State v. Radomski

901 S.E.2d 908

STATE of North Carolina

v.Joseph John RADOMSKI, III, Defendant.

No. COA23-340

Court of Appeals of North Carolina.

Filed May 21, 2024

West Codenotes

Unconstitutional as Applied

N.C. Gen. Stat. Ann. § 14-269.2(b)

Appeal by Defendant from judgment entered 7 September 2022 by Judge Craig Croom in Orange County Superior Court. Heard in the Court of Appeals 10 January 2024. Orange County, No. 21 CRS 51423

Attorney General Joshua H. Stein, by Solicitor General Ryan Y. Park, Deputy Solicitor General Lindsay Vance Smith, and Solicitor General Fellow Mary Elizabeth D. Reed, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Heidi Reiner, for defendant-appellant.

MURPHY, Judge.

When the application of a statute impedes conduct protected by the plain text of the Second Amendment, it is presumptively unconstitutional. To overcome this presumption, the State must demonstrate that its regulation is consistent with, or analogous to, this Nation’s historical tradition of firearm regulation. The State failed to demonstrate that regulating Defendant’s possession of firearms, which were kept within a vehicle that was parked in the university hospital parking lot where Defendant was seeking emergency medical care, is consistent with this Nation’s historical tradition of firearm regulation. As an alternative ground for reversal, the State failed to present substantial evidence that Defendant knowingly possessed a firearm on educational property.

BACKGROUND

On 15 June 2021, Defendant drove his motorized vehicle to the University of North Carolina Hospital ("UNC Hospital") for treatment related to a temporary kidney shunt. At this time, Defendant was otherwise homeless and living in his vehicle. As such, all of his personal belongings were inside of the vehicle’s back cargo area. Defendant parked in the open-air lot nearest the Taylor Campus Health building—Crescent Lot—in a spot designated as handicapped parking.

Around or about 6:00 a.m., Officer Glenn Powell, a police officer with the UNC Chapel Hill Campus Police Department, received a call from UNC Hospital reporting a suspicious vehicle located in Crescent Lot. After making contact with hospital staff, Officer Powell approached Defendant’s vehicle and spoke to its occupant, Defendant. Officer Powell observed that Defendant’s vehicle did not have any license plate affixed to it and ran the vehicle’s information, upon which Officer Powell learned that Defendant’s vehicle had no insurance coverage. Officer Powell questioned Defendant about the vehicle’s contents, specifically asking if there were any items in the vehicle which he needed to know about, such as weapons. After a few responses to the contrary, Defendant stated there were firearms inside of the vehicle. At this time, Officer Powell asked Defendant to exit the vehicle. Throughout this interaction, Defendant expressed that he had been unaware he was on educational property.

Officer Powell placed Defendant in handcuffs while he searched the vehicle. Defendant assisted Officer Powell in locating the firearms, and he retrieved a series of firearms from the backseat. Officer Powell recovered an SKS black semi-automatic rifle, a magazine with several rounds of ammunition, several other semi-automatic rifles, and a Winchester 1400 shotgun, totaling to 6 long guns. Each of these guns was stored in or between a soft case without any trigger locks or other safeties. Officer Powell then placed Defendant under arrest for possession of a firearm on educational property.

On 1 November 2021, Defendant was indicted on one count of possession of a firearm on educational property in connection with the SKS black semi-automatic rifle and its magazine. On 6 September 2022, Defendant’s jury trial began, and the next day, the jury returned a guilty verdict. The trial court ordered Defendant’s sentence of 5 to 15 months to be suspended, and Defendant was placed on 12 months of supervised probation. Defendant appealed.

ANALYSIS

Defendant contends that his judgment should be vacated because (A) the statute under which Defendant was convicted is unconstitutional, both facially and as-applied to the facts of his case, (B) the trial court erred by denying his motion to dismiss for lack of sufficient evidence, and (C) the trial court erred by failing to intervene ex mero motu in the State’s improper closing argument. We hold that the application of N.C.G.S. § 14-269.2(b) to Defendant’s case, where Defendant’s vehicle was parked in a parking lot of the university hospital where he sought treatment and his firearms remained within the vehicle, is unconstitutional. As an alternative ground, we hold that the trial court erred by denying Defendant’s motion to dismiss for lack of sufficient evidence. We reverse the trial court’s denial of Defendant's motion to dismiss, vacate Defendant’s conviction, and dismiss each of Defendant’s other contentions of error as moot.

A. Constitutionality

First, Defendant argues that N.C.G.S. § 14-269.2(b) is facially unconstitutional, as it impermissibly "burdens conduct protected by the Second Amendment[.]" In the alternative, Defendant argues that the statute is unconstitutional as-applied to the circumstances of his case.

[1–3] "A party making a facial challenge must establish that a law is unconstitutional in all of its applications. In contrast, the determination whether a statute is unconstitutional as applied is strongly influenced by the facts in a particular case." State v. Grady, 372 N.C. 509, 522, 831 S.E.2d 542 (2019). "When confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force or to sever its problematic portions while leaving the remainder intact." Id. at 549, 831 S.E.2d 542 (quoting Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328-29, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006)) (cleaned up). As we conclude that the statute is unconstitutional as-applied to Defendant’s circumstances, we do not address Defendant’s facial challenge.

1. Rule 2

[4] Defendant acknowledges that he failed to raise these constitutional arguments at trial, and, therefore, they are unpreserved. N.C. R. App. P. 10 (2023). "Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal, not even for plain error[.]" State v. Gobal, 186 N.C. App. 308, 320, 651 S.E.2d 279 (2007) (citations omitted), aff’d, 362 N.C. 342, 661 S.E.2d 732 (2008).

Defendant, however, "respectfully requests [that] this Court exercise its discretionary authority under Rule 2 to waive Rule 10’s preservation requirements and address his constitutional arguments." Rule 2 permits an appellate court to "suspend or vary the requirements or provisions of any [Rules of Appellate Procedure] in a case pending before it upon application of a party or upon its own initiative" "[t]o prevent manifest injustice to a party, or to expedite decision in the public interest[.]" N.C. R. App. P. 2 (2023). In support of his request for review under Rule 2, Defendant asserts that, in light of the United States Supreme Court’s recent opinion in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), "the trial court’s decision to enter a judgment against [Defendant] pursuant to a statute that criminalizes constitutionally protected actions constitutes a ‘manifest injustice’ this Court can correct and prevent by invoking Rule 2."¹ Defendant fur- ther argues that review of his case pursuant to Rule 2 "is warranted in the public interest" because the constitutional issues presented are part of a "newly percolating and widely occurring issue[.]"

Defendant also seeks our review of the constitutional issues in a contemporaneously filed Motion for Appropriate Relief. We first address Defendant’s MAR. "When a motion for appropriate relief is made in the appellate division, the appellate court must decide whether the motion may be determined on the basis of the materials before it …. If the appellate court does not remand the case for proceedings on the motion, it may determine the motion in conjunction with the appeal and enter its own ruling on the motion with its determination of the case." N.C.G.S. § 15A-1418(b) (2023). We recently declined to address a defendant’s unpreserved constitutional argument pursuant to a MAR in State v. Stokes, 289 N.C. App. 631, 888 S.E.2d 416 (2023) (unpublished) (citing Gobal, 186 N.C. App. at 320, 651 S.E.2d 279) ("As an initial matter, we note that although [the] defendant attempts to address the constitutionality of [the statute] through a MAR filed separately with this Court and by referencing the MAR briefly in his brief, this issue was not preserved. Therefore, we will not address it as a part of [the] defendant’s appeal."). Although it is a non-precedential decision, we apply the same logic as in Stokes and deny Defendant’s MAR by separate order.

[5] Thus, whether we review Defendant’s constitutional argument depends on whether the circumstances support a decision to invoke Rule 2; that is, we must determine whether invoking Rule 2 to permit our review of the unpreserved constitutional issues is necessary "[t]o prevent manifest injustice to a party, or to expedite decision in the public interest[.]" N.C. R. App. P. 2 (2023). Although the State argues that Defendant failed to show that either of these circumstances exist, we are satisfied by Defendant’s argument that, due to the proximity of his case to Bruen and to the "newly percolating and widely occurring issue" presented in this case, invoking Rule 2 is appropriate under both of the articulated grounds. Thus, we proceed to consider the merits of Defendant’s constitutional argument.

2. As-Applied Challenge

[6] "An as-applied challenge represents a party’s protest against how a statute was...