What makes someone a convicted felon for purposes of Possession of a Firearm by a Felon?

A convicted felon is someone that has previously been convicted of a felony. One of the issues our Greensboro criminal lawyers encounter, is an issue pertaining to out of state convictions. We often hear things such as I was convicted in North Carolina so I can still possess a gun in North Carolina. This just isn't true, a felony conviction from any state counts as a felony conviction for purposes of possession of a firearm by felon. Any felony conviction creates a prohibition on the person from being able to purchase, own, possess or have in their custody a firearm.

It wasn't my gun, they can't charge me with possession of a firearm by felon can they?

Remember, it's not ownership of a firearm by felon, it's merely possession of a firearm by a felon. Possession is 9/10th's of the law is an often saying in the court system. Now it is a violation of the statue for a convicted felon to own a firearm, but just as NCGS 14-415.1(a) states, they can't possess or have in their custody. For instance, if you have someone else's gun in your car, and there's no one else in your car, that would give law enforcement the ability to charge you with possession of a firearm by a convicted felon. They would have probable cause to arrest you, that doesn't mean they can prove their case beyond a reasonable doubt, but they'd still be able to charge you.

If someone says it's their gun, will that get my Firearm by Felon Case dismissed?

Sadly, no. Our Greensboro criminal lawyers get affidavits in a lot of our firearm by felon cases, the district attorney will review the affidavit however, the facts of the case are vital to the situation. Let's take the example above. Person driving alone in a vehicle. Firearm is found on the passenger side of the car. The driver is a convicted felon and the only person in the car. Police search the vehicle for a valid reason, let's just say there's a blunt of marijuana in the ash tray and they find the weapon. That person is then arrested and charged with Possession of a Firearm by Felon. This charge is valid. Even if the person says it's not their gun, which it isn't, and let's just say it's not their car either, law enforcement would still have probable cause to arrest the person for possession of a firearm by a felon. If the owner of the gun comes forth and says it's their gun, and they left the gun in the car, it would help to create a defense to the case, however, the District Attorney would not dismiss it because of this affidavit. Remember, it's not ownership of a firearm by felon, it's merely possession. When they were stopped by the police, they were the only person in the car and deemed to be in possession of the contents of that vehicle. Our criminal defense lawyers Greensboro, NC, believe this person would have a good defense at trial, however, an affidavit will not cause this case to be dismissed.

I told the police I knew the Gun was there, but it wasn't my gun. Can this firearm by Felon Case be Beat?

Knowledge of the weapon and being the sole possessor is problematic. If you tell the police you knew the gun was there it further their case that at the time of the stop you were the sole possessor or you were in custody of the firearm. What you say during an encounter police can and will be used against you, so please be cautious. Law enforcement very well may have a weak case against you, but your statements may give them a great case. If you tell the police you knew the gun was there, this shows knowledge of the weapon and gives them a far stronger case than if you said nothing at all. When you're stopped by the police, most of the time, you're better off not saying anything so not to fall into a trap which can hinder your case later.

It was someone else's gun, can I win my possession of a firearm by felon case?

Having a situation where more than one person has equal access to a weapon and it's not on a person is typically a decent case to argue in front of a jury in Greensboro, NC. For instance, if a person who has been convicted of a felony is in a car and they're a passenger in the car. Vehicle is stopped, firearm is found under the passenger seat. Person who is a convicted felon doesn't say anything or tells the police they had no idea the gun was there.

Does a No-Contest Plea or PJC count as a Conviction for Possession of a Firearm by Felon?

Yes, both a no-contest plea and a PJC count as convictions for purposes of possession of a firearm by felon cases. In North Carolina, a conviction is also defined as a final judgment. A No-Contest plea would be a final judgment for this purpose as would a prayer for judgment continued or PJC.

Can I Possess Long Guns as a Convicted Felon?

Not anymore. There was a time in North Carolina where there were a number of exceptions to the rule of firearm possession by a convicted felon. Believe or not, there at one point was an exception for long guns, and even an exception that allowed a felon to possess a firearm in a workplace or at their home. There was also a statute that allowed a convicted felon to possess a firearm five years after the completion of their sentence. These laws were all removed and North Carolina shifted their laws to be closer to the permanent ban of felons being able to possess firearms which is very similar to what the federal government has enacted.

Can a Felon Use a Firearm in Self-Defense?

A common question our criminal defense lawyers in Greensboro, NC receive, is can a convicted felon use a firearm to protect themselves. In other words, can I use a gun if it's necessary to protect myself or someone else? The courts are yet to rule on this issue, but the defenses are available and it would be up to a judge and jury to decide. Let's go through them together.

How to Win My Firearm by Felon Case

Possession of a Firearm by a Convicted Felon is nothing to play around with as it’s a Class G Felony with a maximum possible punishment of almost 4 years in Custody (and if you’re a habitual felon, it’s a lot more than that). It’s vital to be cautious with Firearm by Felon cases as these cases also run the risk of federal indictment. Our Greensboro Firearm by Felon Lawyers take an in-depth look at your charges, possession issues, suppression issues, and then craft the best strategy for moving forward.

The Four Main Defenses to a Possession of a Firearm by A Convicted Felon Case:

Possession – Actual Possession vs. Constructive Possession
You’re not actually a Felon
The Search or Seizure was Illegal
It’s not a Gun
Someone Used Your Identity

Possession in a Firearm by Felon Case

“Possession is 9 / 10th’s of the Law” is a common expression and if we had a nickel for every time we’ve heard it we could retire. But the reality is, possession is the primary issue in a majority of criminal, drug & firearm cases. Did you possess the item?

In this case we’re talking about a firearm and we’re looking at whether you actually possessed it or if you were in constructive possession of the gun.

Actual Possession of a Firearm Issues

Actual Possession is when the Gun is on you. It’s in your pocket, in your pants, belt line, holster, belt, etc – the gun is on you. Typically, if you’ve got actual possession it’s going to be pretty difficult to overcome a possession issue barring some rather significant circumstances.

Constructive Possession of a Firearm Issues

Constructive Possession cases are where a majority of our Firearm cases fall. It wasn’t on you – but it was near you. The most common situation is you’re driving a car and you’re the only person in it. Police stop you for a window tint violation, claim an odor of weed (because they smell it with every stop) and then they find a gun under the passenger seat. We all know, if you’re a convicted felon the police are going to charge you with possession of a Firearm by a Felon – but that doesn’t mean you’re guilty of crime.

To prove possession the state will need to show:

You had actual knowledge that the gun was present in the car – it’s also helpful if on the Body Worn Camera if you’re heard saying I didn’t know the gun was there. Often our clients are quick to point out that it’s not their gun, but that really doesn’t help all that much because the charge is not Ownership of a Firearm by a Felon but rather Possession.
Then you have to have the intent to control the guns disposition or use. This concept of intent is based on the circumstances surrounding the where the gun was found, how many people were near it, etc. One of our favorite constructive possession cases is State v. Sharpe deciding just this year.
1. STATE v. SHARPE – The background facts were that Mr. Sharpe was the front seat passenger in a car with four other people in it. The vehicle belonged to Mr. Sharpe’s mom and he didn’t drive because he didn’t have a license. The vehicle was stopped and Mr. Sharpe went into the store immediately, police followed him, he attempted to get away and he was tased. Police searched the vehicle and found a rifle in the backseat that no one took responsibility for. There was ammunition for the gun found between the driver’s and passenger’s seats. No DNA or Fingerprints were found on the gun. Mr. Sharpe had a passenger in the car testify at trial that the gun was in fact the passenger’s and not Mr. Sharpe’s. Despite all of this, Mr. Sharpe was convicted at trial.
  1. Fortunately, Mr. Sharpe appealed this case. The Court of Appeals reversed the jury’s decision stating that the evidence of intent to control the guns disposition or use was insufficient. He wasn’t in exclusive possession of the car. And the vehicle wasn’t owned or operated by Mr. Sharpe. This is the way Firearm by Felon cases are decided, it comes down to facts and then the way those facts play out may work to your benefit or not. This is why it’s vital to have a Top Rated Firearm by Felon Lawyer on your gun case, so that way every issue is addressed and every defense is presented to protect your rights.

Then that brings us to everyone’s favorite defense, they didn’t do it right!

This is where our criminal defense lawyers are at their best when we’re researching suppression issues. There are two typical suppression areas when it comes to a criminal case – the stop and / or the search.

In order to stop someone, police need to have a reasonable suspicion supported by Articulable Facts. And no, this doesn’t require the officer to be certain you’ve committed a crime before stopping you, just that they need facts they can describe that give them reason to believe something criminal is going on.

It can’t just be a hunch or a gut feeling that there’s something going on – the North Carolina Court of Appeals defined what a Reasonable Articulable Suspicion for a Stop is in that the stop must be based, ““on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training.”

The courts in North Carolina apply a ”totality of the circumstances as viewed from the standpoint of an objectively reasonable officer” approach when looking at stop issues. It should be noted that the reasonable suspicion standard is a very low bar for the police to reach, and it requires a lot less than our next illegal search or seizure issue which is everyone’s favorite, probable cause.

Probable Cause is one of the most discussed phrases in the criminal justice system. But the big question is, what is it, how does it work, and of course, did they have probable cause in my case? If you’re curious about probable cause in your firearm by felon case, you should call us at 336-379-0539 today, so we can assess your situation and give you an idea of what we think based on what you remember. But be aware that without police reports and body worn camera video a lot of times it’s difficult to assess because there may be a lot more to the reason for the stop and an officer’s probable cause to search that what you are aware of when you discuss your case with us.

Probable Cause is when the officer has reason to believe you are participating in criminal activity or that there is evidence of a crime inside of your car. Now PLEASE MAKE A MENTAL NOTE HERE, that if you give consent to search you eliminate our ability to challenge probable cause later. Agreeing that they can search, means they no longer need probable cause because you told them it was okay to search.

And don’t be afraid to tell the police they can’t search your car or your house or your person. This can’t be used against you later and it’s your right. It’s also helpful if there are issues with the search because making them get a warrant or forcing the officer to give their basis for the search could give your case the ammunition it needs to suppress their search which would eliminate their ability to move forward with your firearm by felon case.

The United States Supreme Court said that the officer’s belief does not to be correct or even more likely true than false. They just need to be able to describe information that shows there was a likelihood of criminal activity.

Probable Cause in a Gun case, also has a higher level threshold to meet which is based on the preponderance of the evidence. Meaning it’s more likely than not. Or 51% of the facts support the police officer having probable cause.

The next defense to a firearm by felon case is one that we see from time to time, where our client is not actually a felon.

In North Carolina, a lot of the focus on you is sadly, based on your past. The police while at the scene will do a search to see if you’re a felon and if they find that you are, and they have what they believe to be probable cause to arrest you they will charge you. But sometimes they read your criminal record wrong. Criminal records can be a little convoluted and we’ve seen people who were charged with a felony in their past but that charge was later reduced to a misdemeanor. But when law enforcement searched their information they saw that they were charged with a felony previously and that was enough to carry the day in their minds. We would make a motion to dismiss in this situation on the grounds that you are not in fact a felon.

The “It’s not a gun” defense:

The main focus in this area is on firearms that are antique. Certain antique guns do not qualify under the law as a firearm for purposes of firearm by felon. Also, this issue can arise when the gun is a replica or a toy gun, that an officer says he saw our client with, thought it was a real gun, but that the gun was never located.

Lastly, we have the Shaggy defense, “It wasn’t me.”

You’d be amazed at the number of cases we’ve seen lately where the police have charged the wrong person. Let’s just say you’re not cooperative with the investigation and law enforcement is attempting to identify you. They pull their information together and they find who they believe to be you and charge you, but the dilemma is they actually charged you under someone else’s information. This of course is a defense because the person charged needs to be the person who committed the crime.

Or let’s say they see someone on tape they believed to be you in possession of a gun. How blurry is that tape? Who took it? How did they identify you? All of these are issues we deal with. This can also happen when an officer states they saw someone with a gun and they thought it was you. This situation doesn’t come about too often, but we do see this in firearm by felon cases from time to time.

Now, we also see quite a few cases where someone identifies themselves as someone else. Let’s be careful here as this little move, can lead to you being charged with identity theft once they realize you gave someone else’s information. Identity Theft is an equal level charge to firearm by felon, and trust me, nothing make a prosecutor more angry than to have someone pretending to be someone else and impacting their record as a result of lying to the police.

When thinking about the best strategy for your case, it’s vital that we also take a look at the law concerning Firearm by Felon and then the pattern jury instructions which is what the state will need to prove beyond a reasonable doubt in order to be able to convict you:

NC Firearm by Felon Statute

§ 14-415.1. Possession of firearms, etc., by felon prohibited.

· It shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction as defined in G.S. 14-288.8(c).

For the purposes of this section, a firearm is:

any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive, or its frame or receiver, or
any firearm muffler or firearm silencer. This section does not apply to an antique firearm, as defined in G.S. 14-409.11. Every person violating the provisions of this section shall be punished as a Class G felon.

Now that you’ve looked at the statute let’s go through the Pattern Jury Instructions for Firearm by Felon in North Carolina together. Jury Instructions are the what the Judge reads to the jury during trial – these instructions define the elements the State of North Carolina will have to prove against in order to secure a conviction for Possession of a Firearm by a Convicted Felon.

The defendant has been charged with [possessing] [owning] [purchasing] [[having within defendant’s [custody] [care] [control]] a [firearm]2 [weapon of mass death and destruction]3 after having been convicted4 of a felony.

For you to find the defendant guilty of this offense the State must prove two things beyond a reasonable doubt.

First, that on (name date) in (name court) the defendant [was convicted of] [pled guilty to] the felony of (name felony) that was committed on (name date) in violation of the laws of the [State of North Carolina] [State of (name other state)] [United States].

And Second, that after (name date from the first element as alleged in the indictment)5, the defendant [possessed]6 [owned] [purchased] [[had within defendant’s [custody] [care] [control]] a [firearm] [weapon of mass death and destruction]7.

When looking at the above, we get it, it looks like a big mess. But the reality is criminal lawyers and prosecutors discuss the pattern jury instructions with the judge prior to the jury receiving them. We’ve bolded the instructions that vary. For instance, one issue is whether you possessed, owned, purchased the firearm, and whether you had within your custody, care, control and then whether you had a firearm or a weapon of mass destruction. Your criminal attorney will discuss the instructions with the judge and then move that the language be selected out of the bolded sections above to create jury instructions to be read to the jury.

Possession of a Firearm by a Convicted Felon are interesting cases and they make up the bulk of what we see on a day to day basis in the criminal justice system. Our firearm by felon attorneys in Greensboro hone in on all of the issues we’ve discussed in this article to protect your rights and to give you the absolute best shot at beating your firearm by felon case.

Call our Greensboro Criminal Lawyers at Garrett, Walker, Aycoth & Olson, Attorneys at Law today to help your gun charges. Our entire law firm is here to help you and we can be reached at 336-379-0539 or you can come to our office at 317 S. Greene St, Greensboro, NC 27401.