IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-1092
Filed 15 July 2026
Buncombe County, Nos. 20CR090299-100, 20CR090300-100
STATE OF NORTH CAROLINA
v.
DEKALIA LEIGH SIMPSON, Defendant.
Appeal by Defendant from judgments entered 22 February 2024 by Judge
Karen Eady-Williams in Buncombe County Superior Court. Heard in the Court of
Appeals 14 August 2025. Reconsidered upon Defendant’s motion to withdraw
opinion.
Attorney General Jeff Jackson, by Assistant Deputy Attorney General Marc D.
Brunton, for the State.
Jason Christopher Yoder for Defendant-Appellant.
CARPENTER, Judge.
Dekalia Simpson (“Defendant”) appeals from judgments entered after a jury
found her guilty of two counts of carrying a concealed firearm. On appeal, Defendant
argues the trial court erred by: (1) entering judgment on two counts of carrying a
concealed weapon; (2) sentencing her to twenty-four months of probation; and (3)
basing her sentence on improper consideration. After careful review, we vacate the
consolidated judgment and remand for the trial court to arrest judgment on one count
of carrying a concealed weapon and, if appropriate, resentence.
STATE V. SIMPSON
Opinion of the Court
I. Factual & Procedural Background
On 5 June 2023, a Buncombe County grand jury indicted Defendant for: one
count of possession with intent to sell or deliver marijuana, two counts of carrying a
concealed firearm, one count of keeping and maintaining a vehicle for the keeping
and selling of marijuana, one count of possession of marijuana paraphernalia, and
one count of felony possession of marijuana. The State voluntarily dismissed the
charge of possession with intent to sell or deliver marijuana, and Defendant’s case
proceeded to trial on 19 February 2024. The evidence tended to show the following.
Officers with the Asheville Police Department received assignments to monitor
properties within the Asheville Housing Authority (the “Housing Authority”). Their
responsibilities involved helping property managers and residents with issues
ranging from neighborly disputes to resident complaints about drug use and violence.
Generally, when investigating a Housing Authority issue, one officer would view live
surveillance footage of the property in question from the Housing Authority’s office,
and the other officers would investigate on scene.
On 27 October 2020, an officer viewed live footage of the Klondyke apartment
complex, which was part of the Housing Authority, due to increased reports from the
property manager and residents regarding drug use, drug sales, and violent crime.
Most of the reported activity centered around the basketball courts. While surveilling
the basketball courts, the officer noticed a white Audi sedan stopped in the parking
lot. The officer observed two individuals in the vehicle passing an item back and forth
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Opinion of the Court
that he believed to be a “marijuana cigar.” The officer also believed the two
individuals were “hot boxing” inside the enclosed vehicle. The officer relayed his
observations to two officers, who promptly arrived on scene.
As they approached the vehicle, one of the new officers detected the odor of
marijuana and observed two female passengers passing a cigarette back and forth.
Defendant was in the driver’s seat, and her juvenile sister was in the front passenger
seat. The second officer approached the passenger side of the vehicle, while the third
officer approached the driver’s side. The officers initiated a vehicle search based on
the odor of marijuana. After asking Defendant and her sister to exit the vehicle, the
third officer discovered a firearm on the front driver’s side of the vehicle. Defendant
initially advised the officers that she had a concealed carry permit, which the officers
later discovered was false.
Consistent with protocol to detain all passengers upon observation of a weapon
inside a vehicle, the officers detained Defendant and her sister. The second officer
also conducted a Terry frisk of Defendant. At this time, Defendant informed the
officers about a second firearm in the vehicle inside a pink bag. After securing the
two firearms, the officers continued to search the vehicle and discovered 123 grams
of a “green leafy substance,” approximately $10,480 in cash, and a digital scale.
Based on the items seized from the vehicle, officers arrested Defendant and her sister.
At the close of evidence during trial, Defendant moved to dismiss all charges
for insufficient evidence. The trial court denied Defendant’s motion. The jury found
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Defendant guilty of two counts of carrying a concealed firearm, a Class II
misdemeanor, and not guilty of the remaining charges. During sentencing, defense
counsel requested an unsupervised probation term and prayer for judgment
continued. The trial court responded, “I hear your request . . . but I cannot ignore the
facts of the case. Specifically, the amount of money, the guns, the vacuum-sealed
item, whatever it was.” The trial court admitted that it “question[ed] whether [the]
stuff is even [Defendant’s] stuff, to be quite honest.” The trial court then stated, “I
don’t know if it’s the people that you were associated with then. And hopefully you
have removed yourself from these people or person, but they’re taking you down the
wrong path. You have too much going on for you for someone to mess it up for you.”
After consolidating Defendant’s two concealed weapons convictions, the trial
court sentenced Defendant to thirty days in prison, suspended for twenty-four months
of probation. The trial court indicated it chose a probationary period of twenty-four
months as part of community punishment, but it did not make specific findings
regarding its reasons for sentencing above the eighteen-month statutory maximum.
Defendant timely gave notice of appeal on 7 March 2024.
II. Jurisdiction
This Court has jurisdiction under N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A1444(a) (2025).
III. Issues
The issues are whether the trial court erred by: (1) entering judgment on two
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Opinion of the Court
counts of carrying a concealed firearm; (2) sentencing Defendant to twenty-four
months of probation; and (3) basing Defendant’s sentence on improper consideration.
IV. Analysis
A. Standard of Review
We review alleged statutory errors and issues of statutory construction de novo
on appeal. See State v. Mackey, 209 N.C. App. 116, 120, 708 S.E.2d 719, 721 (2011);
State v. Patterson, 266 N.C. App. 567, 570, 831 S.E.2d 619, 622 (2019). “ ‘The extent
to which a trial court imposed a sentence based upon an improper consideration is a
question of law subject to de novo review.’ ” State v. Johnson, 265 N.C. App. 85, 87,
827 S.E.2d 139, 141 (2019) (quoting State v. Pinkerton, 205 N.C. App. 490, 494, 697
S.E.2d 1, 4 (2010), rev’d on other grounds, 365 N.C. 6, 708 S.E.2d 72 (2011)). Under
de novo review, this Court “ ‘considers the matter anew and freely substitutes its own
judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33,
669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen Ltd. P’ship, 356 N.C.
642, 647, 576 S.E.2d 316, 319 (2003)).
B. Sentence
Defendant argues the trial court erred by entering judgment on two counts of
carrying a concealed firearm, sentencing her to an unauthorized period of probation
without making specific findings, and basing her sentence on improper consideration.
We agree in part, while recognizing that resentencing may be moot.
1. Statutory Interpretation
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First, Defendant contends the trial court erred by entering judgment on two
counts of carrying a concealed firearm under section 14-269 because it should have
arrested judgment on the second count. We agree.
“[T]he question of whether to impose one or multiple punishments . . . is a
quintessential example of a policy decision reserved for a legislative body.” State v.
Conley, 374 N.C. 209, 215, 839 S.E.2d 805, 809 (2020). “In construing a criminal
statute, the presumption is against multiple punishments in the absence of a contrary
legislative intent.” State v. Boykin, 78 N.C. App. 572, 576–77, 337 S.E.2d 678, 681
(1985) (citations omitted). Thus, “ ‘until the General Assembly unambiguously
declares a contrary intent, we should assume that a single [act] in contravention of
[a statute] does not spawn multiple indictments[]” and is one unit of prosecution.
State v. Smith, 323 N.C. 439, 444, 373 S.E.2d 435, 438 (1988) (quoting State v. Smith,
89 N.C. App. 19, 25, 365 S.E.2d 631, 635 (1988) (Wells, J., concurring in part and
dissenting in part)).
“Statutory language is either ambiguous or it is not.” Conley, 374 N.C. at 216,
839 S.E.2d at 810. A “subjective belief as to the legislature’s intent does not change
the fact that there are two reasonable constructions . . . .” Id. at 216, 839 S.E.2d at
810. In cases of ambiguity, “the rule of lenity forbids a court to interpret a statute so
as to increase the penalty that it places on an individual when the Legislature has
not clearly stated such an intention.” Boykin, 78 N.C. App. at 577, 337 S.E.2d at 681
(citation omitted).
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Opinion of the Court
Under North Carolina law, it is a Class II misdemeanor “for any person
willfully and intentionally to carry concealed about his or her person any pistol or
gun . . . .” N.C. Gen. Stat. § 14-269(a1), (c) (2019) (emphasis added). Exceptions to
this crime include when “t]he person is on the person’s own premises, the person is
carrying the concealed handgun in accordance with the scope of the concealed
handgun permit, and the person is a military permittee . . . .” Id. § 14-269(a1)(1)–(3)
(cleaned up).
In other cases, our appellate courts have concluded that the word “any” in
similar statutes is ambiguous. See Conley, 374 N.C. at 216–17, 839 S.E.2d at 810;
State v. Smith, 323 N.C. 439, 444, 373 S.E.2d 435, 438 (1988); State v. Garris, 191
N.C. App. 276, 283, 663 S.E.2d 340, 346 (2008). For example, under section 14-269.2(b), it is “ ‘a Class I felony for any person knowingly to possess or carry, whether
openly or concealed, any gun, rifle, pistol, or other firearm of any kind on educational
property or to a curricular or extracurricular activity sponsored by a school.’ ” Conley,
374 N.C. at 212, 839 S.E.2d at 807 (quoting N.C. Gen. Stat. § 14-269.2(b) (2019))
(emphasis in original). On review, our Supreme Court applied the rule of lenity due
to the ambiguity, which “ ‘forbids a court to interpret a statute so as to increase the
penalty that it places on an individual when the Legislature has not clearly stated
such an intention[.]’ ” Id. at 212, 839 S.E.2d at 807 (quoting Garris, 191 N.C. App. at
284, 663 S.E.2d at 347). Accordingly, the Court concluded that a defendant may only
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face conviction of one count of section 14-269.2(b) despite the presence of multiple
firearms. See id. at 217, 839 S.E.2d at 810.
In reaching this conclusion, the Court in Conley relied upon State v. Smith.
See id. at 213–18, 839 S.E.2d at 808–10. In Smith, the defendant was arrested for
selling one obscene film and two obscene magazines. 323 N.C. at 440, 373 S.E.2d at
436. The defendant was tried on three separate counts of section 14-190.1(a), which
made it unlawful to “sell, deliver or provide ‘any obscene writing, picture, record or
other representation or embodiment of the obscene.’ ” Id. at 440–41, 373 S.E.2d at
436 (quoting N.C. Gen. Stat. § 14-190.1(a)(1) (1986)) (emphasis added). Because
section 14-190.1(a) did not differentiate between “offenses based upon the quantity of
the obscene items disseminated[,]” the Court explained the statute was ambiguous
as to whether our General Assembly intended for a unit of prosecution per “each
obscene item” or for a single unit of prosecution to “attach to the unlawful conduct of
intentionally disseminating obscenity[]”—regardless of the number of obscene
materials disseminated. Id. at 441, 373 S.E.2d at 436. Given the ambiguity, the
Court applied the rule of lenity and concluded the defendant could only be convicted
of one count of violating section 14-190.1(a). Id. at 444, 373 S.E.2d at 438.
Conley also relied upon State v. Garris. See Conley, 374 N.C. at 212, 839
S.E.2d at 807–08. In Garris, the defendant was convicted of two counts of possession
of a firearm by a felon under section 14-415.1(a) for possessing two firearms during a
single instance. 191 N.C. App. at 279, 663 S.E.2d at 344. Section 14-415.1(a) states
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“it is ‘unlawful for any [felon] to . . . possess . . . any firearm or any weapon of mass
death and destruction . . . .” Id. at 283, 663 S.E.2d at 346 (quoting N.C. Gen. Stat. §
14-415.1(a) (2007)) (emphasis in original). Our Court determined “any firearm . . . is
ambiguous in that it could be [reasonably] construed as referring to a single firearm
or multiple firearms.” Id. at 283, 663 S.E.2d at 346. As a result, we applied the rule
of lenity and concluded the trial court erred by entering two convictions against the
defendant for possession of a firearm by a felon. Id. at 285, 663 S.E.2d at 348.
Here, section 14-269(a1) “is ambiguous as to the allowable unit of
prosecution.” See Conley, 374 N.C. at 217, 839 S.E.2d at 810. Section 14-269(a1) is
similar in structure to the statutes in Conley, Smith, and Garris as they all use “the
word ‘any’ followed by a list of singular nouns to enumerate the prohibited items[.]”
See Conley, 374 N.C. at 217, 839 S.E.2d at 810; see also Smith, 323 N.C. at 441, 373
S.E.2d at 436; Garris, 191 N.C. App. at 285, 663 S.E.2d at 348. Because “any” is
ambiguous, we apply the rule of lenity in favor of Defendant. See Conley, 374 N.C. at
217, 839 S.E.2d at 810. Accordingly, the trial court erred by failing to arrest judgment
on one of Defendant’s convictions because she “is guilty of only one count” under
section 14-269. See Smith, 323 N.C. at 444, 373 S.E.2d at 438. Bound by the Conley
line of cases, we vacate the consolidated judgment and remand for the trial court to
arrest judgment on one count of carrying a concealed weapon. See In re Civil Penalty,
324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals
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has decided the same issue, albeit in a different case, a subsequent panel of the same
court is bound by that precedent, unless it has been overturned by a higher court.”).
2. Probationary Period
Next, Defendant argues the trial court erred by sentencing her to twenty-four
months of supervised probation without making a specific finding that a longer period
of probation was necessary than the eighteen-month statutory maximum. We agree.
The length of a probationary period is governed by section 15A-1343.2(d),
which provides that “[f]or misdemeanants sentenced to community punishment,” the
original probation period cannot be “less than six nor more than 18 months.” N.C.
Gen. Stat. § 15A-1343.2(d)(1) (2025). The trial court, however, can impose a longer
term by making “specific findings that longer or shorter periods of probation are
necessary[.]” Id. § 15A-1343.2(d).
Here, the trial court failed to make a specific finding that a longer term was
necessary. See id. Defendant was convicted of two Class II misdemeanors, had no
prior convictions, and was a Level I offender for misdemeanor sentencing purposes,
resulting in a statutory maximum probation period of eighteen months. See id. § 15A1343.2(d)(1). The trial court indicated it chose a probationary period of twenty-four
months as part of community punishment, but it did not explain its reasoning
through specific findings. See id. § 15A-1343.2(d). The trial court, therefore, erred.
See id.
3. Improper Consideration
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Lastly, Defendant argues the trial court erred by improperly considering her
“acquitted conduct” during sentencing. Specifically, Defendant challenges the trial
court’s statement during sentencing that it “cannot ignore . . . the amount of money,
the guns, the vacuum-sealed item, whatever it was.” We disagree.
During sentencing hearings, the trial court “is permitted wide latitude and the
rules of evidence are not strictly enforced.” State v. Smith, 300 N.C. 71, 81, 265 S.E.2d
164, 171 (1980) (citations omitted). Generally, “in determining the sentence to be
imposed, the trial judge may consider such matters as the age, character, education,
environment, habits, mentality, propensities and record of the defendant.” State v.
Morris, 60 N.C. App. 750, 754–55, 300 S.E.2d 46, 49 (1983) (citation omitted).
Our courts have concluded improper considerations include a defendant’s
rejection of a plea offer, State v. Boone, 293 N.C. 702, 712, 239 S.E.2d 459, 465 (1977);
a defendant’s finances, State v. Massenburg, 234 N.C. App. 609, 617, 759 S.E.2d 703,
709 (2014); the religion of either a defendant or the judge, State v. Earls, 234 N.C.
App. 186, 194, 758 S.E.2d 654, 659 (2014); and purported conduct not alleged in the
indictment, State v. Swinney, 271 N.C. 130, 133, 155 S.E.2d 545, 548 (1967).
Here, the trial court did not base sentencing on an improper consideration by
noting the type and quantity of items seized from Defendant’s vehicle. See Boone,
293 N.C. at 712, 239 S.E.2d at 465; Massenburg, 234 N.C. App. at 617, 759 S.E.2d at
709; Earls, 234 N.C. App. at 194, 758 S.E.2d at 659; Swinney, 271 N.C. at 133, 155
S.E.2d at 548. Despite Defendant’s acquittal of the charges related to the seizure of
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those items, the indictment alleged the “acquitted conduct,” and the evidence
presented at trial placed Defendant inside the vehicle with the items. Moreover, the
trial court’s main concern in its statement was not necessarily Defendant’s possession
of those items, but rather the “appearance” of Defendant’s proximity to those items.
See Morris, 60 N.C. App. at 754–55, 300 S.E.2d at 49. For example, the trial court
admitted that it “question[ed] whether [the] stuff is even [Defendant’s] stuff, to be
quite honest” and told Defendant that it was concerned the people she was associating
with were leading her down the wrong path. While we caution against discussing
“acquitted conduct” during sentencing, the record does not reflect the trial court
improperly considered the acquitted conduct in sentencing Defendant. See id. at 754–
55, 300 S.E.2d at 49.
4. Remedy
Generally, “to preserve an issue for appellate review, a party must have
presented to the trial court a timely request, objection, or motion[.]” N.C. R. App. P.
10(a)(1) (2025). “An error at sentencing is not considered an error at trial for the
purpose of Rule 10[(a)](1) because this rule is ‘directed to matters which occur at trial
and upon which the trial court must be given an opportunity to rule in order to
preserve the question for appeal.’ ” State v. Curmon, 171 N.C. App. 697, 703, 615
S.E.2d 417, 422 (2005) (quoting State v. Hargett, 157 N.C. App. 90, 93, 577 S.E.2d
703, 705 (2003)). Thus, a defendant does not have “to object at sentencing to preserve
this issue for appellate review.” Id. at 704, 615 S.E.2d at 422–23.
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Opinion of the Court
“Both the fifth amendment to the United States Constitution and article I,
section 19 of the North Carolina Constitution prohibit multiple punishments for the
same offense absent clear legislative intent to the contrary.” State v. Etheridge, 319
N.C. 34, 50, 352 S.E.2d 673, 683 (1987) (citation and emphasis omitted). “That the
offenses were consolidated for judgment does not put to rest double jeopardy issues,
because the separate convictions may still give rise to adverse collateral
consequences.” Id. at 50, 352 S.E.2d at 683 (citations omitted).
“[W]hen an offender’s offenses are consolidated, ‘[t]he judgment shall contain
a sentence disposition specified for the class of offense and prior record level of the
most serious offense[.]’ ” State v. Spence, 248 N.C. App. 103, 109, 787 S.E.2d 455, 459
(2016) (quoting N.C. Gen. Stat. § 15A-1340.15(b) (2015)). Moreover, “[f]or purposes
of determining the prior record level, if an offender is convicted of more than one
offense in a single superior court during one calendar week, only the conviction for
the offense with the highest point total is used.” N.C. Gen. Stat. § 15A-1340.14(d)
(2025).
Generally, “[a] judgment will not be disturbed because of sentencing [errors]
unless there is a showing of abuse of discretion, procedural conduct prejudicial to
defendant, circumstances which manifest inherent unfairness and injustice, or
conduct which offends the public sense of fair play.” State v. Pope, 257 N.C. 326, 335,
126 S.E.2d 126, 133 (1962). In other words, “[a] defendant is prejudiced by
[sentencing] errors . . . when there is a reasonable possibility that, had the error in
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question not been committed, a different result would have been reached[.]” N.C.
Gen. Stat. § 15A-1443(a) (2025). The defendant has the burden to show prejudicial
error. Id.
Yet, “[a] violation of the defendant’s rights under the Constitution of the
United States is prejudicial unless the appellate court finds that it was harmless
beyond a reasonable doubt.” Id. § 15A-1443(b). “The burden is upon the State to
demonstrate, beyond a reasonable doubt, that the error was harmless.” Id.
Here, while we are mindful of Defendant’s potential double jeopardy concerns,
see Etheridge, 319 N.C. at 50, 352 S.E.2d at 683, the practical harm resulting from
the trial court’s error is a challenge to articulate, see N.C. Gen. Stat. § 15A-1443(a).
We, therefore, explain our reasoning below and invite the Supreme Court to clarify
the issue.
We struggle to envision adverse collateral consequences under these
circumstances. See Etheridge, 319 N.C. at 50, 352 S.E.2d at 683. Because only the
highest convicted offense from one calendar week is counted for any hypothetical
future sentences, Defendant’s prior record level remains the same regardless of
whether the jury convicted her once or twice for the firearm possession. See N.C.
Gen. Stat. § 15A-1340.14(d). Thus, the consolidated judgment does not appear to
affect any future convictions that Defendant may face. See Etheridge, 319 N.C. at 50,
352 S.E.2d at 683.
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Because Defendant’s sentence potentially implicates constitutional concerns,
however, we hesitate to conclude that the trial court’s error was harmless beyond a
reasonable doubt. See N.C. Gen. Stat. § 15A-1443(b). Indeed, the issue is probably
moot, as Defendant’s probation has likely ended. See State v. Godbey, 241 N.C. App.
114, 118, 772 S.E.2d 123, 126 (2015) (concluding that, “although the trial court erred,
the issue is now moot, given that defendant has served his sentence and cannot be
resentenced.”).
Generally, “ ‘this Court will not hear an appeal when the subject matter of the
litigation . . . has ceased to exist.’ ” In re Swindell, 326 N.C. 473, 474, 390 S.E.2d 134,
135 (1990) (quoting Kendrick v. Cain, 272 N.C. 719, 722, 159 S.E.2d 33, 35 (1968)).
“Once a defendant is released from custody, ‘the subject matter of [a sentencing error]
has ceased to exist and the issue is moot.’ ” State v. Stover, 200 N.C. App. 506, 509,
685 S.E.2d 127, 130 (2009) (quoting In re Swindell, 326 N.C. at 475, 390 S.E.2d at
135).
Here, the issue with Defendant’s sentence may have ceased to exist. See In re
Swindell, 326 N.C. at 474, 390 S.E.2d at 135. If Defendant completed her
probationary term successfully, then the sentencing issue is moot. See Godbey, 241
N.C. App. at 118, 772 S.E.2d at 126. If the trial court extended, modified, or revoked
Defendant’s probation, however, the sentencing issue may not be moot. See Stover,
200 N.C. App. at 509, 685 S.E.2d at 130. Accordingly, we authorize the trial court to
resentence Defendant if warranted under the circumstances.
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V. Conclusion
We conclude the trial court erred by sentencing Defendant to twenty-four
months of supervised probation without making a specific finding that a longer period
of probation was necessary, but it did not err by mentioning the items seized from
Defendant’s vehicle despite her acquittal from the related charges. We also conclude
that the trial court erred by entering judgment on Defendant’s two convictions for
carrying a concealed firearm. We, therefore, vacate the consolidated judgment and
remand to arrest judgment on one count. If the sentencing issue is moot, the trial
court must enter judgment on the other count. If the sentencing issue is not moot,
however, the trial court must resentence.
VACATED AND REMANDED.
Judges TYSON and ARROWOOD concur.
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