Heard in the Court of Appeals March 6, 2014.
Forsyth County. No. 12CRS060943. Susan E. Bray, Judge.
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. Judges CALABRIA and DAVIS concurs.
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.
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.
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 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 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 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, ...