IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-322
Filed: 21 November 2017
Mitchell County, No. 16 CRS 50024
STATE OF NORTH CAROLINA
v.
VICTOR MANUEL FERNANDEZ, Defendant.
Appeal by Defendant from judgment entered 16 November 2016 by Judge Gary
M. Gavenus in Mitchell County Superior Court. Heard in the Court of Appeals 18
October 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Rajeev K.
Premakumar, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Paul M.
Green, for Defendant-Appellant.
HUNTER, JR., Robert N., Judge.
Victor Manuel Fernandez (“Defendant”) appeals his conviction of possession of
a firearm by a felon. Defendant contends N.C. Gen. Stat. § 14-415.1, which generally
prohibits felons from possessing firearms, was unconstitutional as applied to him.
We disagree and find no error in the trial court’s judgment.
I. Factual and Procedural Background
STATE V. FERNANDEZ
Opinion of the Court
On 19 September 2016, Defendant was indicted for possession of a firearm by
a felon under N.C. Gen. Stat. § 14-415.1 (2016).
On 10 October 2016, Defendant filed a motion to dismiss the indictment
contending N.C. Gen. Stat. § 14-415.1 is unconstitutional as applied to him. In the
alternative, Defendant contended the trial court should suppress the results of an
illegal search. The State did not file a written response to this motion. Counsel for
Defendant subsequently moved to withdraw for health reasons. On 13 October 2016,
the trial court allowed defense counsel’s motion to withdraw and appointed another
attorney.
Defendant’s case was called for trial on 14 November 2016. On that same day,
Defendant filed a motion to suppress the State’s evidence on the grounds the evidence
“was obtained in violation of federal and state constitutional rights to be free from
unreasonable searches and seizures under the Fourth and Fourteenth Amendments
to the United States Constitution and Article I, Sec. 20 of the North Carolina
Constitution.” Defendant also alleged the State obtained its evidence in violation of
N.C. Gen. Stat. § 15A-974.
After jury selection, the trial court excused the jurors to address these pre-trial
matters with counsel. Defendant first asked the court to dismiss the case based on
the State’s failure to respond to Defendant’s motion to dismiss. The trial court
responded Defendant’s prior counsel failed to sign Defendant’s motion to dismiss.
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The trial court stated, “[n]ot only is it not signed . . . I am going to deny it. I will find
that the statute itself is constitutional, and it is constitutional as it applies to this
defendant.”
The trial court next addressed Defendant’s motion to suppress based on the
Fourth Amendment. The State called Deputy Josh Biddix (“Biddix”) with the
Mitchell County Sheriff’s Office. Defendant called the Sheriff’s Office to report
someone had broken into his home. While personnel from the Sheriff’s Office spoke
with Defendant, Biddix recognized Defendant’s name and thought he had “a status
as a convicted felon.” Biddix checked his computer “before we went any further.”
Defendant reported “a couple of rifles” were stolen, along with other valuables and
cash. After confirming Defendant’s status as a convicted felon, Biddix explained to
Defendant “we could not return the guns to him even if we were able to find the stolen
weapons.”
Biddix and Deputy Hobson (“Hobson”) went to Defendant’s residence to
investigate the break-in:
[Defendant] came to the door, asked us to come in,
told us what had happened, showed us where the back door
to his residence had been pushed open, kicked in, and then
started to show us where different things had been taken
from in the house, uh, some of his valuables, showed us
where they’d been stored before they had been stolen.
The two officers and Defendant made their way to Defendant’s bedroom. Once
in the bedroom, Hobson “pointed out an object to [Biddix] on the floor . . . which
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Opinion of the Court
[Biddix] was almost, about ready to step on at that point.” Biddix stated “[i]t was
partially covered by clothes but enough of it was sticking out to see . . . a shotgun.”
Biddix first finished his report to give to a Detective, and then “placed [Defendant] in
handcuffs and fingerprinted him.” Biddix next took Defendant to a magistrate.
During cross, Biddix stated he did not have a search warrant.
The State rested, and Defendant offered no evidence. The State then argued
for the dismissal of Defendant’s motion to suppress. The State contended “this is not
a search as contemplated by the Fourth Amendment. This was law enforcement
investigating a crime that [Defendant] had reported. Counsel for Defendant
responded:
[A] search is invalid if there’s no search warrant. That’s
where the courts start, at an invalid search. And Your
Honor, this is absent exigent circumstances which State’s
failed to prove. They could’ve gotten a warrant, easily gone
out and got a search warrant, chose not to do so. My client
shouldn’t have to suffer for that.
....
If they move something to determine its nature, even
though it’s, even though the deputy said that she seen [sic]
the butt sticking out, still had to move his clothing, that
creates a search within the meaning of the Fourth
Amendment. This was a search, invalid without a search
warrant, and we’d ask the Court to dismiss.
The trial court denied Defendant’s motion to suppress on the ground “[o]nce the
officer observed it, she certainly had the right to pick up what she determined to be
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Opinion of the Court
a rifle for her own protection.”
The trial began the following morning. The State first called Hobson. She
recalled Defendant reporting a breaking and entering, and Defendant’s request for
the Sheriff’s Department to come to his home to investigate. While on the telephone
with Hobson, Defendant advised Hobson “that he knew that he was a convicted
felon[.]” Counsel for Defendant objected, and the trial court excused the jury.
Counsel for Defendant “object[ed] to any statements regarding prior bad acts,
anything that would indicate a bad act, possession of a firearm by a felon, anything
of that nature.” Defense based this objection on “Rule 404(b), due process, the Fifth
and Fourteenth Amendment, [and] Article I, Section 19 of the North Carolina
Constitution.” The trial court responded the witness’s testimony “was that the
defendant acknowledged to her that he knew he was a convicted felon, and that’s a
statement of your client. That’s not her statement.” Defendant “just made an
admission.” The trial court concluded, “as far as the objection to testimony as to what
the defendant said, that objection is overruled.”
Hobson continued her testimony and described entering Defendant’s bedroom
as part of her investigation of the breaking and entering. “[T]he room was in pretty
much disarray. There was clothing everywhere and piled up clothing as well.” Under
the clothing, Hobson saw part of a shotgun butt and barrel. “I picked the shotgun up
out of the floor for my safety and advised the lieutenant we had a firearm in
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Opinion of the Court
possession.” Hobson asked Defendant if the firearm belonged to him, and Defendant
answered “yes.”
The State next called Biddix. Biddix recognized Defendant’s name from
Defendant’s felony conviction approximately ten years ago. Outside the jury’s
presence, the State noted it did not have “any reason to call anyone from the clerk’s
office. [Defense counsel and the State] agree[d] [Defendant] doesn’t have any issue
with us just admitting the certified judgment and allowing Lieutenant Biddix to
testify as to his involvement in [Defendant’s prior felony].”
The jury returned. Biddix assisted in an investigation over ten years ago, and
as a result, Defendant was charged with having a weapon of mass destruction. “It
was actually a sawed-off shotgun.” Biddix confirmed Defendant pled guilty to that
charge.
Prior to Biddix’s arrival at Defendant’s residence, Biddix informed Defendant
over the telephone Defendant’s stolen guns could not be returned because Defendant
was a convicted felon. Therefore, Defendant “knew better than to have a gun in the
house.” Once Biddix arrived at Defendant’s residence, Biddix asked Defendant if he
had any other firearms in the house. Defendant answered no.
The State then introduced a certified copy of the Mitchell County Judgment
where Defendant was previously convicted of felony possession of a weapon of mass
destruction.
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STATE V. FERNANDEZ
Opinion of the Court
The State rested. The trial court excused the jury and defense counsel moved
“that the evidence was insufficient on every element of the offense in violation of the
Sixth and Fourteenth Amendments.” Defendant also moved to “dismiss based upon
the Second Amendment of the United States Constitution, [and] Article I, Section 30
of the North Carolina Constitution. The defendant contends that North Carolina
General Statute 14-415.1 is unconstitutional as applied to Defendant.” Defense
counsel concluded by stating, “[a] written motion is in the file, and the defendant does
not wish to be heard further.”
The State did not wish to be heard on the motion to dismiss.
The trial court stated, “the motion to dismiss is denied on all the grounds.”
After the court satisfied itself Defendant understood his right not to testify,
defense counsel “renew[ed] our motions as I stated earlier at the end of all the
evidence.”
After closing arguments, the trial court instructed the jury. Following
deliberations, the jury returned a verdict of guilty of possession of a firearm by a felon.
As to sentencing, the trial court stated:
[I]n this matter, the defendant having been found guilty by
a jury of possession of a firearm by a felon, that is a class
G felony, Court finds it’s been stipulated to by the parties
that the defendant is a prior record level III having six
points. The Court makes no findings because the prison
term imposed is within the presumptive range of
sentencing.
It’s the judgment of the Court the defendant be
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Opinion of the Court
incarcerated for a minimum of 17, a maximum of 30
months in the North Carolina Department of Adult
Corrections.
Defendant appealed in open court.
II. Standard of Review
“The standard of review for questions concerning constitutional rights is de
novo.” Furthermore, when considering the constitutionality of a statute or act there
is a presumption in favor of constitutionality, and all doubts must be resolved in favor
of the act.” Row v. Row, 185 N.C. App. 450, 454-55, 650 S.E.2d 1, 4 (2007) (citations,
quotation marks, and ellipses omitted), disc. review denied, 362 N.C. 238, 659 S.E.2d
741, cert. denied, 555 U.S. 824, 129 S. Ct. 144, 172 L. Ed. 2d 39 (2008).
Our State Supreme Court has held “regulation of the right to bear arms is a
proper exercise of the General Assembly’s police power, but that any regulation must
be at least ‘reasonable and not prohibitive, and must bear a fair relation to the
preservation of the public peace and safety.’” Britt v. State, 363 N.C. 546, 549, 681
S.E.2d 320, 322 (2009) (quoting State v. Dawson, 272 N.C. 535, 547, 159 S.E.2d 1, 10
(1968)).
The United States Supreme Court declined to establish a specific level of
scrutiny for regulations that restrict Second Amendment rights. See District of
Columbia v. Heller, 554 U.S. 570, 635, 128 S. Ct. 2783, 2821, 171 L. Ed. 2d 637, 683
(2008). “The Fourth Circuit Court of Appeals has consistently applied intermediate
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Opinion of the Court
scrutiny.” Johnston v. State, 224 N.C. App. 282, 294, 735 S.E.2d 859, 869 (2012), aff’d
per curiam, 367 N.C. 164, 749 S.E.2d 278 (2013); See, e.g., U.S. v. Masciandaro, 638
F.3d 458, 471 (4th Cir. 2011), cert. denied, 565 U.S. 1058, 132 S. Ct. 756, 181 L. Ed.
2d 482 (2011). Intermediate scrutiny requires “the asserted governmental end to be
more than just legitimate, either ‘significant,’ ‘substantial,’ or ‘important’ . . . [and]
require the fit between the challenged regulation and the asserted objective be
reasonable, not perfect.” Johnston at 294, 735 S.E.2d at 859 (quoting U.S. v.
Marzzarella, 614 F.3d 85, 98 (3rd Cir. 2010), cert. denied, 562 U.S. 1158, 131 S. Ct.
958, 178 L. Ed. 2d 790 (2011)) (alterations in original).
III. Analysis
Defendant contends the trial court erred in denying his motion to dismiss on
the ground his individual right to keep and bear arms under the Second and
Fourteenth Amendments of the United States Constitution and under Article I,
Section 30 of the North Carolina Constitution is a fundamental right that has been
violated because N.C. Gen. Stat. § 14-415.1 prohibits him from keeping firearms in
his home. Defendant challenges N.C. Gen. Stat. § 14-415.1, the Felony Firearms Act,
as applied to him.
N.C. Gen. Stat. § 14-415.1 (2017) provides:
(a) It shall be unlawful for any person who has been
convicted of a felony to purchase, own, possess, or have in
his custody, care, or control any firearm or any weapon of
mass death and destruction as defined in G.S. 14-288.8(c).
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STATE V. FERNANDEZ
Opinion of the Court
For the purposes of this section, a firearm is (i) any weapon,
including a starter gun, which will or is designed to or may
readily be converted to expel a projectile by the action of an
explosive, or its frame or receiver, or (ii) any firearm
muffler or firearm silencer. This section does not apply to
antique firearm, as defined in G.S. 14-409.11.
A. Defendant’s Federal Constitutional Claim
In Johnston this Court addressed whether the Felony Firearms Act was
constitutional under the Second Amendment of the Federal Constitution as applied
to the plaintiff. Id. at 294, 735 S.E.2d at 869. This Court applied a two-prong test
articulated by the Fourth Circuit in U.S. v. Chester, 628 F.3d 673 (4th Cir. 2010). As
to the first prong:
The first question is whether the challenged law imposes a
burden on conduct falling within the scope of the Second
Amendment’s guarantee. This historical inquiry seeks to
determine whether the conduct at issue was understood to
be within the scope of the right at the time of ratification.
If it was not, then the challenged law is valid. If the
regulation burdens conduct that was within the Second
Amendment’s scope at the time the Second Amendment
was ratified, then we move to the second step of applying
an appropriate form of means-end scrutiny.
Johnston at 290, 735 S.E.2d at 866-67 (quoting Chester, 628 F.3d at 680) (internal
citations and quotation marks omitted). As to the second prong, “the State must
demonstrate a substantial government objective.” Johnston at 295, 735 S.E.2d at
869. Additionally, “the State must demonstrate a reasonable fit between the Act and
the objective of ensuring the public safety.” Id. at 295, 735 S.E.2d at 869. However,
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in Johnston, this Court ultimately could not conclude, based on the record before it,
“that the State carried the burden of establishing a reasonable fit and a substantial
relationship between the important goal of ensuring public safety and the Act.” Id.
at 295, 735 S.E.2d at 870.
Since this Court’s opinion in Johnston, the Fourth Circuit “streamlined” its
analysis when “a presumptively lawful regulatory measure is under review.”
Hamilton v. Pallozzi, 848 F.3d 614, 623 (4th Cir. 2017), petition for cert. filed, ___
U.S.L.W. ___ (U.S. June 20, 2017) (No. 16-1517).1 Under this “streamlined” portion
of the analysis, “[the Fourth Circuit] effectively supplant[s] the historical inquiry with
the more direct question of whether the challenger’s conduct is within the protected
Second Amendment right of ‘law-abiding, responsible citizens to use arms in defense
of hearth and home.’” Hamilton at 624 (quoting District of Columbia v. Heller, 554
U.S. 570, 635, 128 S. Ct. 2783, 2821, 171 L. Ed. 2d 637, 683 ((2008)). The Fourth
Circuit then concluded, “we simply hold that conviction of a felony necessarily
removes one from the class of ‘law-abiding, responsible citizens’ for the purposes of
the Second Amendment.” Hamilton at 626. That Court reasoned:
Where the sovereign has labeled the crime a felony, it
represents the sovereign’s determination that the crime
reflects “grave misjudgment and maladjustment,” as
recognized by the district court. A felon cannot be returned
1 Although decisions from the Federal Circuit Court of Appeals are not binding on this Court,
we may consider such decisions as persuasive authority. See CarolinaPower & Light Co. v.
Employment Sec. Comm’n of N.C., 363 N.C. 562, 569, 681 S.E.2d 776, 780 (2009) (noting that while
not binding, a decision from another jurisdiction was nonetheless “instructive”).
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to the category of “law-abiding, responsible citizens” for the
purposes of the Second Amendment and so cannot succeed
at step one of the Chester inquiry, unless the felony
conviction is pardoned or the law defining the crime of
conviction is found unconstitutional or otherwise unlawful.
Id. at 626.
In Hamilton, the plaintiff sought a declaration as to whether Maryland’s
firearms regulatory scheme prohibiting anyone who has been “convicted of a
disqualifying crime”2 from possessing a firearm violated the Second Amendment as
applied to him. Id. at 618. There, the Fourth Circuit stated, [plaintiff] is a state law
felon, has not received a pardon, and the basis for his conviction has not been declared
unconstitutional or otherwise unlawful. As such, he cannot state a claim for an as-
applied Second Amendment to Maryland’s regulatory scheme for handguns and long
guns.” Id. at 628. Therefore, the Fourth Circuit concluded:
[A] state law felon cannot pass the first step of the Chester
inquiry when bringing an as-applied challenge to a law
disarming felons, unless that person has received a pardon
or the law forming the basis of conviction has been declared
unconstitutional or otherwise unlawful. Relatedly, we hold
that evidence of rehabilitation, the likelihood of recidivism,
and the passage of time may not be considered at the first
step of the Chester inquiry as a result.
Id. at 629. Like the plaintiff in Hamilton, Defendant in this case is a convicted felon.
He therefore cannot show he is a “law-abiding, responsible citizen” under Hamilton,
2 See Md. Code Ann., Pub. Safety §§ 5-133(b)(1), 5-205(b)(1) (2016).
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or rebut the challenged Act’s presumption of lawfulness. Under our de novo review,
Defendant cannot pass the first prong of the Hamilton analysis. We need not address
the second prong of the analysis.
B. Defendant’s State Constitutional Claim
As for an as-applied State constitutional challenge to N.C. Gen. Stat. § 14-
415.1, this Court “must determine whether, as applied to [Defendant], N.C.G.S. § 14-
415.1 is a reasonable regulation.” Britt at 549, 681 S.E.2d at 322 (2009). In doing so,
this Court considers the following five factors:
(1) the type of felony convictions, particularly whether they
“involved violence or the threat of violence[,]” (2) the
remoteness in time of the felony convictions; (3) the felon’s
history of “lawabiding conduct since [the] crime,” (4) the
felon’s history of “responsible, lawful firearm possession”
during a time period when possession of firearms was not
prohibited, and (5) the felon’s “assiduous and proactive
compliance with the 2004 amendment.”
State v. Whitaker, 201 N.C. App. 190, 205, 689 S.E.2d 395, 404 (2009) (brackets
omitted) (citing Britt at 550, 681 S.E.2d at 323).
This Court has held that in order to prevail on an as-applied constitutional
challenge to N.C. Gen. Stat. § 14-415.1, the party challenging the statute must
present sufficient evidence to allow the trial court to make findings of fact relevant to
the five above-quoted factors enumerated in Britt. State v. Buddington, 210 N.C.
App. 252, 255, 707 S.E.2d 655, 657 (2011). When the trial court fails to make findings
of fact, this Court may still analyze defendant’s as-applied challenge to N.C. Gen.
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Stat. § 14-415.1 when there is uncontroverted evidence in the record “as to
defendant’s prior convictions, his history of a lack of lawabiding conduct since [the]
crime, and of firearm possession, and his compliance with the 2004 amendment.”
Whitaker at 205, 689 S.E.2d at 404 (internal citation and quotation marks excluded).
Applying the five factors in this case, N.C. Gen. Stat. § 14-415.1 is
constitutional as applied to Defendant. First, we consider whether Defendant’s prior
felony conviction involved violence or a threat of violence. Whitaker at 205, 689
S.E.2d at 404. The record reveals Defendant was convicted of possessing a sawed-off
shotgun in 2005, a weapon of mass destruction. Second, although Defendant’s felony
conviction was eleven years ago, this Court has upheld the statute as constitutional
as applied to a defendant where there was a span of eighteen years between the prior
felony conviction and the possession charge. See State v. Bonetsky ___ N.C. App. ___,
___, 784 S.E.2d 637, 641, disc. review denied, ___ N.C. ___, 786 S.E.2d 917 (2016). As
to the third factor, the felon’s history of law-abiding conduct, Defendant has been
convicted of driving while impaired, simple assault and assault on a female.
Defendant also has two convictions for driving without an operator’s license, one
charge of being intoxicated and disruptive, felony possession of a weapon of mass
destruction, and most recently, fishing without a license. This Court has assessed
previous misdemeanor convictions as part of a “blatant disregard for the law.”
Whitaker at 206, 689 S.E.2d at 404. The fourth factor related to the felon’s history of
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lawful firearm possession. Here, the record establishes Defendant was unlawfully
possessing at least one firearm since his conviction in 2005. As to the fifth factor,
compliance with N.C. Gen. Stat. § 14-415.1, Defendant concedes he cannot claim
compliance with that statute. In considering these five Britt factors, we cannot
conclude N.C. Gen. Stat. § 14-415.1 is unconstitutional as applied to Defendant.
As to Defendant, N.C. Gen. Stat. § 14-415.1 is a reasonable regulation which
is “fairly related to the preservation of public peace and safety.” Britt at 550, 681
S.E.2d at 323. It is not unreasonable to prohibit a convicted felon who has
subsequently violated the law on several occasions from possessing a firearm in order
to preserve “public peace and safety.” Id. at 550, 681 S.E.2d at 323. N.C. Gen. Stat.
§ 14-415.1 is not unconstitutional under our State Constitution as applied to
Defendant.
NO ERROR.
Judges STROUD and TYSON concur.
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