1.
Firearms and Other Weapons_forfeiture_drug use
The trial court had the authority to order the forfeiture and destruction of firearms seized
from a home where it found that defendant was an unlawful user of a controlled substance.
2.
Firearms and Other Weapons_forfeiture_evidence of drug use_not
concurrent_opportunity to object
The court abused its discretion by ordering that firearms belonging to defendant's wife be
destroyed because she was an unlawful user of controlled substances where the evidence against
her consisted of hearsay testimony from her husband's plea hearing and marijuana convictions
from 1992 and 1988. She had no notice or opportunity to object to the testimony at the time it
was given, and the drug use was not concurrent with the firearms possession.
3.
Firearms and Other Weapons_forfeiture_federal law applied in state court
The trial court properly based its decision not to return weapons to a marijuana user on
federal law despite defendant's contention that the court lacked jurisdiction to apply federal law
in a state criminal proceeding. The court cannot issue an order that would place the court and
defendant in violation of federal law.
4.
Firearms and Other Weapons_forfeiture order_indefinite time
A trial court conclusion that defendant and his wife (who are marijuana users) may not
possess firearms on their premises was vacated because it was for an indefinite time. The order
apparently presumes that defendant will always be an unlawful user of controlled substances.
Attorney General Roy Cooper, by Assistant Attorney General
Joan M. Cunningham and Special Deputy Attorney General John J.
Aldridge, III, for the State.
Robert A. Hassell for defendant.
TIMMONS-GOODSON, Judge.
Gene Patrick Oaks (“defendant”) appeals from a trial court
order providing that the Rockingham County Sheriff destroy weapons
and ammunition seized during defendant's arrest on drug and weapons
charges. For the reasons stated herein, we affirm in part, vacate
in part, and remand the trial court's order.
The factual and procedural history of this case is as follows:
On 19 September 2001, Deputy F. K. Woods (“Deputy Woods”) of the
Rockingham County Sheriff's Department executed a search warrant at
defendant's residence. The search warrant was issued based on
information provided by a confidential source claiming that
marijuana was present in the home. The warrant alleged that
defendant's wife, Elizabeth Shackleford Oaks (“Elizabeth”),
maintained and sold drugs at the home. When Deputy Woods arrived
at the house, defendant was in the backyard on his lawn mower.
Deputy Woods and another deputy approached defendant and explained
that they had a warrant to search the residence. The three of them
entered the house, where Elizabeth was located. Deputy Woods
advised both defendant and Elizabeth of their Miranda rights and
conducted a search of the residence.
During the search, Deputy Woods found less than one-half ounce
of marijuana, digital scales, rolling papers and a pipe. Deputy
Gray Smith (“Deputy Smith”) found a fully automatic MAK 90 rifle
and thirty other firearms in defendant's bedroom. Defendant was
arrested and charged with the following crimes: one count of
possession of a weapon of mass death and destruction, pursuant to
N.C. Gen. Stat. § 14-288.8, based on his possession of the MAK 90
rifle; misdemeanor possession of drug paraphernalia, pursuant toN.C. Gen. Stat. § 90-113.22; and simple possession of marijuana,
pursuant to N.C. Gen. Stat. § 90-95(d)(4). The record does not
reflect that Elizabeth was arrested or charged with any crimes.
Defendant pled not guilty to the misdemeanor charges of
possession of marijuana and possession of drug paraphernalia in
district court, but was convicted of both charges. He appealed the
judgments to the superior court for trial de novo. Prior to
trial in superior court, the State and defendant entered into a
negotiated plea whereby the felony charge of possession of a weapon
of mass destruction was dismissed in return for defendant's pleas
of guilty to the misdemeanors of simple possession of marijuana and
possession of drug paraphernalia. At defendant's guilty plea
hearing on 4 June 2002, Deputy Woods testified as follows about the
search of defendant's residence: “I asked Mr. Oaks if he had
narcotics in the house. He stated he had a small smoke sack in the
kitchen behind the curtains, and told me at the time him and his
wife smoked pot about every other day.”
At the conclusion of the plea hearing, the State notified
defendant and the trial court that it would file a motion to have
all of the firearms and ammunition seized from the residence
destroyed. The trial court instructed the State to serve notice of
the motion on defendant. In response to an inquiry from the State,
defendant's attorney stated that he represented Elizabeth as well,
and would accept service on her behalf. With the agreement of both
counsel, the trial court scheduled the hearing for the disposition
of the firearms for 28 June 2002. On 28 June 2002, a hearing was conducted on the State's motion
for an order of disposition of the firearms pursuant to N.C. Gen.
Stat. § 15-11.1(b1) and 18 U.S.C. §§ 922(d)(3) and (g)(3).
Defendant conceded that the MAK 90 rifle should be forfeited, but
contested the motion as it pertained to the remaining non-automatic
firearms. After the hearing, the trial court entered an order
containing the following pertinent findings of fact:
4. That the thirty-one firearms on the
attached “List of Firearms Still in
Custody of Sheriff's Dept.” were seized
pursuant to a valid search warrant;
5. That the ammunition was seized pursuant
to a valid search warrant;
6. That the firearms seized were
manufactured outside of North Carolina
and are “in commerce”;
7. That the Defendant and Mrs. Oakes [sic]
are unlawful users of the controlled
substance marihuana;
8. That the following items in the above
mentioned attached list; namely, items
26-33, 26-24, 26-25, 25-28, 25-29, and
25-30 were purchased by Mrs. Oakes [sic];
9. That the following items in the above
mentioned attached list were not
inherited by Mrs. Oakes [sic] from her
father; namely, items 22, 24, 9, 14, and
8, having a value of at least $4,000.00;
10. That all items except those listed in
paragraph 8 and items 4, 17, and 15
belong to the Defendant. These excepted
items belong to Mrs. Oakes [sic];
The trial court then concluded as a matter of law that defendant
and Elizabeth were prohibited from possessing “firearms or
ammunition on their own premises even for their own personal
protection.” The trial court ordered the destruction of allweapons and ammunition seized from the house. It is from this
order that defendant appeals.
Defendant argues that the trial court erred by ordering the
weapons and ammunition destroyed because (I) the trial court lacked
authority to order the forfeiture and destruction of the firearms;
(II) the decision not to return the weapons was improperly based on
federal law; and (III) some of the weapons were the property of
defendant's wife, who was not a defendant in the instant criminal
action.
[1] Defendant first argues that the trial court did not have
authority to order the forfeiture and destruction of the firearms
seized from the house. We disagree.
North Carolina General Statutes provide for the disposition of
firearms seized pursuant to a search warrant as follows:
[If] the district attorney determines the
firearm is no longer necessary or useful as
evidence in a criminal trial, the district
attorney, after notice to all parties known or
believed by the district attorney to have an
ownership or a possessory interest in the
firearm, including the defendant, shall apply
to the court for an order of disposition of
the firearm. The judge, after hearing, may
order the disposition of the firearm in one of
the following ways:
(1) By ordering the firearm returned to its
rightful owner, when the rightful owner
is someone other than the defendant and
upon findings by the court (i) that the
person, firm, or corporation determined
by the court to be the rightful owner is
entitled to possession of the firearm and
(ii) that the person, firm, or
corporation determined by the court to be
the rightful owner of the firearm was
unlawfully deprived of the same or had noknowledge or reasonable belief of the
defendant's intention to use the firearm
unlawfully.
(2) By ordering the firearm returned to the
defendant, but only if the defendant is
not convicted of any criminal offense in
connection with the possession or use of
the firearm, the defendant is the
rightful owner of the firearm, and the
defendant is not otherwise ineligible to
possess such firearm.
(3) By ordering the firearm turned over to be
destroyed by the sheriff of the county in
which the firearm was seized or by his
duly authorized agent. The sheriff shall
maintain a record of the destruction of
the firearm.
N.C. Gen. Stat. § 15-11.1(b1) (2003). Because the language of the
statute authorizes the trial court to dispose of firearms at its
discretion, we will not disturb such rulings unless an abuse of
discretion is established. “An abuse of discretion occurs where
the trial judge's determination is manifestly unsupported by reason
and is so arbitrary that it could not have been the result of a
reasoned decision.” State v. Reed, 355 N.C. 150, 155, 558 S.E.2d
167, 171 (2002) (citations omitted).
In the case sub judice, the trial court ordered defendant's
firearms destroyed because it found as fact that defendant is an
unlawful user of the controlled substance marijuana. This finding
of fact is supported by Deputy Woods's testimony that defendant
“told me at the time him and his wife smoked pot about every other
day.” Based on this evidence, the disposition of the weapons to
defendant would have placed the trial court in violation of 18
U.S.C. § 922(d)(3) (2000), which prohibits disposing of firearms to
an unlawful user of controlled substances, and it would have placeddefendant in violation of 18 U.S.C. § 922(g)(3), which prohibits an
unlawful user of controlled substances from receiving firearms that
have been shipped or transported in interstate commerce.
(See footnote 1)
Thus,
the trial court acted in accordance with N.C. Gen. Stat. § 15-
11.1(b1)(2), which permits the trial court to return firearms to a
defendant only if the defendant is not otherwise ineligible to
possess the firearm. Defendant may not receive those firearms as
an unlawful user of controlled substances. Therefore, we conclude
that the trial court acted properly within its discretion, and we
affirm the trial court's decision to destroy defendant's weapons.
[2] The trial court ordered Elizabeth's firearms destroyed
because it found as fact that Elizabeth is also an unlawful user of
the controlled substance marijuana.
(See footnote 2)
This finding of fact is
supported by the following evidence entered at the hearing: (1)
Deputy Woods's testimony that defendant “told me at the time him
and his wife smoked pot about every other day;” and (2) Elizabeth's
prior convictions for simple possession of marijuana in 1992 and
simple possession of marijuana and possession of drug paraphernalia
in 1988. The State argued at the disposition hearing that Deputy
Woods's testimony regarding marijuana smoking was admissible
against Elizabeth because Elizabeth's prior convictions corroborate
Deputy Woods's testimony. We disagree. Deputy Woods's testimony at defendant's guilty plea hearing
that “defendant told me at the time him and his wife smoked pot
about every other day” is hearsay without exception as it pertains
to Elizabeth. “'Hearsay' is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” N.C. Gen.
Stat. § 8C-1, N.C. R. Evid. 801(c) (2003). Elizabeth became
involved in this case after the trial court accepted defendant's
guilty plea, when the district attorney notified her that he would
file a motion seeking the destruction of her firearms. Because
Elizabeth was not a defendant in this case, and was not represented
by counsel until the conclusion of the guilty plea hearing, it
follows that she did not have the opportunity to object to this
testimony at the time it was given. She had no notice, according
to the record, that this testimony was to be offered to prove that
she smokes marijuana on a regular basis until after it was entered
into evidence. Therefore, we hold that this statement cannot be
used to support a conclusion of law that Elizabeth is an unlawful
user of controlled substances. To permit the use of this testimony
against Elizabeth violates her rights of due process and
constitutes an abuse of discretion by the trial court.
Elizabeth's prior convictions for possession of marijuana in
1992 and 1988 are also not sufficient to support a finding of fact
that she is currently an unlawful user of a controlled substance.
The federal courts have consistently held that 18 U.S.C. §
922(d)(3) applies where a defendant's possession of a firearm is
concurrent with his or her habitual drug use. See United States v.Purdy, 264 F.3d 809, 812 (9th Cir. 2001); United States v.
Williams, 216 F.Supp. 2d 568, 575 (E.D. Va. 2002); United States v.
Collins, 350 F.3d 773, 775-76 (8th Cir. 2003); United States v.
Bennett, 329 F.3d 769, 776-77 (10th Cir. 2003); United States v.
Edmonds, 348 F.3d 950, 953 (11th Cir. 2003). Because we conclude
that the trial court may not use Deputy Woods's testimony as
evidence of Elizabeth's recent drug use, we hold that evidence
tending to show drug use ten to fourteen years prior is not
sufficient to support a finding or conclusion that Elizabeth is
presently an unlawful user of controlled substances. Accordingly,
we vacate the conclusions of law by the trial court pertaining to
Elizabeth. For the reasons stated above, the trial court abused
its discretion by ordering Elizabeth's weapons destroyed.
[3] Defendant next argues that the trial court erred because
the decision not to return the weapons was improperly based on
federal law. We disagree.
The United States Code provides for the disposition of
firearms as follows:
It shall be unlawful for any person to sell or
otherwise dispose of any firearm or ammunition
to any person knowing or having reasonable
cause to believe that such person . . . is an
unlawful user of or addicted to any controlled
substance;
. . . .
It shall be unlawful for any person . . . who
is an unlawful user of or addicted to any
controlled substance . . . to ship or
transport in interstate or foreign commerce,
or possess in or affecting commerce, any
firearm or ammunition; or to receive any
firearm or ammunition which has been shipped
or transported in interstate or foreign
commerce.
18 U.S.C. §§ 922(d)(3) and (g)(3) (2000).
In the case sub judice, the trial court concluded that “it
would be inappropriate for the Court to return the ammunition and
guns to the Defendant . . . .” This conclusion is supported by the
finding of fact that defendant is an unlawful user of the
controlled substance marijuana. Defendant argues that the trial
court “lacks jurisdiction to apply federal law in a state criminal
proceeding.” However, the trial court cannot issue an order that
would place the court and defendant in violation of federal law.
Accordingly, the trial court sought to comply with 18 U.S.C. §
922(d)(3) by not disposing of the firearms to a defendant that it
recognized as an unlawful user of controlled substances, and it
sought to comply with 18 U.S.C. § 922(g)(3) by not allowing an
unlawful user of controlled substances to receive firearms that
have been shipped or transported in interstate commerce. We affirm
the trial court's order in this regard.
[4] We do, however, take exception to the trial court's
conclusion of law
(See footnote 3)
that defendant and Elizabeth “may not possess
firearms or ammunition on their own premises even for their own
personal protection.” Our concern is that the trial court's
language is unconditional and without any time limits. North Carolina courts have long deemed it reasonable to
regulate, without infringing upon, the right to bear arms under
certain circumstances. We have prohibited “'the carrying of deadly
weapons when under the influence of intoxicating drink, or to a
church, polling place, or public assembly, or in a manner
calculated to inspire terror . . . .'” State v. Dawson, 272 N.C.
535, 546, 159 S.E.2d 1, 10 (1968) quoting State v. Kerner, 181 N.C.
574, 107 S.E. 222 (1921). See N.C. Gen. Stat. § 14-415.1 (2003).
However, in the case sub judice, for the trial court to decree
that defendant may not possess firearms for an indefinite time is
too open-ended to be reasonable. Even when we consider the fact
that defendant is currently an unlawful user of controlled
substances for the purposes of 18 U.S.C. § 922, we cannot affirm an
order that apparently presumes that he will always be an unlawful
user of controlled substances, and therefore may never possess
firearms. Accordingly, we vacate the trial court's conclusions of
law that defendant may not possess firearms or ammunition on his
own premises, even for his own protection, without time limitation.
For the aforementioned reasons, we affirm the trial court's
order in part, vacate in part, and remand to the trial court for
further proceedings consistent with this opinion.
Affirmed in part, vacated in part, and remanded.
Judges HUDSON and ELMORE concur.
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