An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                      -2-
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
                                       -3-
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.
                               -5-
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
                                      -6-
            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
                                   -7-
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).
