An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-817
NORTH CAROLINA COURT OF APPEALS
Filed: 20 January 2015
STATE OF NORTH CAROLINA
v. Brunswick County
No. 12 CRS 53763
JONATHAN MICHAEL RUNYON
Appeal by Defendant from judgment entered 22 January 2014
by Judge Claire V. Hill in Brunswick County Superior Court.
Heard in the Court of Appeals 20 November 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Anne J. Brown, for the State.
Michael J. Reece for Defendant.
STEPHENS, Judge.
Facts and Procedural History
This appeal purports to present a question of first
impression: whether N.C. Gen. Stat. § 14-208.18(a)(3), which
makes it a crime for convicted sex offenders to knowingly be at
“any place where minors gather for regularly scheduled
educational, recreational, or social programs[,]” is so vague on
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its face as to be unconstitutional. We hold that Defendant
lacks standing to bring a facial challenge to this statute, and,
accordingly, we dismiss this appeal.
On 8 October 2012 and then by superseding indictment issued
19 August 2013, Defendant Johnathan Michael Runyon was indicted
under section 14-208.18(a)(3). That charge arose from events
which occurred on 31 July 2012 at Spring Lake Park in the town
of Boiling Spring Lakes. At about 1:00 a.m., Officer Gary
Rohauer of the Boiling Springs Police Department (“BSPD”) and
another BSPD officer were patrolling Spring Lake Park (“the
park”). The park consists of a lake with two swimming areas, an
open area for gatherings, a community garden, and two picnic
shelters, but has no playground equipment. The park is open
every day from sunrise to sunset.
Park activities include a “trick or treat” event at
Halloween, a children’s fishing tournament hosted by the BSPD in
April, community concerts, and rentals of the picnic shelters by
individuals and groups for parties and other gatherings. During
the summer, the children’s Junior Master Gardening Club uses the
community garden and groups from area camps sometimes visit the
park. In addition, for eight weeks each summer, the Boiling
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Spring Lakes Summer Camp for children ages 5 to 14 takes place
on park grounds.
On the morning in question, the officers found Defendant,
who lived about 1/8 of a mile from the park, sitting on a
glider-style bench swing near the lake. The swing is not
specifically designed for the use of children, and ashtrays were
placed next to it. The officers knew Defendant and were aware
that he was listed on the sex offender registry. They arrested
Defendant for violating section 14-208.18(a)(3).
The matter came on for trial in January 2014. In addition
to the evidence described supra, an employee of the Brunswick
County Sheriff’s Department testified that, during a meeting
about the legal restrictions resulting from his sex offender
status, Defendant had asked specifically whether he could visit
the park. The employee had “told him that if it was in the
park, he was not allowed to go there.”
At the close of the State’s evidence, Defendant moved to
dismiss the charge, contending that the statute was
unconstitutionally vague both on its face and as applied to him.
The trial court denied Defendant’s motion. The jury returned a
verdict of guilty, and the trial court sentenced Defendant to a
term of 11-23 months in prison, suspended, and imposed 36 months
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of supervised probation. From the judgment entered upon his
conviction on 22 January 2014, Defendant appeals.
Discussion
We begin by addressing the State’s request that we dismiss
Defendant’s appeal, asserting that he (1) has waived his right
to appellate review of his argument and (2) lacks standing to
bring a facial challenge to the constitutionality of the
statute.
Regarding Defendant’s alleged waiver of his right to
appeal, the State acknowledges that Defendant moved to dismiss
the charge, but contends that the record “contains nothing to
indicate that [D]efendant brought his [m]otion to [d]ismiss on
for hearing before any Superior Court Judge or that any Superior
Court Judge ever actually rendered a decision concerning this
[m]otion.” This is incorrect. At the close of the State’s
evidence, defense counsel moved to dismiss the case “based on
the fact that the statute is unconstitutionally vague on it’s
[sic] face and as applied to [Defendant’s] set of facts.” After
hearing brief arguments from each side, the trial court denied
Defendant’s motion.
However, we agree that Defendant lacks standing to bring a
facial challenge to section 14-208.18(a)(3) based on vagueness.
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This Court has previously addressed this very question and ruled
contrary to Defendant’s position:
A litigant who challenges a statute as
unconstitutional must have standing. To
have standing, he must be adversely affected
by the statute.
As a general proposition, the vagueness of a
criminal statute must be judged in the light
of the conduct that is charged to be
violative of the statute. In other words,
the question is whether the statute is
unconstitutionally vague as applied to the
defendant’s actions in the case presented.
Thus a party receiving fair warning, from
the statute, of the criminality of his own
conduct is not entitled to attack the
statute on the ground that its language
would not give fair warning with respect to
other conduct. If, however, the statute
reaches a substantial amount of
constitutionally protected conduct, the
statute is vulnerable to a facial attack.
In this event, the defendant can challenge
the constitutional vagueness of the statute,
even though his conduct clearly is
prohibited by the statute.
A facial challenge to a legislative act is,
of course, the most difficult challenge to
mount successfully. An individual
challenging the facial constitutionality of
a legislative act must establish that no set
of circumstances exists under which the act
would be valid.
We believe there are sets of circumstances
under which the statute is not vague as to
prohibitions regarding a defendant’s
presence at a place. For example, N.C. Gen.
Stat. § 14-208.18(a)(3) would have clearly
prohibited [the d]efendant from entering
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onto a baseball field where children have
regularly scheduled games. One to whose
conduct a statute clearly applies may not
successfully challenge it for vagueness. A
statute which by its terms, or as
authoritatively construed, applies without
question to certain activities, but whose
application to other behavior is uncertain,
is not vague as applied to hard-core
violators of the statute. Therefore, [the
d]efendant does not have standing to bring a
facial challenge against N.C. Gen. Stat. §
14-208.18(a)(3).
State v. Daniels, __ N.C. App. __, __, 741 S.E.2d 354, 362
(2012) (citations, internal quotation marks, and certain
brackets omitted; certain emphasis added), appeal dismissed and
disc. review denied, 366 N.C. 565, 738 S.E.2d 389 (2013). In
that case, this Court went on to conclude that the defendant did
have standing to challenge the statute for vagueness as applied
to the facts of his particular case. Id.
Here, while Defendant moved to dismiss for vagueness of the
statute both on its face and as applied to him, on appeal, he
argues only that the statute is facially vague. As this Court
held in Daniels, “there are sets of circumstances under which
[section 14-208.18(a)(3)] is not vague as to prohibitions
regarding a defendant’s presence at a place.” Id. Thus,
Defendant lacks standing to challenge the facial validity of
this statute. Further, having failed to bring forth any
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argument on appeal regarding the statute’s alleged vagueness as
applied to him, Defendant is deemed to have abandoned that
issue. See N.C.R. App. P. 28(b)(6) (“Issues not presented in a
party’s brief, or in support of which no reason or argument is
stated, will be taken as abandoned.”). Defendant’s appeal is
DISMISSED.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).