State v. Runyon

An unpublished opinion of the North Carolina Court of Appeals does not constitute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