State v. McFarland

NO. COA13-1234

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

STATE OF NORTH CAROLINA

v. Forsyth County
No. 12CRS060943
OMAR ANDRE MCFARLAND,
Defendant.

Appeal by defendant from Judgment entered on or about 28

June 2013 by Judge Susan E. Bray in Superior Court, Forsyth

County. Heard in the Court of Appeals 6 March 2014.

Attorney General Roy A. Cooper III, by Assistant Attorney
General Laura E. Parker, for the State.

James N. Freeman, Jr., for defendant-appellant.

STROUD, Judge.

Omar McFarland (“defendant”) appeals from the judgment

entered after a Forsyth County jury found him guilty of failing

to report a change of address as a sex offender. We find no

error at trial, but remand for the trial court to make

conclusions of law with regard to defendant’s motion to suppress

as required by statute.

I. Background
 -2-
Defendant was indicted in Forsyth County for failing to

report a change of address as required by the sex offender

registration statutes and for having attained habitual felon

status. Defendant pled not guilty and proceeded to jury trial on

26 June 2013. Before trial, defendant filed a written motion to

suppress statements he made to the police, which he contended

were obtained in violation of his constitutional rights. The

trial court denied the motion from the bench without explanation

or oral findings of fact. The trial court then entered a written

order with findings of fact on 24 June 2013.

At trial, the State’s evidence tended to show that

defendant was a convicted sex offender. Prior to being released

from prison, defendant was given a notice of the rules

applicable to sex offenders upon release, including the

statutory requirement that he notify the sheriff’s office of a

change of address. Defendant signed the notice and indicated

that he intended to reside at the Samaritan Ministries homeless

shelter. He was released from prison on 9 October 2012. On 10

October 2012, defendant went to the Forsyth County Sheriff’s

Office to register as a sex offender. When he registered,

defendant was given a more extensive notice of the rules that

apply to sex offenders, which he signed. He initialed by each
 -3-
rule. One of the rules listed concerned changes of address. It

explained that

[w]hen an offender that is required to
register changes addresses, they must appear
in person and provide written notification
of this address change to the Sheriff in the
county where they have most currently
registered. This in-person notification
must be made to the county Sheriffs within 3
business days of the address change. The
offender must also register with the new
Sheriff. I shall report the address or a
detailed description of every location I
reside or live at. I understand I must
report a location even if it does not have a
street address.

Defendant initialed this notice, indicating that he had read and

understood it.

On 26 October 2012, Deputy R.C. Holland of the Forsyth

County Sheriff’s Office went to the Samaritan Ministries shelter

to verify defendant’s address. The shelter’s records indicated

that defendant had stayed there previously, but not since 2008.

Deputy Holland reported his findings to Detective Gargiulo of

the Sex Offender Registry Unit. Detective Gargiulo waited three

days to allow defendant the opportunity to appear and change his

address. On 30 October 2012, Detective Gargiulo secured a

warrant for defendant’s arrest.

The detective attempted to get in touch with defendant,

unsuccessfully at first. Detective Gargiulo was able to speak
 -4-
with defendant on the phone on 7 November 2012 and asked him to

come to the Sheriff’s Office. Defendant came into the office

that same day. He was escorted to an unsecured interview room

and was not handcuffed. He was not informed that a warrant for

arrest had been issued. Detective Gargiulo and Corporal Sales

then spoke with defendant about where he had been living.

Defendant objected at trial to the admission of his statements,

renewing the same objections raised by his motion to suppress.

The trial court again overruled the objections.

Defendant at first said that he was staying at the

Samaritan Ministries shelter. When confronted with evidence that

he had not been staying there, in violation of the sex offender

registration statutes, he explained that he was staying with

various people and moving from place to place. Defendant asked

how he could have an address when he was homeless. Detective

Gargiulo explained that he had to notify the Sheriff’s Office

every time he changed residences. At the end of the interview,

defendant was placed under arrest and served with the arrest

warrant.

At the close of the State’s evidence, defendant moved to

dismiss the charges on the basis that N.C. Gen. Stat. § 14-

208.11 (2011) was void for vagueness as applied to him and on
 -5-
the ground that the State had failed to present sufficient

evidence. The trial court denied defendant’s motion. The jury

found defendant guilty of violating N.C. Gen. Stat. § 14-208.11.

Defendant then pled guilty to having attained habitual felon

status, explicitly reserving his right to appeal the underlying

conviction. The trial court found three mitigating factors and

no aggravating factors. The trial court sentenced defendant to a

mitigated range term of 58-82 months imprisonment. Defendant

gave notice of appeal in open court.

II. Motion to Dismiss

Defendant argues that the trial court erred in denying his

motion to dismiss. First, he contends that N.C. Gen. Stat. § 14-

208.11 (2011) is void for vagueness. Second, he argues that even

if the statute is constitutional, the State failed to present

sufficient evidence. We disagree.

A. Standard of Review

We review the denial of a motion to dismiss premised on the

alleged unconstitutionality of the criminal statute and the

insufficiency of the evidence de novo. State v. Buddington, 210

N.C. App. 252, 254, 707 S.E.2d 655, 656 (2011); State v. Fisher,

___ N.C. App. ___, ___, 745 S.E.2d 894, 901, disc. rev. denied,

___ N.C. ___, 752 S.E.2d 470 (2013). “In reviewing challenges
 -6-
to the sufficiency of evidence, we must view the evidence in the

light most favorable to the State, giving the State the benefit

of all reasonable inferences. Contradictions and discrepancies

do not warrant dismissal of the case but are for the jury to

resolve.” State v. Highsmith, 173 N.C. App. 600, 605, 619 S.E.2d

586, 590 (2005) (citation and quotation marks omitted).

B. Void for Vagueness

Defendant argues that the trial court erred in denying his

motion to dismiss because N.C. Gen. Stat. § 14-208.11 (2011) is

void for vagueness as applied to him. He contends that because

he is homeless, a person of ordinary intelligence person could

not know what “address” means in his case. We hold that the

statute is not so vague that it violates due process.

Defendant moved to dismiss the charge against him on the

basis that the statute is void for vagueness. Therefore, he has

properly preserved this constitutional challenge. Cf. State v.

Fox, 216 N.C. App. 153, 158-59, 716 S.E.2d 261, 266 (2011)

(declining to consider the defendant’s argument that the sex

offender registration statute was void for vagueness where he

failed to raise the constitutional issue at trial).

Defendant was indicted for violating N.C. Gen. Stat. § 14-

208.11(a)(2), which establishes that a person required to
 -7-
register under the sex offender registration statute commits a

Class F felony if he “[f]ails to notify the last registering

sheriff of a change of address as required by this Article.”

N.C. Gen. Stat. § 14-208.9(a) (2011) states, in relevant part,

that “[i]f a person required to register changes address, the

person shall report in person and provide written notice of the

new address not later than the third business day after the

change to the sheriff of the county with whom the person had

last registered.” The statute does not define the term

“address.” Defendant contends that the absence of a definition

makes the change-of-address requirement void for vagueness as

applied to him because he was homeless, so he had no “address.”

“To satisfy due process, a penal statute must define the

criminal offense [1] with sufficient definiteness that ordinary

people can understand what conduct is prohibited and [2] in a

manner that does not encourage arbitrary and discriminatory

enforcement. The void-for-vagueness doctrine embraces these

requirements.” Skilling v. United States, 561 U.S. 358, 402, 177

L.Ed. 2d 619, 656 (2010) (citation, quotation marks, and

brackets omitted). The North Carolina Supreme Court has

“expressed an almost identical standard.” State v. Green, 348

N.C. 588, 597, 502 S.E.2d 819, 824 (1998), cert. denied, 525
 -8-
U.S. 1111, 142 L.Ed. 2d 783 (1999). Our Supreme Court has

explained that “[a] statute which either forbids or requires the

doing of an act in terms so vague that men of common

intelligence must necessarily guess at its meaning and differ as

to its application violates the first essential of due process

of law.” In re Burrus, 275 N.C. 517, 531, 169 S.E.2d 879, 888

(1969) (citations and quotation marks omitted), aff’d, 403 U.S.

528, 29 L.Ed. 2d 647 (1971).

“Even so, impossible standards of statutory clarity are not

required by the constitution. When the language of a statute

provides an adequate warning as to the conduct it condemns and

prescribes boundaries sufficiently distinct for judges and

juries to interpret and administer it uniformly, constitutional

requirements are fully met.” Id. “What renders a statute vague

is not the possibility that it will sometimes be difficult to

determine whether the incriminating fact it establishes has been

proved; but rather the indeterminacy of precisely what that fact

is.” United States v. Williams, 553 U.S. 285, 306, 170 L.Ed. 2d

650, 670 (2008). Moreover, “clarity at the requisite level may

be supplied by judicial gloss on an otherwise uncertain statute,

[though] due process bars courts from applying a novel

construction of a criminal statute to conduct that neither the
 -9-
statute nor any prior judicial decision has fairly disclosed to

be within its scope.” United States v. Lanier, 520 U.S. 259,

266, 137 L.Ed. 2d 432, 442-43 (1997) (citations omitted). “[T]he

touchstone is whether the statute, either standing alone or as

construed, made it reasonably clear at the relevant time that

the defendant’s conduct was criminal.” Id. at 267, 137 L.Ed. 2d

at 443.

Our Supreme Court clearly and unambiguously defined the

term “address” as used in N.C. Gen. Stat. § 14-208.11 well

before defendant was released from prison in October 2012. The

Supreme Court explained that

[r]esidence simply indicates a person’s
actual place of abode, whether permanent or
temporary. Thus, a sex offender’s address
indicates his or her residence, meaning the
actual place of abode where he or she lives,
whether permanent or temporary. Notably, a
person’s residence is distinguishable from a
person’s domicile. . . . Beyond mere
physical presence, activities possibly
indicative of a person’s place of residence
are numerous and diverse, and there are a
multitude of facts a jury might look to when
answering whether a sex offender has changed
his or her address.

State v. Abshire, 363 N.C. 322, 331-32, 677 S.E.2d 444, 450-51

(2009) (citations and quotation marks omitted).

Further, this Court has applied the Supreme Court’s

definition of “address” in a case where, as here, the defendant
 -10-
was homeless. In State v. Worley, we held that “everyone does,

at all times, have an ‘address’ of some sort, even if it is a

homeless shelter, a location under a bridge or some similar

place.” State v. Worley, 198 N.C. App. 329, 338, 679 S.E.2d 857,

864 (2009). We noted that “[t]he purpose of the sex offender

registration program is to assist law enforcement agencies and

the public in knowing the whereabouts of sex offenders and in

locating them when necessary.” Id. at 334-35, 679 S.E.2d at 862

(citation and quotation marks omitted). As a result, we rejected

the defendant’s argument that homeless sex offenders have no

address for purposes of the registration statutes, reasoning

that a contrary holding would render “such individuals . . .

effectively immune from the registration requirements found in

current law as long as they continued to ‘drift.’” Id. at 338,

679 S.E.2d at 864.

Even assuming that the language of the statute is

ambiguous, defendant had full notice of what was required of

him, given the judicial gloss that the appellate courts have put

on it. See Lanier, 520 U.S. at 267, 137 L.Ed. 2d at 443.

Certainly after Abshire and Worley, if not before, a person of

reasonable intelligence would understand that a sex offender is

required to inform the local sheriff’s office of the physical
 -11-
location where he resides within three business days of a

change, even if that location changes from one bridge to

another, or one couch to another. Worley, 198 N.C. App. at 338,

679 S.E.2d at 864. Although this obligation undoubtedly places

a large burden on homeless sex offenders, it is clear that they

bear such a burden under N.C. Gen. Stat. § 14-208.9 and that

under N.C. Gen. Stat. § 14-208.11(a)(2) they may be punished for

willfully failing to meet the obligation. Moreover, the fact

that it may sometimes be difficult to discern when a homeless

sex offender changes addresses does not make the statute

unconstitutionally vague or relieve him of the obligation to

inform the relevant sheriff’s office when he changes addresses.

See Williams, 553 U.S. at 306, 170 L.Ed. 2d at 670.

Here, the notice actually given to defendant by the local

sheriff’s office when he registered, and signed by defendant,

reflected this obligation. The statement initialed by defendant

stated, “I shall report the address or a detailed description of

every location I reside or live at. I understand I must report a

location even if it does not have a street address.”

We hold that N.C. Gen. Stat. § 14-208.11 is not void for

vagueness as applied to defendant because a person of ordinary

intelligence in defendant’s circumstances would understand what
 -12-
was required of him. See Burrus, 275 N.C. at 531, 169 S.E.2d at

888. Therefore, the trial court did not err in denying

defendant’s motion to dismiss on this basis.

C. Sufficiency of the Evidence

Defendant next argues that even if the statute is not void

for vagueness the State failed to present sufficient evidence

that he changed addresses. He acknowledges that the State

presented evidence that he was not residing at his registered

address, the Samaritan’s Ministries homeless shelter, but

reasons that the State never presented any evidence of where he

was actually residing because he was moving from place to place

and had no permanent “address.” But that is not what the State

is required to prove.

[T]he offense of failing to notify the
appropriate sheriff of a sex offender’s
change of address contains three essential
elements: (1) the defendant is a person
required to register; (2) the defendant
changes his or her address; and (3) the
defendant willfully fails to notify the last
registering sheriff of the change of
address, not later than the third day after
the change.

State v. Fox, 216 N.C. App. 153, 156-57, 716 S.E.2d 261, 264-65

(2011) (citations, quotation marks, ellipses, and brackets

omitted). Defendant does not contest that he was required to

register and that he never notified the last registering sheriff
 -13-
of a new address. He simply contends that because he had no new

address, the State cannot show that it changed.

The State is not required to show what defendant’s new

address was. The State is simply required to show that defendant

changed his address. Defendant’s argument is similar to the one

we rejected in Worley, that a homeless defendant has no

residence and therefore no “address.” See Worley, 198 N.C. App.

at 338, 679 S.E.2d at 864. The State can show that defendant

changed his address simply by showing that he was no longer

residing at the last registered address because “everyone does,

at all times, have an ‘address’ of some sort.” Id.

Here, the evidence showed that defendant registered his

address as the Samaritan Ministries, but that defendant had not

been living there for at least the two weeks prior to 26 October

2012. Defendant registered his address on 10 October 2012 as

Samaritan Ministries. When Deputy Holland went to verify

defendant’s address he discovered that Samaritan Ministries had

no record of defendant having stayed there for over two years.

Two employees from Samaritan Ministries testified that they had

no record of defendant staying with them in October 2012. They

further testified that everyone who stayed with them had to be

signed in. The registration card maintained by the shelter
 -14-
showed that defendant’s card had not been stamped since 2008.

Thus, there was substantial evidence showing that defendant

conducted none of the “activities of life” consistent with

residency at the homeless shelter after being released from

prison. Abshire, 363 N.C. at 332, 677 S.E.2d at 451.

As explained in Worley, everyone, at all times, has some

address for purposes of the sex offender registration statutes,

even if it changes daily. Worley, 198 N.C. App. at 338, 679

S.E.2d at 864. Thus, proof that defendant was not living at his

registered address is proof that his address had changed. See

id. at 337, 679 S.E.2d at 863 (“At an absolute minimum, the

record contains evidence tending to show that Defendant left Lee

Walker Heights on or before 10 August 2005 and failed to report

a new address until 16 September 2005.”).

We conclude that the State presented sufficient evidence,

taken in the light most favorable to the State, that defendant

was residing at some address different from the one last

registered without notifying the local sheriff of a change in

address. Therefore, we hold that there was sufficient evidence

that defendant violated N.C. Gen. Stat. § 14-208.11(a)(2) and

that the trial court did not err in denying defendant’s motion

to dismiss.
 -15-
III. Motion to Suppress

Defendant argues that the trial court erred in denying his

motion to suppress his videotaped statement to the police

because the officers failed to properly give the Miranda

warnings. We remand so that the trial court may make adequate

conclusions of law, as required by statute.

Defendant moved to suppress his statements under the Fifth

and Sixth Amendments to the United States Constitution and

Article 1, sections 19, 23, and 24 of the North Carolina

Constitution. The trial court heard the motion before trial on

24 June 2013. It denied the motion orally in court and entered

an order with written findings on 24 June 2013. Defendant

objected to Detective Gargiulo’s testimony regarding what he

said during the interview and to the admission of the DVD of the

interview. Therefore, his challenges to the admission of these

statements have been fully preserved.

The trial court made the following findings, none of which

are contested by defendant:

1. Defendant Omar Andre McFarland is a
convicted sex offender required to comply
with North Carolina’s sex offender registry.

2. On October 20, 2012, Detective Paolo
Gargiulo of the Forsyth County Sheriff’s
Office obtained a warrant for Defendant
McFarland’s arrest for failing to comply
 -16-
with the sex offender registry change of
address requirements.

3. Forsyth County Deputy Ron Lewis tried
unsuccessfully to serve the warrant on
Defendant McFarland on November 7, 2012, but
he did inform friends and family members of
the Defendant that the Defendant should
contact the Sheriff’s Office. Deputy Lewis
did not tell any of the friends or family
that there was a warrant out for the
Defendant.

4. Later that afternoon on November 7,
2012, Defendant McFarland called the
Sheriff’s Office, spoke with Detective
Gargiulo and arranged a meeting for the next
morning (November 8) at 9am. Detective
Gargiulo did not tell Defendant he had a
warrant.

5. Defendant McFarland came, on his own,
to the sheriff’s office November 8, 2012,
signed in and was escorted to an unsecured
interview room. He was not under arrest, but
the interview was recorded by video.

6. Defendant McFarland entered the
interview room alone, but was soon joined by
Detective Gargiulo and Forsyth County
Corporal B. Sales, both of whom were dressed
in plain clothes. Neither gave Defendant any
Miranda warnings.

7. Corporal Sales closed the interview
room door, but it remained unlocked.
Detective Gargiulo told Defendant, “the door
is open—just getting some privacy.” No
officer was guarding the inside or outside
of the interview room.

8. At the end of the interview when he was
arrested, the Defendant was frisked and
 -17-
placed in handcuffs. Prior to then, he was
unrestrained.

The trial court then cited a variety of legal standards from

applicable case law, but never made a conclusion about whether

defendant was in custody at the relevant time, nor did it ever

apply the law it cited to the facts of this case. At the

hearing, the trial court announced that it was going to deny the

motion, but made no oral findings or conclusions.

N.C. Gen. Stat. § 15A–977(f) (2011) provides
that when a trial court rules on a motion to
suppress, “[t]he judge must set forth in the
record his findings of facts and conclusions
of law.” We have interpreted this statute as
mandating a written order unless (1) the
trial court provides its rationale from the
bench, and (2) there are no material
conflicts in the evidence at the suppression
hearing. When a trial court’s failure to
make findings of fact and conclusions of law
is assigned as error, the appropriate
standard of review on appeal is as follows:
The trial court’s ruling on the motion to
suppress is fully reviewable for a
determination as to whether the two criteria
. . . have been met.

If a reviewing court concludes that both
criteria are met, then the findings of fact
are implied by the trial court’s denial of
the motion to suppress. If a reviewing court
concludes that either of the criteria is not
met, then a trial court’s failure to make
findings of fact, contrary to the mandate of
section 15A–977(f), is fatal to the validity
of its ruling and constitutes reversible
error.
 -18-
State v. Morgan, ___ N.C. App. ___, ___, 741 S.E.2d 422, 424-25

(2013) (citations, quotation marks, and brackets omitted).

This case is unusual because although the trial court made

a number of relevant findings of fact, the trial court did not

give any explanation for denying defendant’s motion from the

bench and did not include any conclusions of law in its written

order. The “conclusions of law” in the written order were simply

statements of law such as “4. It is important to consider

circumstances such as a ‘police officer standing guard at the

door, locked doors, or application of handcuffs’ in determining

whether an individual is in custody. State v. Buchanan, 353 N.C.

332 (2001).”

Generally, a conclusion of law requires “the exercise of

judgment” in making a determination, “or the application of

legal principles” to the facts found. Sheffer v. Rardin, 208

N.C. App. 620, 624, 704 S.E.2d 32, 35 (2010) (citations and

quotation marks omitted). Not one of the “conclusions” here

applied the law to the facts of this case. Although we can

imagine how the facts as found by the trial court would likely

fit into the legal standards recited in the section of the order

which is identified as “conclusions of law,” based upon the

trial court’s denial of the motion, it is still the trial
 -19-
court’s responsibility to make the conclusions of law. The

mandatory language of N.C. Gen. Stat. § 15A-977(f) (“The judge

must set forth in the record his findings of facts and

conclusions of law.” (emphasis added)) forces us to conclude

that the trial court’s failure to make any conclusions of law in

the record was error.

“Where there is prejudicial error in the trial court

involving an issue or matter not fully determined by that court,

the reviewing court may remand the cause to the trial court for

appropriate proceedings to determine the issue or matter without

ordering a new trial.” State v. Neal, 210 N.C. App. 645, 656,

709 S.E.2d 463, 470 (2011) (citation and quotation marks

omitted).

If the trial court determines that the
motion to suppress was properly denied, then
defendant would not be entitled to a new
trial because there would have been no error
in the admission of the evidence, and his
convictions would stand. If, however, the
court determines that the motion to suppress
should have been granted, defendant would be
entitled to a new trial.

Id. at 656-57, 709 S.E.2d at 470-71. We have found no other

prejudicial error at defendant’s trial. Therefore, the trial

court’s failure to make adequate conclusions to support its

decision to deny defendant’s motion to suppress does not require
 -20-
that we order a new trial. See State v. Booker, 306 N.C. 302,

313, 293 S.E.2d 78, 84-85 (1982). We remand for the trial court

to make appropriate conclusions of law with regard to

defendant’s motion to suppress.

IV. Conclusion

For the foregoing reasons, we hold that the trial court did

not err in denying defendant’s motion to dismiss. Nevertheless,

the trial court failed to make adequate conclusions of law to

justify its decision to deny defendant’s motion to suppress his

statement. Therefore, we must remand to allow the trial court to

make appropriate conclusions of law based upon the findings of

fact.

NO ERROR in part; REMANDED.

Judges CALABRIA and DAVIS concurs.