State v. Fernandez

• Decision Date: 21 November 2017
• Docket Number: No. COA17-322,COA17-322
• Citation: 808 S.E.2d 362,256 N.C.App. 539
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Victor Manuel FERNANDEZ, Defendant.

256 N.C.App. 539

808 S.E.2d 362

STATE of North Carolina

v.Victor Manuel FERNANDEZ, Defendant.

No. COA17-322

Court of Appeals of North Carolina.

Filed: November 21, 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

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. 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 [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 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 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.

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 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...