# Johnston v. State

> Court of Appeals of North Carolina · December 18, 2012 · 224 N.C. App. 282

URL: https://www.frixlaw.com/law-library/cases/8901097

## Case

- **Full name:** RICHARD M. JOHNSTON v. THE STATE OF NORTH CAROLINA
- **Court:** Court of Appeals of North Carolina
- **Decided:** December 18, 2012
- **Citations:** 224 N.C. App. 282; 735 S.E.2d 859; 2012 N.C. App. LEXIS 1447
- **Precedential status:** Published
- **Opinion:** Concurring in part by Beasley
- **Judges:** Beasley, Calabria, Steelman
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8901097

## How later opinions describe it (automated extraction)

- explaining that in N.C. Gen. Stat. § 14-415.1, “[o]ur legislature mandated that any felon found in possession of a firearm is subject to criminal liability” (emphasis added)
- noting 31-year-old predicate felony “appears to weigh in favor of plaintiff’s claim” but reversing and remanding based on the trial court making insufficient findings to resolve constitutional claim

## Opinion text

BEASLEY, Judge
concurring in part and dissenting in part.
I agree with the majority that this appeal, while interlocutory, is properly before us as affecting a substantial right and that the trial court had subject matter jurisdiction to hear this case. I also agree with the majority’s reversal of the trial court’s ruling on the procedural due process claims. I further agree with the majority that, with regard to the substantive due process claims under the U.S. Constitution, we should remand pursuant to United States v. Chester, 628 F.3d 673 (4th Cir. 2010), to determine whether the State has met its burden under intermediate scrutiny. 1 However, because I believe that Plaintiff’s substantive due process claims under the North Carolina Constitution fail, I respectfully dissent.
In its analysis of Plaintiff’s substantive due process claims under the North Carolina Constitution, the trial court relied upon the factors put forth in Britt and reaffirmed in Baysden v. State, _ N.C. App. _, 718 S.E.2d 699 (2011), to reach its conclusion that the statute is unconstitutional as applied to Plaintiff in this case. See Britt v. State, 363 N.C. 546, 550 , 681 S.E.2d 320, 323 (2009); Baysden , _N.C. App. at _, 718 S.E.2d at 703 . I agree with the majority that Baysden controls, despite my dissenting opinion therein. However, even if the statute may be unconstitutional as applied to a particular plaintiff, Plaintiff subjudice surely should not benefit from such exception, granting him unbridled constitutional protection, for several reasons. 2
*312 The factors utilized by our Supreme Court in Britt were applicable in determining whether the statute is constitutional as applied to an individual who has not displayed either a violent tendency or a repetitive disregard for the laws of this state. Britt, 363 N.C. at 550 , 681 S.E.2d at 323 . In Baysden , our Court rejected the premise that “the fact that Plaintiff has two, rather than one, prior felony convictions demonstrates the appropriateness of a finding in the State’s favor.” Baysden, _ N.C. App. at _, 718 S.E.2d at 705 . Citing Britt and Whitaker, the Court noted that “the appropriate inquiry requires an analysis of the number, age, and severity of the offenses for which the litigant has been convicted.” Id. at __, 718 S.E.2d at 705-06 . In Baysden , our Court held that in evaluating “ ‘the facts of [P]laintiff’s crime [s], his long post-conviction history of respect for the law, the absence of any evidence of violence by the [P]laintiff, and the lack of any exception or possible relief from the statute’s operation,’ ” the as applied challenge must be upheld. Id. at _, 718 S.E.2d at 706 (alterations in original)(quoting Britt, 363 N.C. at 550 , 681 S.E.2d at 323 ).
Plaintiff sub judice was convicted of ten felonies. In Caswell County, North Carolina, Plaintiff was convicted of the following felonies:
80 CRS 1186 Fraudulently Set Fire to Dwelling House;
80 CRS 1187 Conspiracy;
80 CRS 1188 False Statement to Procure;
81 CRS 322 Conspiracy to Receive;
81 CRS 323 Receiving;
81 CRS 324 Conspiracy to Commit Larceny;
81 CRS 325 Accessory Before Fact of Larceny;
81 CRS 1554 Receiving.
In Rockingham County, Plaintiff was convicted of the following felonies:
77 CRS 1697 Conspiracy to Commit Grand Larceny;
77 CRS 1699 Receiving Stolen Property.
Our Court in Baysden declared that the number of felonies is not dispositive of a felon’s right to legally possess a firearm. Id. at _, 718 S.E.2d at 705-06 . Further, our Court noted that we should be persuaded by “ ‘uncontested lifelong non-violence towards other citi *313 zens.’ ” Id. at _, 718 S.E.2d at 705 (quoting Britt, 363 N.C. at 550 , 681 S.E.2d at 323 ). Under the majority’s analysis, it appears that there is no limit to the number of felony convictions permissible for a felon to lawfully possess a firearm under the statute. If this statute is in violation of the constitution as applied to this Plaintiff, it is difficult to imagine to whom, regardless of the number of felony convictions accrued, it applies. I would proffer that Plaintiff’s ten felony convictions are excessive by any means.
Further, I would contend that Plaintiff’s previous convictions were violent. The majority in Baysden concluded that “statutory definitions [do not] control our determination of’ which crimes are violent and we should instead examine the specific conduct involved in each conviction. Id. at _, 718 S.E.2d at 705 . Such a rule requires us to look at the circumstances of the crime and not rely solely on the statutory definitions; but it does not preclude consideration of statutory definitions, as these provide the backbone of those circumstances. One may not be convicted of the crime without performing each of the statutorily required elements, thus the conviction itself provides the basic circumstances of the act in question. I would nonetheless contend that the circumstances required for a conviction of fraudulently burning a dwelling are necessarily violent.
By statute, fraudulently burning a dwelling occurs
[i]f any person, being the occupant of any building used as a dwelling house, whether such person be the owner thereof or not, or, being the owner of any building designed or intended as a dwelling house, shall wantonly and willfully or for a fraudulent purpose set fire to or burn or cause to be burned, or aid, counsel or procure the burning of such building.
N.C. Gen. Stat. § 14-65 (2011). Our Supreme Court has held that
for a burning of a dwelling to be criminal under G.S. 14-65 as a willful and wanton burning, it must be shown to have been done intentionally, without legal excuse or justification, and with the knowledge that the act will endanger the rights or safety of others or with reasonable grounds to believe that the rights or safety of others may be endangered.
*314 State v. Brackett, 306 N.C. 138, 142 , 291 S.E.2d 660, 662-63 (1982). Thus, where the offense is willful and wanton, it requires and recognizes a risk to human safety and life. Thus, the mere use of fire to burn a home, or anything for that matter, when one is merely acting with a fraudulent purpose, is, at the very least, a dangerous act per se.
When these concepts are combined in the context of using fire to destroy a house for pecuniary gain with disregard for the inherent risk to life and safety, whether we draw upon the statutory definitions' of what should be considered a violent or non-violent crime, see N.C. Gen. Stat. § 14-415.4 , or disregard it as our precedent now requires, I see no conclusion other than that such an act is violent. Even where we completely disregard any statutory guidance, I contend that the very nature of fire and of the act of setting fire to a home, for whatever purpose, is violent per se.
The majority sub judice regards this dissent as ignoring the precedent set by Baysden because I engage in the above analysis to determine whether Plaintiff’s prior conviction was violent. However, I believe such an analysis, rather than remanding, is precisely what Baysden requires of this Court. Baysden does not remand for further findings as to the precise circumstances of Baysden’s possession of the shotgun. Baysden , _ N.C. App. at _, 718 S.E.2d at 705 . Instead, the majority in Baysden summarily concluded that because of “the absence of any indication that [Baysden] did anything other than possess that inoperable object, [it was] unable to conclude that [Baysden’s] prior convictions include ‘violent’ crimes for purposes of the constitutional analysis required.” Id. at _, 718 S.E.2d at 705 (footnote omitted). In other words, Baysden permits this Court to determine whether a crime was violent based only on the evidence before it. The evidence before this Court sub judice, as discussed above, indicates that Plaintiff used fire, an inherently dangerous object, to burn a dwelling home, despite the unpredictable nature of fire and the risk that fire poses to human life. This is a violent crime per se. Under the precedent of Baysden , we need not remand to have the trial court make such a finding.
. However, the trial court notes that the State did not respond to the statistics provided by Plaintiff suggesting that the statute has not had an effect on firearms violence. I would first note that the State is not required to provide statistical evidence to establish a reasonable fit. See Carter, 669 F.3d at 418. Second, the trial court itself states that “the statistical evidence cited by Plaintiff is not a complete and comprehensive study of recidivism firearm violence[.]” The statistics referenced by the court provide no comparison of figures pre- and post-enactment of this statute or its corresponding amendments. Thus, there is no indication of how many crimes the statute prevents. Further, the trial court makes light of the relatively low number of recidivist felons convicted of violent crimes in the face of the number of convicted felons, but this could equally be evidence of the effectiveness of the statute — in other words, the number is low precisely because convicted felons have been prohibited from possessing firearms. Thus, these statistics are unhelpful and should be accorded no weight.
. Our court in Baysden also determined, without remanding to the trial court for its determination as the majority sub judice now holds, that the plaintiff’s conviction of possession of a sawed-off shot gun did not constitute a violent felony. _ N.C. App. at _, 718 S.E.2d at 705-06 .

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8901097. Public record. Not legal advice.