                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
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                                  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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[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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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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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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                                    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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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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                                   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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                                 Opinion of the Court



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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