or entering concerning audio equipment taken from Manna Baptist Church.
- Pastor Andy Stevens discovered missing audio equipment after Sunday services and found defendant’s wallet in the baptistery changing area; no signs of forced entry and the stolen items were never recovered.
- Detective interviewed defendant in jail; defendant admitted being at the church but said he could not recall what he had done; defendant testified he entered for water/prayer and denied taking items.
- At trial the jury convicted on both counts; convictions were consolidated for sentencing (split sentence with probation and 140 days jail). Defendant appealed raising six issues (indictment sufficiency, insufficiency of evidence, ineffective assistance, fatal variance as to ownership, sufficiency for larceny, jury unanimity).
- The North Carolina Supreme Court reversed parts of the Court of Appeals earlier, clarifying that naming a church in an indictment can be sufficient to allege an entity capable of owning property, then remanded to the Court of Appeals to decide whether to invoke Rule 2 and to address remaining issues; on further remand the Court of Appeals invoked Rule 2 and held a fatal variance existed, vacating the larceny conviction and remanding for resentencing on the breaking/entering count.
Issues
| Issue | State's Argument | Campbell's Argument | Held |
|---|---|---|---|
| 1. Is the larceny indictment fatally defective for naming both Andy Stevens and Manna Baptist Church as owners when proof only established church ownership? | Indictment was facially sufficient (naming the church adequately alleges an entity capable of ownership). | Proof at trial showed only Manna Baptist Church owned the property; naming Stevens as a co-owner created a fatal variance. | Court of Appeals (on remand under Rule 2) held fatal variance existed and vacated the larceny conviction. |
| 2. Whether to invoke N.C. R. App. P. 2 to consider the unpreserved fatal-variance claim. | Rule 2 should be used rarely; no automatic right to review merely because a variance is alleged. | Given Supreme Court precedent (and potential manifest injustice), Rule 2 should be invoked to avoid upholding a conviction unsupported by proof. | Court exercised Rule 2 discretion (finding this an extraordinary case) and reviewed the fatal-variance claim on the merits. |
| 3. Sufficiency of evidence for larceny (taking/carrying away/intent). | Evidence (defendant in church; wallet found near sound equipment; statements at jail; abandoned duffel) supported reasonable inference of guilt. | Evidence was circumstantial and at most placed defendant where the theft could have occurred; insufficient to prove taking/carrying away and intent. | Although the Court vacated the larceny conviction on variance grounds, it noted the sufficiency issue separately and found the State’s proof weak (circumstantial) — but the primary basis for vacatur was the fatal variance. |
| 4. Jury unanimity re: owner (disjunctive verdict risk). | Instruction using generic "property of another" did not create reversible ambiguity. | Indictment named two owners; jury could have been non‑unanimous about which alleged owner’s property was taken. | Court did not decide this issue as necessary after resolving the fatal-variance claim, but treated it as tied to the variance problem and remanded for resentencing on the remaining count. |
Key Cases Cited
- State v. Greene, 289 N.C. 578 (N.C. 1976) (explains that larceny indictment must show owner had title or a special property interest and that an employee/servant’s possession generally does not supply such an interest)
- State v. Hill, 79 N.C. 656 (N.C. 1878) (holds that alleging multiple owners in an indictment while evidence shows sole ownership creates a fatal variance)
- State v. Brown, 263 N.C. 786 (N.C. 1965) (Supreme Court used supervisory authority to address a fatal variance sua sponte; cited as historical basis for Rule 2 intervention)
- State v. Gayton-Barbosa, 197 N.C. App. 129 (N.C. Ct. App. 2009) (applied an individualized Rule 2 analysis and held a variance-based challenge could justify Rule 2 review in exceptional circumstances)
- State v. Campbell, 368 N.C. 83 (N.C. 2015) (Supreme Court opinion overruling prior Court of Appeals precedent and holding that naming a church can allege an entity capable of owning property)