State v. Haskins

• Decision Date: 16 September 2003
• Docket Number: No. COA02-1225.,COA02-1225.
• Citation: 160 NC App. 349,585 S.E.2d 766
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Gerald HASKINS, Defendant.

585 S.E.2d 766

160 NC App. 349

STATE of North Carolina v. Gerald HASKINS, Defendant.

No. COA02-1225.

Court of Appeals of North Carolina.

September 16, 2003.

Attorney General Roy Cooper, by Assistant Attorney General Sandra Wallace-Smith, for the State.

Miles & Montgomery, by Mark Montgomery, Durham, for the defendant-appellant.

WYNN, Judge.

By this appeal, defendant, Gerald Haskins, presents the following issues for our consideration: (I) Whether the trial court's failure to instruct on criminal intent constitutes error; (II) Whether the trial court's failure to give an instruction on the affirmative defense of reasonable necessity and to allow defense counsel to read the law of necessity to the jury constituted reversible error; and (III) Whether the trial court erroneously concluded as a matter of law that defendant was not a state actor exempt from the prohibitions of G.S. § 14-269.2. After careful review, we find no error in the proceedings below.

On the morning of 22 March 2001, defendant, a licensed Bail Runner, was in pursuit of Lakendris McAdoo, a fugitive facing felony drug charges.¹ McAdoo had failed to appear for a court appearance and a court order had been issued for his arrest. Defendant worked for the bonding company that had issued McAdoo's bond. He, along with three other bondsmen, searched for McAdoo intending to arrest him under their statutory authority as Bondsmen. Each of the bondsmen wore jackets with the word "Bondsmen" written across the back.

Pertinent to this appeal, defendant pursued McAdoo to an elementary school, entered the school with a gun in his holster, asked a faculty member if she had seen anyone, and then exited the back of the school. Meanwhile, school personnel called the Orange County Sheriff's Department and placed the school on "lockdown," a procedure in which the teachers keep the children in locked classrooms for their safety. Shortly thereafter, an investigator arrived at the school, approached defendant, retrieved his weapon and arrested him for possessing a weapon on educational property in violation of G.S. § 14-269.2(b).

Following his conviction of the charged offense by a jury, the trial court sentenced defendant to a suspended sentence of 3 to 4 months, conditioned upon 24 months of supervised probation and payment of certain monetary conditions. Defendant appeals.

On appeal, defendant first contends that although N.C. Gen.Stat. § 14-269.2 does not explicitly contain an element of criminal intent or mens rea, willfulness or unlawfulness should be read into the statute because, as stated by the United States Supreme Court in Morissette v. U.S., strict liability offenses are disfavored in our criminal jurisprudence. We disagree.

N.C. Gen.Stat. § 14-269.2 (2001) in pertinent part states:

Weapons on campus or other educational property.

(b) It shall be a Class I felony for any person 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. However, this subsection does not apply to a BB gun, stun gun, air rifle, or air pistol.

The plain terms of this provision do not include any reference to criminal intent or mens rea. "It is true that an act may become criminal only by reason of the intent with which it is done, but the performance of an act which is expressly forbidden by statute may constitute an offense in itself without regard to the question of intent." State v. Lattimore, 201 N.C. 32, 34, 158 S.E. 741, 742 (1931). "The Legislature, unless it is limited by constitutional provisions imposed by the State and Federal Constitutions, has the inherent power to define and punish any act as a crime, because it is indisputedly a part of the police power of the State." State v. Anderson, 3 N.C.App. 124, 126, 164 S.E.2d 48, 50 (1968).

Defendant points to the U.S. Supreme Court's decision in Morissette v. U.S., 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), as standing for the proposition that there can be no criminal liability without criminal intent. However, in Morissette, the Court considered the absence of criminal intent in a statutory federal crime whose elements contained terms borrowed from the common law. The Court subsequently interpreted its holding in Morissette to mean that,

where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.

United States v. Freed, 401 U.S. 601, 607-08, 91 S.Ct. 1112, 1117, 28 L.Ed.2d 356, 361-62 (1971). Moreover, in Morissette, the Court recognized that although "the presence of a vicious will or mens rea was a long requirement of criminal responsibility, ... the list of exceptions grew, especially in the expanding regulatory area involving activities affecting public health, safety, and welfare." Id.; see also Morissette, 342 U.S. at 252-259,

72 S.Ct. at 244-48,

96 L.Ed. at 295-298. Thus, the U.S. Supreme Court has upheld the imposition of criminal penalties without the finding of criminal intent on the part of the violator. See id. (discussing U.S. v. Dotterweich, 320 U.S. 277, 284, 64 S.Ct. 134, 138, 88 L.Ed. 48, 53).

The statute in this case, N.C. Gen.Stat. § 14-269.2, was enacted for the purpose of "deter[ring] students and others from bringing any type of gun onto school grounds" because of "the increased necessity for safety in our schools." In re Cowley, 120 N.C.App. 274, 276, 461 S.E.2d 804, 806 (1995). Accordingly, Morissette does not require the insertion of a criminal intent into N.C. Gen.Stat. § 14-269.2. See also State v. Yarboro, 194 N.C. 498, 503, 140 S.E. 216, 218 (1927)(stating that "by virtue of the police power the law-making body may enact laws for the enjoyment of private and social life, the beneficial use of property, the security of the social order, and the prevention and punishment of injuries, as well as for the protection of the life, safety, health, morals, and comfort of the citizen").

Defendant also argues without a mens rea element, N.C. Gen.Stat. § 14-269.2 offends the Equal Protection Clause of the North Carolina and United States Constitution.

The Equal Protection Clause of Article I, § 19 of the North Carolina Constitution and the Equal Protection Clause of § 1 of the Fourteenth Amendment to the United States Constitution forbid North Carolina from denying any person equal protection of the laws.... To determine if a regulation violates either of these clauses, North Carolina courts apply the same test. The court must first determine which of several tiers of scrutiny should be utilized. Then it must determine whether the regulation meets the relevant standard of review. Strict scrutiny applies when a regulation classifies persons on the basis of certain designated suspect characteristics or when it infringes on the ability of some persons to exercise a fundamental right. If a [statute] receives strict scrutiny, then the state must prove that the classification is necessary to advance a compelling government interest; otherwise, the statute is invalid. Other classifications, including gender and illegitimacy, trigger intermediate scrutiny, which requires the state to prove that the regulation is substantially related to an important government interest. If a [statute] draws any other classification, it receives only rational-basis scrutiny, and the party challenging the [statute] must show that it bears no rational relationship to any legitimate government interest. If the party cannot so prove, the regulation is valid.

DOT v. Rowe, 353 N.C. 671, 675, 549 S.E.2d 203, 207 (2001).

In this case, defendant contends N.C. Gen. Stat. § 14-269.2 "without mens rea would violate Equal Protection by making irrational distinctions between those guilty of a felony and those not." As an example, defendant argues a school custodian cleaning the building at night carrying a weapon for protection would be guilty of a Class I felony whereas a volunteer fireman wielding a shotgun during an elementary school fire prevention talk would be immune from prosecution. In other words, defendant argues N.C. Gen.Stat. § 14-269.2 creates a constitutionally impermissible distinction between those persons exempt from prosecution in subsection (g) and those persons lacking criminal intent but yet subject to prosecution. Such a distinction receives rational basis review, which requires the party challenging the statute to show that it bears no rational relationship to any legitimate government interest. See id. If the party cannot so prove, the regulation is valid. See id.

As stated, N.C. Gen.Stat. § 14-269.2 was enacted for the purpose of "deter[ring] students and others from bringing any type of gun onto school grounds" because of "the increased necessity for safety in our schools." Cowley, 120 N.C.App. at 276,461 S.E.2d at 806. Thus, any person who possesses or carries, 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 is guilty of a Class I felony. See N.C. Gen. Stat. § 14-269.2. However, G.S. § 14-269.2 does not apply to (1) a weapon used solely for education or school sanctioned ceremonial purposes, (2) a weapon used in a school-approved program conducted under the supervision of an adult whose supervision has been approved by the school authority, (3) firefighters, (4) emergency service personnel, (5) N.C. Forest Service personnel, (6) certain people, such as the military, law enforcement and the national guard, acting in their official capacity, (7) any private police employed by an educational institution when acting in the discharge of official...