State v. Bonetsky , 246 N.C. App. 640 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-811
Filed: 5 April 2016
Burke County, No. 13 CRS 1481
STATE OF NORTH CAROLINA
v.
JOHN WAYNE BONETSKY
Appeal by Defendant from judgment entered 17 March 2015 by Judge Robert
C. Ervin in Superior Court, Burke County. Heard in the Court of Appeals
11 January 2016.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde,
for the State.
Sharon L. Smith for Defendant.
McGEE, Chief Judge.
John Wayne Bonetsky (“Defendant”) appeals his conviction of possession of a
firearm by a felon. Defendant contends that part of the North Carolina Firearms Act
– specifically N.C. Gen. Stat § 14-415.1, which generally prohibits felons from
possessing firearms – was unconstitutional as applied to him. We affirm.
I. Background
Officer Donny Dellinger (“Officer Dellinger”), a member of the Burke County
Narcotics Task Force, obtained a search warrant and led a search of Defendant’s
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home on 23 April 2013. Although the warrant was not included in the record on
appeal, it appears the warrant may have been based, at least in part, on the
statement of a confidential informant that Defendant was selling “large amounts” of
marijuana. Officers did not find any drugs during their search of Defendant’s home,
but they did find a shotgun, inside a gun case, inside a closet.
Defendant was indicted for possession of a firearm by a felon on
9 September 2013, with Defendant’s 1995 conviction for felony marijuana possession
in Texas (“the 1995 Texas conviction”) listed as the predicate felony. Defendant filed
a “Verified Motion to Dismiss” the charge on 31 December 2014, alleging that
N.C.G.S. § 14-415.1, “as applied to him[,] [was] a violation of the Constitution of the
United States of America and the North Carolina Constitution.” The trial court
considered, and denied, Defendant’s motion during a pretrial hearing on
15 January 2015 (“the pretrial hearing”).
During the pretrial hearing, the trial court also found that the 1995 Texas
conviction “equate[d] to a North Carolina trafficking in marijuana” conviction.
Defendant does not dispute this finding. Defendant also acknowledged during the
pretrial hearing that he had been convicted in 1977 of a felony armed robbery offense
in Pennsylvania (“the 1977 Pennsylvania conviction”). He denied being armed during
the robbery and also denied having been convicted of a firearm offense in connection
with that crime. Defendant further acknowledged that he had been convicted in 1996
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of a felony “controlled substance violation[ ]” in New York (“the 1996 New York
conviction”). No further evidence relating to the 1977 Pennsylvania and 1996 New
York convictions were presented at the pretrial hearing.
Before Defendant’s trial began, he waived his right to a jury trial and
acknowledged to the trial court that his strategy was to have his case tried quickly so
he could appeal the trial court’s denial of his motion to dismiss. At trial, Officer
Dellinger testified that Defendant arrived home during the 23 April 2013 search of
Defendant’s home. Officer Dellinger testified that he spoke to Defendant about the
shotgun and that Defendant was “very cooperative” and indicated he “did not realize
at the time that he was not supposed to have [the shotgun] at his residence.”
Defendant testified at trial that he thought his right to possess a firearm in North
Carolina had been restored two months before police searched his home1 and that he
1 Defendant previously explained at the pretrial hearing that he believed his right to possess
a firearm at home in North Carolina had been restored because, according to Defendant, his right to
possess a firearm at home had been restored in Texas. Defendant testified he was released from prison
for the 1995 Texas conviction in 2000 and released from post-release supervision in February 2008.
Defendant’s shotgun was confiscated in April 2013, approximately five years and two months after he
was reportedly released from post-release supervision. Tex. Penal Code Ann. § 46.04(a) (West 2011)
provides that
[a] person who has been convicted of a felony commits an offense if he
possesses a firearm:
(1) after conviction and before the fifth anniversary of the person's
release from confinement following conviction of the felony or the
person's release from supervision under community supervision,
parole, or mandatory supervision, whichever date is later; or
(2) after the period described by Subdivision (1), at any location
other than the premises at which the person lives.
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had the shotgun for “personal protection” for himself and his dogs. Defendant
testified he lived in the woods and sometimes encountered “wildcat[s]” and bears.
The trial court convicted Defendant of possession of a firearm by a felon, gave him a
suspended sentence, and placed Defendant on eighteen months of supervised
probation. Defendant appeals.
II. Standard of Review
“The standard of review for questions concerning constitutional rights is de
novo.” State v. Whitaker, 201 N.C. App. 190, 192, 689 S.E.2d 395, 396 (2009), aff'd,
364 N.C. 404, 700 S.E.2d 215 (2010). However, it is well-established that “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.” Id.; accord
District of Columbia v. Heller, 554 U.S. 570, 627–28 n.26, 171 L. Ed. 2d 637, 678 n.26
(2008) (“[P]rohibitions on the possession of firearms by felons . . . [are] presumptively
lawful[.]”). Yet, “[o]nce error is shown, the State bears the burden of proving the error
was harmless beyond a reasonable doubt.” State v. Graham, 200 N.C. App. 204, 214,
683 S.E.2d 437, 444 (2009); see N.C. Gen. Stat. § 15A–1443(b) (2015).
III. Defendant’s “As Applied” Challenge
A. Scope of Review
As a preliminary matter, we note that Defendant raised with the trial court
“as applied” challenges to N.C.G.S. § 14-415.1 under both the United States and
North Carolina Constitutions. Defendant’s brief before this Court cites to the Second
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Amendment of the United States Constitution once, but he proceeds to argue only
that “[a] defendant may challenge the application of [N.C.G.S. § 14-415.1] to him or
her on grounds that it violates Article I, Section 30 of the North Carolina
Constitution.” “It is not the role of the appellate courts . . . to create an appeal for an
appellant[,]” Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361
(2005), and we must limit our review of Defendant’s case accordingly.
B. Defendant’s Challenge
Defendant contends that N.C.G.S. § 14-415.1 is unconstitutional as applied to
him under Article I, Section 30 of the North Carolina Constitution. N.C.G.S. § 14-
415.1 imposes certain restrictions on the ability of felons to possess firearms. The
General Assembly amended N.C.G.S. § 14-415.1 in 2004 (“the 2004 amendment”) to
prohibit felons from possessing firearms in their homes, whereas previously felons
were allowed “to have possession of a firearm within his own house or on his lawful
place of business.” See 2004 N.C. Sess. Laws. 186, § 14.1.2 Defendant contends that
the restriction in the 2004 amendment, as applied to him, was unconstitutional.
The right to bear arms under Article I, Section 30 of the North Carolina
Constitution “is subject to the authority of the General Assembly, in the exercise of
the police power, to regulate, [although] the regulation must be reasonable and not
prohibitive, and must bear a fair relation to the preservation of the public peace and
2 N.C.G.S. § 14-415.1 was amended again in 2006 to provide that “[t]his section does not apply
to an antique firearm, as defined in G.S. 14–409.11.” See 2006 N.C. Sess. Laws. 259, § 7.(b).
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safety.” See Whitaker, 201 N.C. App. at 198, 689 S.E.2d at 399–400; but see id. at
197, 689 S.E.2d at 399 (citation omitted) (limiting the Court’s review of that right to
a felon’s “as applied” challenge to N.C.G.S. § 14-415.1 and “not attempt[ing] to
determine under Heller[, 554 U.S. 570, 171 L. Ed. 2d 637,] the full extent of the
individual right under the Second Amendment to keep and bear arms”). Accordingly,
this Court utilizes “rational basis” review for “as applied” challenges to N.C.G.S. § 14-
415.1 under Article I, Section 30 of the North Carolina Constitution. Id.; accord id.
at 191, 202, 689 S.E.2d at 395, 402 (holding that Heller had “no effect” upon the level
of scrutiny for “as applied” challenges to N.C.G.S. § 14-415.1 under either the Second
Amendment or Article I, Section 30); but see Johnston v. State of N.C., 224 N.C. App.
282, 293–94, 297, 735 S.E.2d 859, 868–71 (2012) (relying on Heller and U.S. v.
Chester, 628 F.3d 673 (4th Cir. 2010), to utilize “intermediate scrutiny” for an “as
applied” challenge to N.C.G.S. § 14-415.1 under the Second Amendment; noting that
“use of the rational basis standard may [no longer] be appropriate” for examining a
defendant’s “as applied” challenge to N.C.G.S. § 14-415.1 under Article I, Section 30;
but also noting that the Court was “bound by precedent” to do so), aff'd per curiam,
367 N.C. 164, 749 S.E.2d 278 (2013).
When determining whether N.C.G.S. § 14-415.1 is unconstitutional as applied
to a particular felon, this Court is required to examine five factors:
(1) the type of felony convictions, particularly whether they
involved violence or the threat of violence, (2) the
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remoteness in time of the felony convictions; (3) the felon's
history of law-abiding 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.
Whitaker, 201 N.C. App. at 205, 689 S.E.2d at 404 (citing Britt v. State, 363 N.C. 546,
549–50, 681 S.E.2d 320, 322–23 (2009)) (quotation marks and brackets omitted). As
offshoots of the last Whitaker factor, our appellate courts also have taken note of (a)
whether a felon proactively initiated an action to challenge the constitutionality of
N.C.G.S. § 14-415.1 or waited to bring his constitutional challenge after being
charged with possession of a firearm by a felon, see Baysden v. State of N.C., 217 N.C.
App. 20, 26, 718 S.E.2d 699, 704 (2011), aff'd per curiam, 366 N.C. 370, 736 S.E.2d
173 (2013), and (b) whether the felon was, or should have been, on notice of the 2004
amendment, see State v. Price, 233 N.C. App. 386, 398, 757 S.E.2d 309, 317, appeal
dismissed, 367 N.C. 508, 759 S.E.2d 90 (2014); Whitaker, 201 N.C. App. at 206, 689
S.E.2d at 405. However, as to the matter of notice, this Court has never held that a
defendant’s ignorance of the requirements of N.C.G.S. § 14-415.1 should weigh in his
or her favor when this Court reviews an “as applied” challenge to that section. Cf.
Price, 233 N.C. App. at 398, 757 S.E.2d at 317 (noting that the felon was in prison
when the 2004 amendment was enacted and, “[t]herefore, he should have been on
notice of the changes in legislation”); Whitaker, 201 N.C. App. at 206, 689 S.E.2d at
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405 (noting that the felon was warned multiple times by law enforcement that he
could not possess firearms and was “flagrantly” violating the statute).
1. Type of Felony Convictions
In the present case, as to the first Whitaker factor, regarding “the type of felony
convictions” at issue and “whether they involved violence or the threat of violence,”
Whitaker, 201 N.C. App. at 205, 689 S.E.2d at 404 (quotation marks and brackets
omitted), the trial court found at the pretrial hearing that the nature of Defendant’s
1977 Pennsylvania and 1996 New York convictions were “ambiguous[.]” Regarding
the 1995 Texas conviction, the trial court found that “trafficking convictions, as drug
offenses, at least involve a threat of violence.” Defendant contends the trial court’s
finding regarding his 1995 Texas conviction was made in error. We agree.
Defendant directs this Court to Baysden, 217 N.C. App. at 28, 718 S.E.2d at
705, which held that trial courts must “focus on the litigant's actual conduct rather
than upon the manner in which the General Assembly has categorized or defined
certain offenses” for the purposes of “as applied” challenges to N.C.G.S. § 14-415.1.
(emphasis added). Moreover, as Defendant correctly points out, N.C. Gen. Stat. § 90-
95(h) (2015), which defines the felony of “trafficking in marijuana” under North
Carolina law, does not even include violence or a threat of violence as an element of
the offense. In the present case, the trial court was presented with no evidence that
any violence or threat of violence was involved in the crime leading to Defendant’s
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1995 Texas conviction. Accordingly, the trial court erred by finding that Defendant’s
1995 Texas conviction “involve[d] a threat of violence.”
2. Remoteness in Time of the Felony Convictions and
3. History of Law-Abiding Conduct Since the Crimes
As to the second and third Whitaker factors, regarding “the remoteness in time
of the felony convictions” and “the felon’s history of law-abiding conduct since the
crime[s,]” Whitaker, 201 N.C. App. at 205, 689 S.E.2d at 404 (quotation marks and
brackets omitted), the trial court found that there was “no evidence of any other
convictions” beyond those admitted to by Defendant and that the otherwise unfruitful
search of Defendant’s home by law enforcement did not “tend to indicate a lack of
law-abiding conduct.” The trial court made no findings regarding the remoteness of
the 1977 Pennsylvania or 1996 New York convictions. It did make a finding regarding
the 1995 Texas conviction and concluded that “you’re really only judging
[Defendant’s] conduct from the point at which he was released” from prison.
Accordingly, the trial court “gauge[d] . . . the remoteness” of the 1995 Texas conviction
at thirteen years – instead of eighteen years, which was the number of years that had
passed between the 1995 Texas conviction and when Defendant’s shotgun had been
confiscated. Defendant contends that finding was made in error. We agree.
Defendant correctly notes in his brief that Britt, 363 N.C. at 550, 681 S.E.2d at
323, and Whitaker, 201 N.C. App. at 206, 689 S.E.2d at 404, specifically analyze the
defendants’ conduct in terms of their “law-abiding conduct[,]” or lack thereof, since
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their “crime[s]” or “conviction[s.]” Moreover, while it could be conceivable that a trial
court might weigh less-heavily a defendant’s “law-abiding conduct” while he was in
prison, it also would be highly relevant to an “as applied” challenge to N.C.G.S. § 14-
415.1 if that defendant engaged in criminal activity while incarcerated or somehow
obtained a contraband firearm during that time. Accordingly, the trial court erred
by finding the “remoteness” of Defendant’s 1995 Texas conviction to be thirteen years
and by examining Defendant’s conduct only after the date of his release.
4. History of Responsible, Lawful Firearm Possession During a Time Period when
Possession of Firearms was not Prohibited
As to the fourth Whitaker factor, regarding a “felon's history of responsible,
lawful firearm possession during a time period when possession of firearms was not
prohibited,” Whitaker, 201 N.C. App. at 205, 689 S.E.2d at 404 (emphasis added)
(quotation marks omitted), the trial court found that this factor was not “particularly
pertinent” in the present case. Defendant contends that finding was made in error
on the ground that he was responsible with his firearm during the two months
between when he thought his right to possess a firearm had been restored and when
his shotgun was confiscated. However, the fact that Defendant’s right to possess a
firearm at his home may have been restored under Texas law does not mean that
right was restored under North Carolina law. See N.C. Gen. Stat. § 14-415.4 (2015)
(defining the procedure for restoring certain felons’ rights to possess firearms). In
fact, Defendant does not contend on appeal that his right to possess a firearm in North
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Carolina was ever restored. Therefore, regardless of whether Defendant possessed
his shotgun “responsibl[y]” during those two months, he had no relevant “history of
responsible, lawful firearm possession during a time period when possession of
firearms was not prohibited[.]” See Whitaker, 201 N.C. App. at 205, 689 S.E.2d at 404(emphasis added) (quotation marks omitted). Accordingly, the trial court did not err
by finding that the fourth Whitaker factor was not “particularly pertinent” in the
present case. See id.
5. Assiduous and Proactive Compliance with the 2004 Amendment
As to the fifth Whitaker factor, regarding a “felon's assiduous and proactive
compliance with the 2004 amendment[,]” Whitaker, 201 N.C. App. at 205, 689 S.E.2d
at 404, the trial court found there was “no indication” that Defendant had taken any
“affirmative action to comply with the statute.” Defendant contends that finding was
made in error because “there was no reason to believe that [Defendant] was on notice
of the [2004] amendment.”
However, as discussed above, this Court has never held that a defendant’s
ignorance of the requirements of N.C.G.S. § 14-415.1 should weigh in the defendant’s
favor when this Court reviews his or her “as applied” challenge to that section. Cf.
Whitaker, 201 N.C. App. at 206, 689 S.E.2d at 405; Price, 233 N.C. App. at 398, 757
S.E.2d at 317. We see no reason to deviate in the present case from the longstanding
principle that a defendant’s “ignorance of the law is no excuse” for his or her unlawful
conduct. State v. Bryant, 359 N.C. 554, 566, 614 S.E.2d 479, 487 (2005), superseded
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by statute on other grounds as stated in State v. Moore, __ N.C. App. __, __, 770 S.E.2d
131, 141, disc. review denied, __ N.C. __, 776 S.E.2d 854 (2015).
Although there is no evidence that Defendant had “flagrantly” violated the
2004 amendment, see Whitaker, 201 N.C. App. at 206, 689 S.E.2d at 405, nor is there
“evidence to suggest that [D]efendant [had] misused firearms, there [also was] no
evidence that [D]efendant [had] attempted to comply with the 2004 amendment to
the statute[,]” see Price, 233 N.C. App. at 398, 757 S.E.2d at 317, or ascertain whether
he was even allowed to possess a firearm in this state. Defendant’s asserted
ignorance of the requirements of N.C.G.S. § 14-415.1 does not weigh in his favor. See
Bryant, 359 N.C. at 566, 614 S.E.2d at 487. Therefore, the trial court did not err by
finding there was “no indication” that Defendant had taken any “affirmative action
to comply with the statute.” See id.C. Prejudice
Because the trial court erred as to some of its findings regarding the Whitaker
factors, this Court must determine whether “the error[s] [were] harmless beyond a
reasonable doubt.” Graham, 200 N.C. App. at 214, 683 S.E.2d at 444; see N.C. Gen.
Stat. § 15A–1443(b) (2015). However, even taking those errors into account, we
believe the State has established that Defendant’s “as applied” challenge to N.C.G.S.
§ 14-415.1 under Article I, Section 30 of the North Carolina Constitution fails as a
matter of law.
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The State argues that the circumstances of Defendant’s case are analogous to
those in Whitaker. Defendant argues that his case is more like Britt than Whitaker.
In Britt, 363 N.C. at 547, 681 S.E.2d at 321, the felon pleaded guilty in 1979 to felony
possession with intent to sell and deliver a controlled substance. The crime “was
nonviolent and did not involve the use of a firearm.” Id. The felon’s right to possess
a firearm was restored under North Carolina law in 1987. Id. Following passage of
the 2004 amendment to N.C.G.S. § 14-415.1, the felon had a discussion with the
Sheriff of Wake County, who concluded that the felon would be in violation of the
recently amended statute if he kept his guns. Id. at 548, 681 S.E.2d at 321–22.
The felon “thereafter divested himself of all firearms” and proactively brought
an action challenging N.C.G.S. § 14-415.1 as applied to him. Id. at 548–49, 681 S.E.2d
at 322. In the thirty years since the felon’s conviction of a nonviolent felony, he had
“not been charged with any other crime, nor [was] there any evidence that he had
misused a firearm in any way.” Id. at 548, 681 S.E.2d at 322. Furthermore, “no
determination [had] been made by any agency or court that he [was] violent,
potentially dangerous, or [was] more likely than the general public to commit a crime
involving a firearm.” Id. Our Supreme Court applied a rational basis test and
concluded that N.C.G.S. § 14-415.1 was unconstitutional as applied to the felon. Id.
at 549–50, 681 S.E.2d at 322–23. The Court noted that “it is unreasonable to assert
that a nonviolent citizen who has responsibly, safely, and legally owned and used
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firearms for seventeen years is in reality so dangerous that any possession at all of a
firearm would pose a significant threat to public safety.” Id. at 550, 681 S.E.2d at
323.
Conversely, in Whitaker, 201 N.C. App. at 206, 689 S.E.2d at 404, the
defendant had felony convictions in 1988 for selling and delivering cocaine, in 1989
for indecent liberties with a minor, and in 2005 for possessing cocaine. He also
“demonstrated a blatant disregard for the law” by committing numerous
misdemeanors between 1984 and his trial in 2008, many of which involved drug
possession or driving while impaired. Id. He further acquired numerous firearms
after the 2004 amendment, even after twice being warned by law enforcement that
he was prohibited from possessing firearms. Id. at 206, 689 S.E.2d at 405. During a
subsequent search of the defendant’s home in 2006, law enforcement found eleven
rifles and shotguns, for which the defendant was indicted for possession of a firearm
by a felon. Id. at 191–92, 689 S.E.2d at 396. Although the defendant raised an “as
applied” challenge to N.C.G.S. § 14-415.1 after being indicted, this Court held that
N.C.G.S. § 14-415.1 was a “reasonable regulation which [was] fairly related to the
preservation of public peace and safety” as applied to the defendant. Id. at 206, 689
S.E.2d at 405.
The present case falls squarely between Britt and Whitaker. The Britt felon
had a single felony conviction thirty years prior, whereas the Whitaker felon had
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numerous felony and misdemeanor convictions, and one of his felony convictions
occurred the year before law enforcement found him in possession of numerous
firearms. In the present case, Defendant had three prior felony convictions, coming
in at seventeen, eighteen, and thirty-six years before the date of his alleged offense.
The Britt felon’s only felony was nonviolent, and it was “uncontested” that he
exhibited “lifelong nonviolence towards other citizens” and had “thirty years of law-
abiding conduct since his crime[.]” Britt, 363 N.C. at 550, 681 S.E.2d at 323. The
Whitaker felon, however, routinely broke the law and “flagrantly” violated the 2004
amendment by continuing to purchase firearms after twice being warned by law
enforcement that he was not allowed to possess them. In the present case, there was
no evidence the 1995 Texas conviction involved violence, and the trial court described
the nature of Defendant’s 1977 Pennsylvania and 1996 New York convictions as
“ambiguous[.]” There was no evidence that Defendant had engaged in unlawful
activity – notwithstanding his pending charge – for the approximately seventeen
years since his last conviction.
Finally, the Britt felon proactively brought an action challenging the
application of N.C.G.S. § 14-415.1 to him, whereas the Whitaker felon waited to bring
his challenge until after he was arrested and indicted for being in possession of
firearms as a felon. Although Defendant contends that he believed, incorrectly, that
his right to possess a firearm in North Carolina had been restored in February 2013,
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there also is no indication he made any attempt to ascertain whether he was actually
allowed to possess a firearm in this state. In short, Defendant’s conduct, while not
“flagrant[,]” as it was in Whitaker, also was neither “assiduous” nor “proactive[,]” as
it was in Britt.
Although this Court is presented with a close case, we cannot say Defendant
has “affirmatively demonstrated that he [was] not among the class of citizens who
pose a threat to public peace and safety” and that there was no rational basis under
which N.C.G.S. § 14-415.1 could apply to him. See Britt, 363 N.C. at 550, 681 S.E.2d
at 323. Defendant had three prior felony convictions, one of which was for armed
robbery3 and the other two occurred within the past two decades; there is no relevant
time period in which he could have lawfully possessed a firearm in North Carolina;
and, as a convicted felon, he did not take proactive steps to make sure he was
complying with the laws of this state, specifically with the 2004 amendment to
N.C.G.S. § 14-415.1. See generally Whitaker, 201 N.C. App. at 205, 689 S.E.2d at 404
Accordingly, this Court must defer to the “presumption in favor of constitutionality”
3 Although Defendant denied being “armed” during the 1977 robbery, he did acknowledge at
the pretrial hearing that he participated in the robbery. See Baysden, 217 N.C. App. at 28, 718 S.E.2d
at 705 (holding that courts must “focus on the litigant's actual conduct rather than upon the manner
in which the General Assembly has categorized or defined certain offenses.”).
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for enactments of the General Assembly, and affirm the trial court’s decision to deny
Defendant’s motion to dismiss. See id. at 192, 689 S.E.2d at 396.4
AFFIRMED.
Judges GEER and McCULLOUGH concur.
4 We also are unpersuaded by Defendant’s contention that the trial court could not properly
consider the 1977 Pennsylvania and 1996 New York convictions as part of Defendant’s “as applied”
challenge to N.C.G.S. § 14-415.1, on the ground that those “convictions were not included in [his]
indictment” for possession of a firearm by a felon. At Defendant’s trial, “the State need[ed] only [to]
prove two elements to establish the crime of possession of a firearm by a felon: (1) [D]efendant was
previously convicted of a felony; and (2) thereafter possessed a firearm.” See State v. Wiggins, 210
N.C. App. 128, 133, 707 S.E.2d 664, 669 (2011) (emphasis added).” As for Defendant’s “as applied”
challenge to N.C.G.S. § 14-415, Defendant bore the burden of overcoming the “presumption in favor of
[the] constitutionality” of the statute, which necessarily required the trial court to examine the
Whitaker factors in light of all of Defendant’s relevant criminal history. Accord Whitaker, 201 N.C.
App. at 206 n.6, 689 S.E.2d at 404 n.6 (noting that, while the defendant’s “indictments for possession
of a firearm by a felon were based upon his 1988 felony conviction, . . . we must consider the defendant’s
history of ‘‘law-abiding conduct,’’ Britt, 363 N.C. at 550, 681 S.E.2d at 323, [and] we note his more
recent felonies also for purposes of this constitutional analysis.”); State v. Yuckel, 217 N.C. App. 198,
719 S.E.2d 254, slip op. at 13 (2011) (unpublished) (Beasley, J., concurring) (“[T]he legal principles
governing as applied challenges to the Felony Firearms Act . . . make clear that the burden is on those
challenging the law to prove it is unconstitutional.”). Defendant’s guilt of possession of a firearm by a
felon and his “as applied” challenge to N.C.G.S. § 14-415.1 presented distinct inquiries for the trial
court.
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