State v. Runyon ( 2015 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute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
    -4-
    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).
    

Document Info

Docket Number: 14-817

Filed Date: 1/20/2015

Precedential Status: Non-Precedential

Modified Date: 1/20/2015