Background
In October 2020, Asheville Police Department officers surveilling the Klondyke apartment complex observed a white Audi sedan in the parking lot and suspected drug activity. When they approached, they detected the odor of marijuana. Dekalia Simpson, seated in the driver’s seat, initially told officers she had a concealed carry permit—which proved false. A search of the vehicle revealed two firearms, 123 grams of marijuana, approximately $10,480 in cash, and a digital scale. A Buncombe County grand jury indicted Simpson in 2023 on multiple counts. At trial, the jury convicted her of two counts of carrying a concealed firearm under N.C. Gen. Stat. § 14-269(a1)—one for each gun—and acquitted her on the drug-related charges.
At sentencing, the trial court consolidated the two concealed-weapon convictions, sentenced Simpson to thirty days in prison suspended for twenty-four months of probation, and referenced the items seized from the vehicle—including the cash and marijuana—in explaining the sentence despite her acquittal on those charges. Defense counsel requested unsupervised probation and a prayer for judgment continued, both of which the trial court declined. Simpson appealed on three grounds: (1) the trial court could not enter judgment on two counts of carrying a concealed weapon for a single incident; (2) the twenty-four-month probationary term exceeded the statutory maximum without the required findings; and (3) the trial court improperly considered her acquitted conduct at sentencing.
The Court’s Holding
Vacated and Remanded. Judge Carpenter, writing for a unanimous panel, vacated the consolidated judgment and remanded on the first two grounds while rejecting the third. On the unit-of-prosecution issue, the court applied the Conley line of cases. North Carolina law presumes against multiple punishments for a single act absent a clear contrary legislative intent, and the rule of lenity resolves ambiguity in the defendant’s favor. Section 14-269(a1) makes it unlawful “for any person willfully and intentionally to carry concealed about his or her person any pistol or gun.” The word “any,” followed by a singular noun, is structurally identical to the statutes analyzed in State v. Conley, 374 N.C. 209 (2020) (firearms on school property), State v. Smith, 323 N.C. 439 (1988) (obscene materials), and State v. Garris, 191 N.C. App. 276 (2008) (felon-in-possession)—all of which held the “any” language ambiguous as to unit of prosecution. Bound by those precedents, the court held that § 14-269(a1) permits only one conviction per incident regardless of how many firearms were involved.
On the probationary period, N.C. Gen. Stat. § 15A-1343.2(d)(1) caps community-punishment probation for a misdemeanor at eighteen months unless the trial court makes specific written findings that a longer period is necessary. The trial court imposed twenty-four months without any such findings; that error was plain. On acquitted conduct, the court held no improper consideration occurred: the trial court’s sentencing remarks focused on the circumstances of the offense as alleged in the indictment, and its apparent concern was the company Simpson was keeping rather than a personal finding of guilt on the dismissed charges. The court acknowledged, however, that the practical harm from the probation error may already be moot if Simpson completed her term, and it invited the Supreme Court to clarify the double-jeopardy mootness question.
Key Takeaways
- Under N.C. Gen. Stat. § 14-269(a1), a defendant may be convicted of only one count of carrying a concealed weapon per incident, regardless of the number of firearms discovered. The statute’s “any pistol or gun” language is ambiguous as to unit of prosecution; under the rule of lenity and State v. Conley, 374 N.C. 209 (2020), only one conviction survives.
- When sentencing a misdemeanant to community punishment, a trial court cannot impose a probationary period exceeding eighteen months under N.C. Gen. Stat. § 15A-1343.2(d)(1) without entering specific written findings that a longer period is necessary. A general community-punishment designation does not supply those findings.
- A sentencing court’s reference to seized items for which the defendant was acquitted is not automatically an improper consideration. Where the conduct was alleged in the indictment and the trial evidence placed the defendant near those items, the court may reference them in discussing character and associations. Defense counsel should object and press the trial court to articulate a basis that does not incorporate acquitted-conduct findings.
- The court expressly invited Supreme Court guidance on when double-jeopardy sentencing concerns become moot after a defendant completes a misdemeanor probationary term—a question with recurring significance in NC criminal appeals.
Why It Matters
For North Carolina criminal defense practitioners, Simpson confirms that the Conley rule extends to the general concealed-carry statute: defense counsel should audit multi-count concealed-weapon indictments arising from a single stop or search. Where multiple firearms are found in a single encounter, only one count should survive, and a motion to dismiss the duplicative count at the close of evidence is the proper vehicle for raising the issue. The double-jeopardy problem does not disappear merely because convictions are consolidated for judgment—the Court noted that separate convictions can produce adverse collateral consequences even when only one sentence is imposed.
The probationary-period ruling is a straightforward checklist item for defense counsel at sentencing: for any Class II misdemeanor community-punishment case with no prior convictions, the statutory cap is eighteen months and the trial court must make explicit findings before exceeding it. Practitioners handling misdemeanor sentencing across NC’s district and superior courts should verify that their clients’ probation terms comply with § 15A-1343.2(d)(1) or that the required written findings appear in the judgment.