{ "id": 8469669, "name": "STATE OF NORTH CAROLINA v. CARLTON P. JOHNSON", "name_abbreviation": "State v. Johnson", "decision_date": "2005-04-05", "docket_number": "No. COA03-1123", "first_page": "301", "last_page": "311", "citations": [ { "type": "official", "cite": "169 N.C. App. 301" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "382 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "233" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519750 ], "year": 1989, "pin_cites": [ { "page": "143-44" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0140-01" ] }, { "cite": "159 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "9" }, { "page": "10" } ], "opinion_index": 0 }, { "cite": "272 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574015 ], "year": 1968, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0535-01" ] }, { "cite": "572 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "811", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 734", "category": "reporters:state", "reporter": "N.C. 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Ed. 2d 486", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "503 U.S. 908", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6259520, 6259848, 6261514, 6261868, 6260828, 6260504, 6258546, 6261140, 6259157, 6263190, 6258294, 6262712, 6258901, 6262138, 6260156, 6263485 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/us/503/0908-05", "/us/503/0908-06", "/us/503/0908-11", "/us/503/0908-12", "/us/503/0908-09", "/us/503/0908-08", "/us/503/0908-02", "/us/503/0908-10", "/us/503/0908-04", "/us/503/0908-15", "/us/503/0908-01", "/us/503/0908-14", "/us/503/0908-03", "/us/503/0908-13", "/us/503/0908-07", "/us/503/0908-16" ] }, { "cite": "160 L. Ed. 2d 150", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2004, "opinion_index": 0 }, { "cite": "364 F.3d 551", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9273458 ], "weight": 2, "pin_cites": [ { "page": "555" }, { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/f3d/364/0551-01" ] }, { "cite": "538 U.S. 84", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9030411 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "92" }, { "page": "176" }, { "page": "94" }, { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/us/538/0084-01" ] }, { "cite": "936 F.2d 352", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10523811 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/f2d/936/0352-01" ] }, { "cite": "629 N.W.2d 594", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11089899 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "597" }, { "page": "598" }, { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nw2d/629/0594-01" ] }, { "cite": "140 L. Ed. 2d 321", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "523 U.S. 1007", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11506304, 11506212, 11506633, 11506455, 11506349, 11506367, 11506679, 11506324, 11506421, 11506486, 11506519, 11506390, 11506554, 11506269, 11506591 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/523/1007-03", "/us/523/1007-01", "/us/523/1007-14", "/us/523/1007-09", "/us/523/1007-05", "/us/523/1007-06", "/us/523/1007-15", "/us/523/1007-04", "/us/523/1007-08", "/us/523/1007-10", "/us/523/1007-11", "/us/523/1007-07", "/us/523/1007-12", "/us/523/1007-02", "/us/523/1007-13" ] }, { "cite": "124 F.3d 1079", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11908507 ], "year": 1997, "pin_cites": [ { "page": "1088-89" } ], "opinion_index": 0, "case_paths": [ "/f3d/124/1079-01" ] }, { "cite": "590 S.E.2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2004, "pin_cites": [ { "page": "458" }, { "page": "457" }, { "page": "454", "parenthetical": "holding that only laws which retroactively increase punishment or impose a penalty violate the ex post facto clause, but retroactive civil or regulatory ones generally do not" }, { "page": "454" }, { "parenthetical": "internal quotations marks and citations omitted" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915905 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "198" }, { "page": "197" }, { "page": "192" }, { "page": "192" }, { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0183-01" ] }, { "cite": "358 So. 2d 943", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9732944 ], "year": 1978, "pin_cites": [ { "page": "946" } ], "opinion_index": 0, "case_paths": [ "/so2d/358/0943-01" ] }, { "cite": "299 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "710" }, { "page": "710" } ], "opinion_index": 0 }, { "cite": "666 S.W.2d 701", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1740852 ], "year": 1984, "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/ark/282/0146-01" ] }, { "cite": "476 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2308178 ], "year": 1996, "pin_cites": [ { "page": "516-18" } ], "opinion_index": 0, "case_paths": [ "/va-app/23/0286-01" ] }, { "cite": "558 N.W.2d 245", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1996, "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "145 L. Ed. 2d 1094", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "528 U.S. 1167", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9690784, 9690825, 9690730, 9690698, 9690671, 9690872, 9690929, 9690641, 9691089, 9690901, 9690805, 9691029, 9690966, 9690997, 9690847 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/528/1167-05", "/us/528/1167-07", "/us/528/1167-04", "/us/528/1167-03", "/us/528/1167-02", "/us/528/1167-09", "/us/528/1167-11", "/us/528/1167-01", "/us/528/1167-15", "/us/528/1167-10", "/us/528/1167-06", "/us/528/1167-14", "/us/528/1167-12", "/us/528/1167-13", "/us/528/1167-08" ] }, { "cite": "601 N.W.2d 348", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11572526 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "351" }, { "page": "350" }, { "page": "351", "parenthetical": "holding same" } ], "opinion_index": 0, "case_paths": [ "/nw2d/601/0348-01" ] }, { "cite": "150 L. Ed. 2d 754", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "533 U.S. 952", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9344994, 9345186, 9345223, 9345033, 9345450, 9345354, 9345135, 9344912, 9344824, 9345268, 9345397, 9345302, 9345080, 9344958 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/533/0952-04", "/us/533/0952-08", "/us/533/0952-09", "/us/533/0952-05", "/us/533/0952-14", "/us/533/0952-12", "/us/533/0952-07", "/us/533/0952-02", "/us/533/0952-01", "/us/533/0952-10", "/us/533/0952-13", "/us/533/0952-11", "/us/533/0952-06", "/us/533/0952-03" ] }, { "cite": "622 N.W.2d 918", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 1086899 ], "weight": 3, "pin_cites": [ { "page": "924-25" }, { "page": "925", "parenthetical": "noting that such amendments are generally not viewed as further punishment for the underlying felony, but as a proscription on a felon's future conduct" } ], "opinion_index": 0, "case_paths": [ "/neb/261/0416-01" ] }, { "cite": "130 L. Ed. 2d 168", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "513 U.S. 894", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1330466, 1333699, 1334021, 1335272, 1334664, 1332014, 1334523, 1334288, 1331669, 1333335, 1332794, 1333819, 1334364, 1335326, 1331583 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/513/0894-05", "/us/513/0894-01", "/us/513/0894-03", "/us/513/0894-02", "/us/513/0894-12", "/us/513/0894-08", "/us/513/0894-11", "/us/513/0894-14", "/us/513/0894-07", "/us/513/0894-04", "/us/513/0894-10", "/us/513/0894-09", "/us/513/0894-06", "/us/513/0894-15", "/us/513/0894-13" ] }, { "cite": "26 F.3d 282", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10508468 ], "weight": 2, "pin_cites": [ { "page": "291" }, { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/f3d/26/0282-01" ] }, { "cite": "148 L. Ed. 2d 78", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "pin_cites": [ { "parenthetical": "citing cases" } ], "opinion_index": 0 }, { "cite": "31 U.S. 849", "category": "reporters:federal", "reporter": "U.S.", "year": 2000, "pin_cites": [ { "parenthetical": "citing cases" } ], "opinion_index": 0 }, { "cite": "209 F.3d 319", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11450791 ], "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/f3d/209/0319-01" ] }, { "cite": "180 F.3d 115", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11661694 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "124-25" }, { "page": "124" }, { "page": "125", "parenthetical": "finding Davis unpersuasive because the reviewing court \"assumed an answer to the very question at issue - whether the change in Davis' right to possess firearms imposed 'punishment' \"" } ], "opinion_index": 0, "case_paths": [ "/f3d/180/0115-01" ] }, { "cite": "497 U.S. 37", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6212725 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "42", "parenthetical": "emphasis in original" }, { "page": "38-39", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/us/497/0037-01" ] }, { "cite": "154 L. Ed. 2d 795", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "537 U.S. 1117", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9341218, 9341250, 9340869, 9341063, 9341160, 9341421, 9341364, 9340916, 9341110, 9340949, 9340987, 9341309, 9341023 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/537/1117-09", "/us/537/1117-10", "/us/537/1117-01", "/us/537/1117-06", "/us/537/1117-08", "/us/537/1117-13", "/us/537/1117-12", "/us/537/1117-02", "/us/537/1117-07", "/us/537/1117-03", "/us/537/1117-04", "/us/537/1117-11", "/us/537/1117-05" ] }, { "cite": "565 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2002, "pin_cites": [ { "page": "45" }, { "page": "45" }, { "page": "46" }, { "page": "45", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "355 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220016 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "625" }, { "page": "625" }, { "page": "626" }, { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0592-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14416.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)(1)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 30, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 971, "char_count": 26040, "ocr_confidence": 0.764, "pagerank": { "raw": 1.2486312731679367e-07, "percentile": 0.6095502092979166 }, "sha256": "a06d6419c4a66d666a08267543919bd64c314b0aa3403ebfe4cb4dbbbca289fb", "simhash": "1:501262e0653f66db", "word_count": 4412 }, "last_updated": "2023-07-14T22:06:54.593382+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and BRYANT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CARLTON P. JOHNSON" ], "opinions": [ { "text": "STEELMAN, Judge.\nDefendant, Carlton R Johnson, appeals his conviction for possession of a firearm by a convicted felon. For the reasons discussed herein, we find no error.\nI. Background\nDefendant was convicted on 31 January 1983 of felonious sale and delivery of cocaine. On 15 December 2001, during a traffic stop, a police officer found a .38 caliber revolver in defendant\u2019s possession. Defendant was indicted and found guilty by a jury for the felony of possession of a firearm by a felon pursuant to N.C. Gen. Stat. \u00a7 14-415.1. The trial court sentenced defendant to twelve to fifteen months imprisonment, but suspended the sentence and placed defendant on probation. Defendant appeals.\nII.Issues\nThe issues presented on appeal are whether the application of N.C. Gen. Stat. \u00a7 14-415.1, as amended in 1995, to defendant: (1) violates the constitutional prohibitions against ex post facto laws; (2) constitutes an unconstitutional bill of attainder; and (3) had the effect of unconstitutionally stripping defendant of a vested right in violation of due process.\nIII.Felony Firearms Act: N.C. Gen. Stat. \u00a7 14-415.1\nIn 1971, the General Assembly enacted the Felony Firearms Act, N.C. Gen. Stat. \u00a7 14-415.1, which made unlawful the possession of a firearm by any person previously convicted of a crime punishable by imprisonment of more than two years. N.C. Gen. Stat. \u00a7 14-415.2 set forth an exemption for felons whose civil rights had been restored. 1971 N.C. Sess. Laws ch. 954, \u00a7 2.\nIn 1975, the General Assembly repealed N.C. Gen. Stat. \u00a7 14-415.2 and amended N.C. Gen. Stat. \u00a7 14-415.1 to ban the possession of firearms by persons convicted of certain crimes for five years after the date of \u201csuch conviction, or unconditional discharge from a correctional institution, or termination of a suspended sentence, probation, or parole upon such convictions, whichever is later.\u201d 1975 N.C. Sess. Laws ch. 870, \u00a7 1. This was the law in effect in 1983 when defendant was convicted of a felony covered by the statute and in 1985 when his conviction was unconditionally discharged.\nIn 1995, the General Assembly amended N.C. Gen. Stat. \u00a7 14-415.1 to prohibit possession of certain firearms by all persons convicted of any felony. 1995 N.C. Sess. Laws ch. 487, \u00a7 3. The statute now provides, \u201c [i]t 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 . . . .\u201d N.C. Gen. Stat. \u00a7 14-415.1(a) (2004). The current statute applies to \u201c[fjelony convictions in North Carolina that occur before, on, or after 1 December 1995.\u201d N.C. Gen. Stat. \u00a7 14416.1(b)(1).\nIV.Ex Post Facto Law\nIn his first assignment of error, defendant contends his conviction for possession of a firearm by a felon, in violation of N.C. Gen. Stat. \u00a7 14-415.1, violates the constitutional prohibition against ex post facto laws and should be vacated. Defendant asserts that at the time of his previous felony conviction in 1983, N.C. Gen. Stat. \u00a7 14-415.1 permitted him to possess a firearm five years after the date of discharge of the conviction, and thus, his conviction under N.C. Gen. Stat. \u00a7 14-415.1 as amended in 1995, violates the ex post facto clauses of the United States and North Carolina Constitutions. He argues the 1995 amendment to the statute changed the law to retroactively deprive him of his formerly restored right and punished him for conduct that was not previously criminal. We disagree.\n\u201cThe United States and the North Carolina Constitutions prohibit the enactment of ex post facto laws.\u201d State v. Wiley, 355 N.C. 592, 625, 565 S.E.2d 22, 45 (2002) (citing U.S. Const. art. I, \u00a7 10 which provides \u201cNo state shall. .. pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts ....\u201d and N.C. Const. art. I, \u00a7 16 which states \u201cRetrospective laws, punishing acts committed before the existence of such laws and by them only declared criminal, are oppressive, unjust, and incompatible with liberty, and therefore no ex post facto law shall be enacted\u201d), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003). We will consider defendant\u2019s state and federal constitutional arguments jointly, as both the state and federal constitutional ex post facto provisions are evaluated under the same standard. Wiley, 355 N.C. at 625, 565 S.E.2d at 45.\nThe prohibition against the enactment of ex post facto laws applies in four instances:\n\u20181st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.\u2019\nId. (quoting Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 38-39 (1990) (emphasis in original).\nA. Criminalizing An Act That Was Innocent When Committed\nThe overwhelming majority of courts have held that a statute which forbids possession of a firearm by a convicted felon does not violate the ex post facto clause even when the felony for which the defendant was convicted took place before the enactment of the statute. See United States v. O\u2019Neal, 180 F.3d 115, 124-25 (4th Cir. 1999); United States v. Mitchell, 209 F.3d 319, 333 (4th Cir.), cert. denied, 31 U.S. 849, 148 L. Ed. 2d 78 (2000) (citing cases); United States v. Brady, 26 F.3d 282, 291 (2d Cir.), cert. denied, 513 U.S. 894, 130 L. Ed. 2d 168 (1994); State v. Peters, 622 N.W.2d 918, 924-25 (Neb.), cert. denied, 533 U.S. 952, 150 L. Ed. 2d 754 (2001); State v. Swartz, 601 N.W.2d 348, 351 (Iowa 1999), cert. denied, 528 U.S. 1167, 145 L. Ed. 2d 1094 (2000); People v. Tice, 558 N.W.2d 245, 247 (Mich. App. 1996); Dodson v. Commonwealth, 476 S.E.2d 512, 516-18 (Va. App. 1996); Finley v. State, 666 S.W.2d 701, 703 (Ark. 1984); Landers v. State, 299 S.E.2d 707 (Ga. 1983); State v. Williams, 358 So. 2d 943, 946 (La. 1978).\nThe relevant time period to be considered when determining whether a statute creates an ex post facto law is the date on which the criminal offense the defendant is currently being charged with was committed. Wiley, 355 N.C. at 626, 565 S.E.2d at 46. C.f. State v. White, 162 N.C. App. 183, 198, 590 S.E.2d 448, 458 (2004) (holding that although the defendant\u2019s conviction requiring him to register as a sex offender occurred in 1995, the legislature\u2019s amendment in 1998 to the statutory registration requirement did not create an ex post facto law because the \u201cdefendant violated the registration requirements in 2001, three years after the change in the law.\u201d); Landers, 299 S.E.2d at 710. Here, the relevant time period is not the date of defendant\u2019s prior 1983 felony conviction, but 15 December 2001, the date of the offense charged in this case.\nWe concur with the majority of jurisdictions that hold the ex post facto clause is not violated under the circumstances in this case. \u201c \u2018It is hornbook law that no ex post facto problem occurs when the legislature creates a new offense that includes a prior conviction as an element of the offense, as long as the other relevant conduct took place after the law was passed.\u2019 \u201d State v. White, 162 N.C. App. at 197, 590 S.E.2d at 457 (quoting Russell v. Gregoire, 124 F.3d 1079, 1088-89 (9th Cir. 1997), cert. denied, 523 U.S. 1007, 140 L. Ed. 2d 321 (1998)). N.C. Gen. Stat. \u00a7 14-415.1 as amended applies to defendant because he has the status of a convicted felon, although he acquired that status in 1983, prior to the amendment. The Felony Firearms Act applies to the possession of a firearm that occurs after the effective date of the statute. Defendant was found guilty of possession of a firearm five years after the 1995 amendment to the statute took effect. By 2001, defendant had more than adequate notice that it was illegal for him to possess a firearm because of his status as a convicted felon, and he could have conformed his conduct to the requirements of the law. Accord Brady, 26 F.3d at 291. Furthermore, defendant\u2019s possession of a handgun in violation of N.C. Gen. Stat. \u00a7 14-415.1 was neither done before the passing of the law, nor innocent when done.\nB. Aggravating a Crime\nAs stated above, any law that \u201c \u2018aggravates a crime, or makes it greater than it was, when committed\u2019 \u201d is prohibited as an ex post facto law. Wiley, 355 N.C. at 625, 565 S.E.2d at 45 (emphasis in original) (citations omitted).\nAn example of this type of law is discussed in the South Dakota case of State v. Trower, 629 N.W.2d 594 (S.D. 2001), which plaintiff relies upon. In 1990, Trower was convicted of a child 'sex offense. After his conviction that offense was redefined as a \u201ccrime of violence.\u201d Id. at 597. Under South Dakota law, persons convicted of a crime of violence were prohibited from possessing firearms. The court in Trower held the redefinition of the defendant\u2019s prior offense as a \u201ccrime of violence\u201d violated the ex post facto clause. Id. at 598 (relying on the case of United States v. Davis, 936 F.2d 352 (8th Cir. 1991)).\nWe conclude this analysis is not applicable to the instant case. Defendant was convicted of a felony, sale and delivery of cocaine, in 1983. There have been no changes in the laws of North Carolina redefining this offense. It was a felony in 1983, it was a felony in 1995, 2001, and remains so today. Had the crime of the sale and delivery of cocaine been a misdemeanor in 1983 and had the legislature subsequently amended the statute to make it a felony, this might fall under the rationale of Trower and Davis .\nN.C. Gen. Stat. \u00a7 14-415.1 does not aggravate a crime or make it greater than it was at the time of its commission.\nC. Increase In Punishment\nThe amendment to N.C. Gen. Stat. \u00a7 14-415.1 did not increase the punishment for defendant\u2019s prior felonies. As we stated above, the crime for which defendant is being punished is his violation of N.C. Gen. Stat. 14-415.1 in 2001, not his 1983 conviction. Defendant\u2019s punishment for his 1983 conviction was not increased; he was convicted of the new offense \u2014 possession of a firearm by a felon, one element of which was his earlier felony conviction. Therefore, the amendment to the Felony Firearms Act did not increase defendant\u2019s punishment for his prior felony in violation of the ex post facto clause. See Landers 299 S.E.2d at 710.\nFurther, the amendment to N.C. Gen. Stat. \u00a7 14-415.1 constituted a retroactive civil or regulatory law, and as such does not violate the ex post facto clause. See White, 162 N.C. App. at 192, 590 S.E.2d at 454 (holding that only laws which retroactively increase punishment or impose a penalty violate the ex post facto clause, but retroactive civil or regulatory ones generally do not). The United States Supreme Court has applied a two-part test to determine if a law retroactively imposes \u201cpunishment.\u201d Id. at 191-92, 590 S.E.2d at 454 (citing Smith v. Doe, 538 U.S. 84, 92, 155 L. Ed. 2d 164, 176 (2003)). First, the court must determine whether it was the legislature\u2019s intent to impose a punishment or merely enact a civil or regulatory law. White, 162 N.C. App. at 192, 590 S.E.2d at 454. In reaching this determination, the court may consider the structure and design of the statute along with any declared legislative intent. Id. Second, where it appears the legislature did not intend to impose a punishment, we must then consider whether the effect of the law is \u201cso punitive as to negate any intent to deem the scheme civil.\u201d Id. (internal quotations marks and citations omitted). Stated another way, the second prong of the test \u201c \u2018focuses upon whether the sanction or disability that the law imposes may rationally be connected to the legislature\u2019s non-punitive intent, or rather appears excessive in light of that intent.\u2019 \u201d United States v. Farrow, 364 F.3d 551, 555 (4th Cir.) (holding the retroactive application to a defendant of N.C. Gen. Stat. \u00a7 14-415.1, as amended in 1995, did not violate the ex post facto clause) (citations omitted), cert. denied, \u2014 U.S.-, 160 L. Ed. 2d 150 (2004).\nAs to the first part of this test, after careful review we can find nothing in N.C. Gen. Stat. \u00a7 14-415.1 which indicates the legislature enacted it as a form of retroactive punishment. See id. (holding the reasoning in O\u2019Neal directly applicable to N.C. Gen. Stat. \u00a7 14-415.1 as amended and concluding that just because the statute indefinitely bans a felon\u2019s right to possess a firearm does not manifest a punitive intent on the part of the legislature.) Nor does the codification of the statute in the state\u2019s criminal code suggest a punitive intent. White, 162 N.C. App. at 193, 590 S.E.2d at 455 (citing Smith, 538 U.S. at 94, 155 L. Ed. 2d at 178).\nAs to the second part of the test, we further conclude that the law is not so punitive in effect that it should be considered punitive rather than regulatory. This is demonstrated by the fact that:\n[t]he law remains rationally connected to the state\u2019s legitimate interest in protecting the public. It continues to exempt the possession of firearms within one\u2019s home or lawful place of business. The prohibition remains limited to weapons that, because of their concealability, pose a unique risk to public safety. Finally, the law affects only those persons who have been convicted of a felony and are thus \u201cunfit[]to be entrusted with such dangerous instru-mentalities.\u201d O\u2019Neal, 180 F.3d at 124.\nFarrow, 364 F.3d at 555 (referring to the current version of N.C. Gen. Stat. \u00a7 14-415.1). See also Peters, 622 N.W.2d at 925 (noting that such amendments are generally not viewed as further punishment for the underlying felony, but as a proscription on a felon\u2019s future conduct).\nDefendant relies on several cases in support of his argument that the North Carolina statute is an ex post facto law. The first of which is United States v. Davis, 936 F.2d 352 (8th Cir. 1991), cert. denied, 503 U.S. 908, 117 L. Ed. 2d 486 (1992). In Davis, the defendant was convicted in 1971 as a violent felon and the law in effect in Minnesota at that time provided that a felon\u2019s civil rights would be fully restored upon the completion of his sentence and subsequent discharge from the state\u2019s custody. Id. at 356. Under the law as it existed at the time of the defendant\u2019s conviction, his rights would have been restored in 1976, allowing him to possess a pistol. Id. However, in 1975 while the defendant was on still on parole, Minnesota passed a law prohibiting violent felons from owning a pistol unless ten years had elapsed since the person had been restored his civil rights or the sentence had expired. Id. The Eighth Circuit held it would be a violation of the ex post facto clause to apply the 1975 Minnesota law to the defendant\u2019s 1971 conviction. Id. at 357. However, the holding in Davis has been heavily criticized for failing to consider whether the additional disen-titlement period was punitive or merely civil in nature. See O\u2019Neal, 180 F.3d at 125 (finding Davis unpersuasive because the reviewing court \u201cassumed an answer to the very question at issue \u2014 whether the change in Davis\u2019 right to possess firearms imposed \u2018punishment\u2019 \u201d). Other courts have found Davis inapplicable in cases involving statutes forbidding possession of a firearm by a felon since Davis did not involve a conviction for possession of a firearm by a felon. See Swartz, 601 N.W.2d at 350. We find the reasons articulated in both O\u2019Neal and Swartz to be persuasive and elect to follow their reasoning, declining to apply the holding in Davis to cases involving the application of a statute prohibiting the possession of a firearm by a convicted felon.\nDefendant also relies on State v. Keith, 63 N.C. 140 (1869) and Stroger v. California, 539 U.S. 607, 156 L. Ed. 2d 544 (2003). Each of which is distinguishable from the facts in the instant case. The holding in State v. Keith, is inapplicable for two reasons: (1) in this case defendant was never pardoned or exonerated for his crimes as was the defendant in Keith-, and (2) in Keith, the state was attempting to use the repeal of a statute to prosecute the defendant for a crime which it earlier would not have been able to charge him with, while in the instant case defendant\u2019s violation of N.C. Gen. Stat. \u00a7 14-415.1 came almost six years after the statute was amended. The holding in Stogner v. California, is also inapplicable to the facts in this case. In Stogner, the Supreme Court held that where a law attempted to allow for the prosecution of a crime for which the statute of limitations had already expired was an ex post facto violation. 539 U.S. at 610, 156 L. Ed. 2d at 551. This is not the case here. The prosecution of defendant for violation of the Felony Firearms Act was not barred by the statute of limitations, nor does the Act attempt to allow for the prosecution of the crime where the statute of limitations has already expired.\nD. Alteration of the Rules of Evidence\nThis fourth category of ex post facto laws is not implicated in this case, therefore we do not address it.\nE. Holding Regarding Ex Post Facto Law\nWe hold that N.C. Gen. Stat. \u00a7 14-415.1 punishes defendant for the specific conduct of possession of a firearm by a convicted felon. It does not punish him for the underlying 1983 felony conviction, but rather his conduct in 2001. Accordingly, we agree with the reasoning in Farrow and hold that the application of N.C. Gen. Stat. \u00a7 14-415.1 to defendant does not violate the ex post facto clause of either the North Carolina or United States Constitutions. This assignment of error is without merit.\nV. Bill of Attainder\nIn defendant\u2019s second assignment of error, he contends the 1995 amendment to N.C. Gen. Stat. \u00a7 14-415.1 amounts to an unconstitutional bill of attainder because it stripped him of his restored right to possess a handgun.\nA bill of attainder is a legislative act which inflicts punishment on a particular individual or a designated group of persons without a judicial trial. United States v. Lovett, 328 U.S. 303, 315, 90 L. Ed. 1252, 1259 (1946). A bill of attainder is prohibited by the U.S. and North Carolina Constitutions. See U.S. Const. art. I, \u00a7 10; N.C. Const, art. I, \u00a7 16. \u201cIf the punishment [imposed is] less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties.\u201d Lovett, 328 U.S. at 315, 90 L. Ed. at 1259. The United States Supreme Court established the test for determining whether a legislative act amounts to a bill of pains and penalties:\nIn deciding whether a statute inflicts forbidden punishment, we have recognized three necessary inquiries: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, \u201cviewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes\u201d; and (3) whether the legislative record \u201cevinces a congressional intent to punish.\u201d\nSelective Serv. Sys. v. Minnesota Pub. Interest Research Group, 468 U.S. 841, 852, 82 L. Ed. 2d 632, 643 (1984) (citations omitted).\nAs we discussed in section I, we found nothing in N.C. Gen. Stat. \u00a7 14-415.1 which indicates the legislature enacted it as a form of retroactive punishment, nor does it fall within the \u201chistorical meaning of punishment.\u201d Furthermore, defendant\u2019s conviction was not \u201cpunishment imposed without judicial process.\u201d He received a jury trial. Defendant is not being punished for belonging to a designated class of people, but for his violation of a statute which we held was validly imposed upon that group through the legislative process. See Swartz, 601 N.W.2d at 351 (holding same). As discussed above, the disability this law imposes can be said to further the non-punitive legislative purpose of lessening the danger to the public in the case of convicted felons and is not excessive in light of that purpose.\nConsequently, we find that the statutory prohibition of N.C. Gen. Stat. \u00a7 14-415.1 against felons possessing firearms outside of their home or business does not constitute a prohibited bill of attainder.\nVI. Due Process\nIn defendant\u2019s third and final assignment of error, he contends the application of N.C. Gen. Stat. \u00a7 14-415.1, as amended in 1995, violates his right to due process. Defendant asserts that in 1990 he regained his right to possess a handgun and that right became vested at that time.\nA statute cannot be applied retrospectively if it \u201cwill interfere with rights that have \u2018vested\u2019 \u201d. Gardner v. Gardner, 300 N.C. 715, 718-19, 268 S.E.2d 468, 471 (1980). \u201cA vested right is a right \u2018which is otherwise secured, established, and immune from further legal metamorphosis.\u2019 \u201d Bowen v. Mabry, 154 N.C. App. 734, 736, 572 S.E.2d 809, 811 (2002) (citations omitted). However, our case law has \u201cconsistently pointed out that the right of individuals to bear arms is not absolute, but is subject to regulation.\u201d State v. Dawson, 272 N.C. 535, 546, 159 S.E.2d 1, 9 (1968). The only requirement is that the regulation must be reasonable and be related to the achievement of preserving public peace and safety. Id. at 547, 159 S.E.2d at 10. See also State v. Fennell, 95 N.C. App. 140, 143-44, 382 S.E.2d 231, 233 (1989). As we discussed above, the regulation is reasonably related to further securing the public\u2019s safety. Furthermore, defendant has not been completely divested of his right to bear arms as N.C. Gen. Stat. \u00a7 14-415.1 allows him to possess a firearm at his home or place of business.\nFor these reasons, N.C. Gen. Stat. \u00a7 14-415.1 as amended does not violate defendant\u2019s right to due process. This assignment of error is without merit.\nVIL Conclusion\nFor the reasons discussed herein, we conclude the retroactive application of N.C. Gen. Stat. \u00a7 14-415.1 to defendant does not violate the prohibition against ex post facto laws and bills of attainder, nor does it strip defendant of a vested right. Accordingly, we find the trial court did not error and affirm defendant\u2019s conviction.\nNO ERROR.\nJudges HUDSON and BRYANT concur.\n. In Trower, the South Dakota Supreme Court acknowledged this distinction in its discussion of the Nebraska case of State v. Peters, 622 N.W.2d 918 (Neb. 2001). Trower, 629 N.W.2d at 598, fn.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Robert C. Montgomery, for the State.", "William T. Peregoy, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CARLTON P. JOHNSON\nNo. COA03-1123\n(Filed 5 April 2005)\n1. Constitutional Law; Firearms and Other Weapons\u2014 possession of firearm by convicted felon \u2014 amendment of statute \u2014 not ex post facto law\nDefendant\u2019s conviction for possession of a firearm by a felon under N.C.G.S. \u00a7 14-415.1, as amended in 1995, does not violate the constitutional prohibitions against ex post facto laws even though defendant asserts that at the time of his prior felony conviction in 1983 the statute permitted him to possess a firearm five years after the date of discharge of the conviction, because: (1) the relevant time period to be considered when determining whether a statute creates an ex post facto law is the date on which the criminal offense defendant is currently being charged with was committed, which in the instant case was 15 December 2001; (2) no ex post facto problem occurs when the legislature creates a new offense that includes a prior conviction as an element of the offense as long as the other relevant conduct took place after the law was passed; (3) by 2001, defendant had more than adequate notice that it was illegal for him to possess a firearm based on his status as a convicted felon, and he could have conformed his conduct to the requirements of the law; (4) N.C.G.S. \u00a7 14-415.1 does not aggravate a crime or make it greater than it was at the time of its commission; and (5) the amendment to N.C.G.S. \u00a7 14-415.1 constituted a retroactive civil or regulatory law and as such does not violate the ex post facto clause.\n2. Constitutional Law; Firearms and Other Weapons\u2014 possession of firearm by convicted felon \u2014 amendment of statute \u2014 not bill of attainder\nThe 1995 amendment to N.C.G.S. \u00a7 14-415.1 regarding possession of a firearm by a convicted felon did not constitute an unconstitutional bill of attainder even though defendant contends it stripped him of his restored right to possess a handgun, because: (1) nothing in N.C.G.S. \u00a7 14-415.1 indicates the legislature enacted it as a form of retroactive punishment, nor does it fall within the historical meaning of punishment; (2) defendant\u2019s conviction was not punishment imposed without judicial process since he received a trial; and (3) the disability this law imposes can be said to further the nonpunitive legislative purpose of lessening the danger to the public in the case of convicted felons and is not excessive in light of that purpose.\n3. Constitutional Law\u2014 possession of firearm by convicted felon \u2014 due process \u2014 vested right \u2014 right to bear arms\nThe 1995 amendment to N.C.G.S. \u00a7 14-415.1 regarding possession of a firearm by a convicted felon did not have the effect of unconstitutionally stripping defendant of a vested right in violation of due process, because: (1) the right to bear arms is not absolute, but is subject to regulation that is reasonable and related to the achievement of preserving public peace and safety; (2) the pertinent regulation is reasonably related to further securing the public\u2019s safety; and (3) defendant has not been completely divested of his right to bear arms as N.C.G.S. \u00a7 14-415.1 allows him to possess a firearm at his home or place of business.\nAppeal by defendant from judgment entered 28 March 2003 by Judge Kenneth F. Crow in New Hanover County Superior Court. Heard in the Court of Appeals 25 August 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Robert C. Montgomery, for the State.\nWilliam T. Peregoy, for defendant-appellant." }, "file_name": "0301-01", "first_page_order": 331, "last_page_order": 341 }