Appeal by Guilford County Sheriff from order entered 31 August
2007 by Judge Linda L. Falls in Guilford County District Court.
Heard in the Court of Appeals 26 August 2008.
Office of Guilford County Attorney, by Matthew L. Mason, for
Guilford County Sheriff, BJ Barnes, appellant.
No brief filed on behalf of plaintiff.
No brief filed on behalf of defendant.
STROUD, Judge.
The Guilford County Sheriff (“the Sheriff”) contends that the
trial court erred when it granted defendant's motion for the return
of weapons surrendered pursuant to a domestic violence protective
order because defendant is prohibited from owning or possessing any
firearm pursuant to 18 U.S.C. § 922. We reverse and remand.
I. Factual Background
On 4 December 2006 plaintiff filed a complaint pursuant to
Chapter 50B seeking a domestic violence protective order (“DVPO”).
The complaint alleged that on 3 December 2006 defendant “grabbed
[plaintiff] by [the] neck and dug into [her] with his fingernails”and that defendant had physically and emotionally abused plaintiff
throughout their forty-eight year marriage. Furthermore, the
complaint alleged that defendant had “several guns” and had
threatened plaintiff with a gun in the past.
Judge Lawrence C. McSwain found that plaintiff had been
“placed in fear of imminent serious bodily injury” and entered an
ex parte DVPO against defendant. The order prohibited defendant,
inter alia, from threatening plaintiff, visiting plaintiff's
residence or workplace, and “
possessing, owning, . . . or
purchasing a firearm for the effective period of th[e] Order.”
(Emphasis added.) However, the order did not specifically direct
that defendant surrender his firearms to the sheriff. Guilford
County Deputy Sheriff B. K. Henderson served the DVPO upon
defendant on 4 December 2006. At Deputy Henderson's request,
defendant surrendered seven (7) firearms. The
ex parte DVPO was
dissolved on 13 December 2006.
On 5 April 2007, defendant filed a
pro se Motion for Return of
Weapons Surrendered Under Domestic Violence Protective Order.
Defendant filed an amended motion prepared by his counsel, which
included a listing of the firearms in the Sheriff's custody, on 25
April 2007. The motion was heard on 29 August 2007. The Sheriff
was represented by counsel at the hearing and opposed the motion,
offering evidence that defendant had been committed to a mental
institution in 2004 and arguing that he was thus precluded from
receiving the firearms. The trial court entered an order on 31August 2007 directing the Sheriff to return defendant's firearms.
The Sheriff appeals.
(See footnote 1)
II. Legal Analysis
On appeal, the Sheriff argues that the trial court erred by
(1) finding that the Sheriff improperly seized defendant's
firearms, (2) failing to conduct an inquiry as required by N.C.
Gen. Stat. § 50B-3.1(f) before ordering return of the firearms, and
(3) ordering the return of the firearms to a person who was
prohibited by the law from possessing them. We agree.
The appeal of an order for the return of firearms pursuant to
N.C. Gen. Stat. § 50B-3.1(f)
(See footnote 2)
appears to be one of firstimpression. Therefore, our first task is to determine the
appropriate standard of review.
When the trial court sits as fact-finder without a jury: “it
must (1) find the facts on all issues joined in the pleadings; (2)
declare the conclusions of law arising from the facts found; and
(3) enter judgment accordingly.”
Stachlowski v. Stach, 328 N.C.
276, 285, 401 S.E.2d 638, 644 (1991) (citing N.C. Gen. Stat. § 1A-
1, Rule 52).
The standard of appellate review for a
decision rendered in a non-jury trial is
whether there is competent evidence to support
the trial court's findings of fact and whether
the findings support the conclusions of law
and ensuing judgment. Findings of fact are
binding on appeal if there is competent
evidence to support them, even if there is
evidence to the contrary.
Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d 160, 163
(2001) (citations omitted),
disc. review denied, 354 N.C. 365, 556
S.E.2d 577 (2001).
The trial court's order contains only one substantive finding:
The Ex Parte Domestic Violence Order of
Protection signed by the Honorable Lawrence C.
McSwain and entered on 12-4-06 did not order
defendant to surrender to the Sheriff firearms
or other items pursuant to Paragraph 13, page5 at said Order. Defendant's property was
seized without an order of the court and such
seizure was improper.
According to the statute, the trial court was required to
conduct an inquiry before returning defendant's firearms and find
facts as to the only substantive issue raised by the motion:
“[W]hether the defendant [was] subject to any State or federal law
or court order that preclude[d] the defendant from owning or
possessing a firearm.” N.C. Gen. Stat. § 50B-3.1(f);
see also
State v. Oaks, 163 N.C. App. 719, 725_26, 594 S.E.2d 788, 792
(2004) (affirming the trial court's refusal to return seized
firearms to a known drug user because “the trial court cannot issue
an order that would place the court and defendant in violation of
federal law”);
Fayetteville Pub. v. Advanced Internet, ___ N.C.
App. ___, ___, 665 S.E.2d 518, 524 (2008) (“In order to prevail in
[his] action for return of the [property], plaintiff needed to show
that [he] was entitled to
immediate possession of the property.”
(Emphasis added.));
accord Fed. R. Crim. P. 41(g) (“A person
aggrieved by an unlawful search and seizure of property or by the
deprivation of property may move for the property's return. . . .
The court must receive evidence on any factual issue necessary to
decide the motion.”);
United States v. Bein, 214 F.3d 408, 411 (3rd
Cir. 2000) (“It is well settled that the Government may seize
evidence for use in investigation and trial, but that it must
return the property once the criminal proceedings have concluded,
unless it is contraband or subject to forfeiture.” (Emphasis
added.)),
cert. denied, 534 U.S. 943, 151 L. Ed. 2d 240 (2001). However, rather than comply with the statute and squarely address
the only substantive issue raised by the motion, the trial court
made findings on the legality of the Sheriff's seizure of the
firearms, an issue which was not raised by defendant's motion and
on which no relevant evidence was presented.
See McDevitt v.
Stacy, 148 N.C. App. 448, 451, 559 S.E.2d 201, 205 (2002) (“[A]
pleading must give sufficient notice of the events or transactions
which produced the claim to enable the adverse party to understand
the nature of it and the basis for it, to file a responsive
pleading, and to get any additional information he may need to
prepare for trial.” (Citation, quotation marks and ellipses
omitted.)). Indeed, defendant did not challenge the propriety of
the Sheriff's seizure of his firearms in either of his two motions
for return and as best we can tell from the record, he voluntarily
turned them over to the deputy.
There was highly persuasive evidence in the record that
defendant had been committed to a mental institution in 2004, which
under federal law would have precluded defendant from receiving a
firearm.
See 18 U.S.C. § 922(g)(4) (2006). Furthermore, there was
no evidence in the record to indicate that the seizure of
defendant's firearms by the Guilford County Sheriff's Department
was illegal. Because the trial court did not make the findings
required by the statute, and because the findings that it did make
were not raised in the motion and were not supported by any
relevant evidence, we reverse and remand in order for the trialcourt to conduct a proper inquiry as required by N.C. Gen. Stat. §
50B-3.1.
Reversed and remanded.
Judges McGEE and McCULLOUGH concur.
Footnote: 1