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Only one conviction permitted for five guns on school grounds

A Macon County man who brought five firearms onto the campus of an elementary school could be charged with only a single count of possession of a firearm on educational property because the relevant criminal statute is unclear about whether it permits multiple convictions for possessing multiple firearms at the same time and so must be narrowly interpreted in the defendant’s favor, a divided North Carolina Supreme Court has ruled in a case of first impression.

Adam Warren Conley was convicted of multiple felonies, including attempted first-degree murder, after an early-morning incident at an elementary school in 2015. Police recovered five firearms at the scene, and Conley was convicted of five counts of possession of a firearm on educational property. On appeal, Conley argued that the possession statute didn’t clearly authorize judgment on multiple counts for the simultaneous possession of more than one firearm, and so only one judgment was permitted. The Court of Appeals unanimously agreed, and the state sought a discretionary review.

Justice Mark Davis, writing for the Supreme Court’s majority in an April 3 opinion, noted that the statute in question prohibits possessing “any gun” or other firearm on school property, and so the dispute turned on the meaning of the phrase “any” gun. The Supreme Court had never considered the question before, but the Court of Appeals had addressed the same issue in 2008 and found that the phrase was ambiguous, and so under the rule of lenity a defendant could be convicted of only one possession charge, regardless of how many firearms were on his person.

Davis affirmed the court’s logic, analogizing the dispute to the Supreme Court’s 1988 decision in State v. Smith, in which a defendant was charged with three separate violations of a law that criminalized the sale of “any obscene writing”. The court found that the statute was ambiguous about how many convictions could be entered based on a single sale, and Davis said that the court was compelled to apply the same legal principles to the gun possession statute, and the state’s efforts to distinguish Smith from the present dispute were unpersuasive.

The state argued that the word “any” was intended to simply encompass the many types of firearms in existence, but Davis said that the exact same argument could have been applied to the obscene writing statute, and another part of the gun possession statute makes clear that it encompasses other firearms “of any kind”. The court also rejected an argument that the smut-peddling statute was different because it dealt with dissemination rather than possession, calling it a “distinction without a difference.”

The state also argued that legislators couldn’t possibly have intended to create a situation where someone who brings five firearms onto school property would receive no greater punishment than an individual who brings only one, but Davis said that this was exactly the sort of policy decision that was the purview of the legislature rather than the courts, and noted that lawmakers are free to change the statute if they see fit to.

“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,” Davis wrote. “We are not permitted to disregard the rule of lenity simply because its application in a particular case may be perceived as inconvenient.”

Justices Mike Morgan and Paul Newby dissented from the court’s ruling, arguing that the legislative intent of the gun possession statute was to prevent violence on school property, and an increased number of firearms enhances the danger to those on school property, and thus merits greater punishment. Morgan said that “it appears that the majority has become so lulled by, and enthralled with, the rhythmic cadence of the structurally similar provisions of” the two statutes that the gun possession statute “is hypnotically viewed through the same lens” despite their differences.

The dissenters argued that the gun possession statute was different because it transformed an otherwise lawful act, the possession of a firearm, into an unlawful act based solely on the location where the possession occurs. Davis addressed the criticism in the majority’s opinion, noting that the dissent didn’t explain why the location-based nature of the gun possession statute made it materially distinguishable from the obscenity statute or changed the core ambiguity that the two laws shared.

Conley was sentenced to 170 to 216 months’ imprisonment for the attempted murder conviction. His other sentences will run consecutively.

The 24-page decision is State v. Conley (Lawyers Weekly No. 010-045-20). The full text of the opinion is available online at nclawyersweekly.com.

Follow David Donovan on Twitter @NCLWDonovan


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