                                    NO. COA13-1234

                        NORTH CAROLINA COURT OF APPEALS

                               Filed: 3 June 2014


STATE OF NORTH CAROLINA

    v.                                         Forsyth County
                                               No. 12CRS060943
OMAR ANDRE MCFARLAND,
     Defendant.


    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.


    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.


    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.

                               I.     Background
                                                -2-
       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
                                   -3-
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
                                     -4-
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
                                       -5-
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, the State failed to present

sufficient evidence. We disagree.

A.    Standard of Review

      We review the denial of a motion to dismiss premised on the

alleged   unconstitutionality        of     the   criminal    statute    and   the

insufficiency of the evidence de novo. State v. Buddington, 210

N.C. App. 252, 254, 707 S.E.2d 655, 656 (2011); State v. Fisher,

___ N.C. App. ___, ___, 745 S.E.2d 894, 901, disc. rev. denied,

___ N.C. ___,       752 S.E.2d 470 (2013). “In reviewing challenges
                                      -6-
to the sufficiency of evidence, we must view the evidence in the

light most favorable to the State, giving the State the benefit

of all reasonable inferences. Contradictions and discrepancies

do not warrant dismissal of the case but are for the jury to

resolve.” State v. Highsmith, 173 N.C. App. 600, 605, 619 S.E.2d

586, 590 (2005) (citation and quotation marks omitted).

B.     Void for Vagueness

       Defendant argues that the trial court erred in denying his

motion to dismiss because N.C. Gen. Stat. § 14-208.11 (2011) is

void for vagueness as applied to him. He contends that because

he is homeless, a person of ordinary intelligence person could

not know what “address” means in his case. We hold that the

statute is not so vague that it violates due process.

       Defendant moved to dismiss the charge against him on the

basis that the statute is void for vagueness. Therefore, he has

properly preserved this constitutional challenge. Cf. State v.

Fox,   216   N.C.   App.    153,   158-59,   716    S.E.2d   261,    266   (2011)

(declining to consider the defendant’s argument that the sex

offender registration statute was void for vagueness where he

failed to raise the constitutional issue at trial).

       Defendant was indicted for violating N.C. Gen. Stat. § 14-

208.11(a)(2),       which   establishes      that   a   person      required   to
                                         -7-
register under the sex offender registration statute commits a

Class F felony if he “[f]ails to notify the last registering

sheriff of a change of address as required by this Article.”

N.C. Gen. Stat. § 14-208.9(a) (2011) states, in relevant part,

that “[i]f a person required to register changes address, the

person shall report in person and provide written notice of the

new address not later than the third business day after the

change to the sheriff of the county with whom the person had

last     registered.”        The    statute    does     not     define    the     term

“address.” Defendant contends that the absence of a definition

makes the change-of-address requirement void for vagueness as

applied to him because he was homeless, so he had no “address.”

       “To satisfy due process, a penal statute must define the

criminal offense [1] with sufficient definiteness that ordinary

people can understand what conduct is prohibited and [2] in a

manner    that   does     not      encourage   arbitrary      and    discriminatory

enforcement.     The     void-for-vagueness           doctrine      embraces      these

requirements.” Skilling v. United States, 561 U.S. 358, 402, 177

L.Ed.    2d   619,     656    (2010)     (citation,       quotation      marks,    and

brackets      omitted).       The    North     Carolina       Supreme    Court      has

“expressed an almost identical standard.” State v. Green, 348

N.C. 588, 597, 502 S.E.2d 819, 824 (1998), cert. denied, 525
                                            -8-
U.S.    1111,    142    L.Ed.    2d   783    (1999).      Our   Supreme    Court     has

explained that “[a] statute which either forbids or requires the

doing    of     an   act   in    terms       so   vague    that    men     of   common

intelligence must necessarily guess at its meaning and differ as

to its application violates the first essential of due process

of law.” In re Burrus, 275 N.C. 517, 531, 169 S.E.2d 879, 888

(1969) (citations and quotation marks omitted), aff’d, 403 U.S.

528, 29 L.Ed. 2d 647 (1971).

       “Even so, impossible standards of statutory clarity are not

required by the constitution.                 When the language of a statute

provides an adequate warning as to the conduct it condemns and

prescribes      boundaries       sufficiently        distinct     for     judges     and

juries to interpret and administer it uniformly, constitutional

requirements are fully met.” Id. “What renders a statute vague

is not the possibility that it will sometimes be difficult to

determine whether the incriminating fact it establishes has been

proved; but rather the indeterminacy of precisely what that fact

is.”    United States v. Williams, 553 U.S. 285, 306, 170 L.Ed. 2d

650, 670      (2008). Moreover, “clarity at the requisite level may

be supplied by judicial gloss on an otherwise uncertain statute,

[though]      due      process   bars       courts     from     applying    a      novel

construction of a criminal statute to conduct that neither the
                                        -9-
statute nor any prior judicial decision has fairly disclosed to

be within its scope.”            United States v. Lanier, 520 U.S. 259,

266, 137 L.Ed. 2d 432, 442-43 (1997) (citations omitted). “[T]he

touchstone is whether the statute, either standing alone or as

construed, made it reasonably clear at the relevant time that

the defendant’s conduct was criminal.” Id. at 267, 137 L.Ed. 2d

at 443.

       Our   Supreme     Court   clearly     and   unambiguously      defined   the

term   “address”    as    used   in   N.C.     Gen.   Stat.   §    14-208.11    well

before defendant was released from prison in October 2012. The

Supreme Court explained that

             [r]esidence simply indicates a person’s
             actual place of abode, whether permanent or
             temporary. Thus, a sex offender’s address
             indicates his or her residence, meaning the
             actual place of abode where he or she lives,
             whether permanent or temporary. Notably, a
             person’s residence is distinguishable from a
             person’s domicile.    . . .     Beyond mere
             physical   presence,   activities   possibly
             indicative of a person’s place of residence
             are numerous and diverse, and there are a
             multitude of facts a jury might look to when
             answering whether a sex offender has changed
             his or her address.

State v. Abshire, 363 N.C. 322, 331-32, 677 S.E.2d 444, 450-51

(2009) (citations and quotation marks omitted).

       Further,    this     Court     has     applied   the       Supreme   Court’s

definition of “address” in a case where, as here, the defendant
                                         -10-
was homeless. In State v. Worley, we held that “everyone does,

at all times, have an ‘address’ of some sort, even if it is a

homeless shelter, a location under a bridge or some similar

place.” State v. Worley, 198 N.C. App. 329, 338, 679 S.E.2d 857,

864 (2009). We noted that “[t]he purpose of the sex offender

registration program is to assist law enforcement agencies and

the public in knowing the whereabouts of sex offenders and in

locating them when necessary.” Id. at 334-35, 679 S.E.2d at 862

(citation and quotation marks omitted). As a result, we rejected

the defendant’s argument that homeless sex offenders have no

address    for   purposes    of    the    registration       statutes,     reasoning

that a contrary holding would render “such individuals . . .

effectively immune from the registration requirements found in

current law as long as they continued to ‘drift.’” Id. at 338,

679 S.E.2d at 864.

      Even   assuming       that    the    language      of    the    statute      is

ambiguous, defendant had full notice of what was required of

him, given the judicial gloss that the appellate courts have put

on   it.   See   Lanier,    520    U.S.    at   267,   137    L.Ed.   2d    at   443.

Certainly after Abshire and Worley, if not before, a person of

reasonable intelligence would understand that a sex offender is

required to inform the local sheriff’s office of the physical
                                      -11-
location   where    he    resides    within    three   business     days   of    a

change,    even    if    that   location     changes   from   one   bridge      to

another, or one couch to another.             Worley, 198 N.C. App. at 338,

679 S.E.2d at 864.         Although this obligation undoubtedly places

a large burden on homeless sex offenders, it is clear that they

bear such a burden under N.C. Gen. Stat. § 14-208.9 and that

under N.C. Gen. Stat. § 14-208.11(a)(2) they may be punished for

willfully failing to meet the obligation. Moreover, the fact

that it may sometimes be difficult to discern when a homeless

sex   offender     changes      addresses    does   not   make    the   statute

unconstitutionally vague or relieve him of the obligation to

inform the relevant sheriff’s office when he changes addresses.

See Williams, 553 U.S. at 306, 170 L.Ed. 2d at 670.

      Here, the notice actually given to defendant by the local

sheriff’s office when he registered, and signed by defendant,

reflected this obligation. The statement initialed by defendant

stated, “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.”

      We hold that N.C. Gen. Stat. § 14-208.11 is not void for

vagueness as applied to defendant because a person of ordinary

intelligence in defendant’s circumstances would understand what
                                      -12-
was required of him. See Burrus, 275 N.C. at 531, 169 S.E.2d at

888.     Therefore,    the   trial    court     did    not   err     in    denying

defendant’s motion to dismiss on this basis.

C.     Sufficiency of the Evidence

       Defendant next argues that even if the statute is not void

for vagueness the State failed to present sufficient evidence

that   he    changed   addresses.      He    acknowledges    that        the   State

presented evidence that he was not residing at his registered

address,      the   Samaritan’s      Ministries       homeless     shelter,     but

reasons that the State never presented any evidence of where he

was actually residing because he was moving from place to place

and had no permanent “address.”             But that is not what the State

is required to prove.

             [T]he offense of failing to notify the
             appropriate sheriff of a sex offender’s
             change of address contains three essential
             elements: (1) the defendant is a person
             required to register; (2) the defendant
             changes his or her address; and (3) the
             defendant willfully fails to notify the last
             registering   sheriff  of   the   change  of
             address, not later than the third day after
             the change.

State v. Fox, 216 N.C. App. 153, 156-57, 716 S.E.2d 261, 264-65

(2011)      (citations,   quotation     marks,    ellipses,        and    brackets

omitted).      Defendant does not contest that he was required to

register and that he never notified the last registering sheriff
                                        -13-
of a new address. He simply contends that because he had no new

address, the State cannot show that it changed.

     The State is not            required to show what defendant’s new

address was. The State is simply required to show that defendant

changed his address. Defendant’s argument is similar to the one

we   rejected    in    Worley,     that     a    homeless    defendant     has    no

residence and therefore no “address.” See Worley, 198 N.C. App.

at 338, 679 S.E.2d at 864. The State can show that defendant

changed his address simply by showing that he was no longer

residing at the last registered address because “everyone does,

at all times, have an ‘address’ of some sort.” Id.

     Here,     the    evidence    showed    that   defendant    registered       his

address as the Samaritan Ministries, but that defendant had not

been living there for at least the two weeks prior to 26 October

2012. Defendant registered his address on 10 October 2012 as

Samaritan      Ministries.       When   Deputy     Holland    went    to    verify

defendant’s address he discovered that Samaritan Ministries had

no record of defendant having stayed there for over two years.

Two employees from Samaritan Ministries testified that they had

no record of defendant staying with them in October 2012.                        They

further testified that everyone who stayed with them had to be

signed   in.    The    registration       card   maintained    by    the   shelter
                                        -14-
showed that defendant’s card had not been stamped since 2008.

Thus,   there    was    substantial      evidence     showing    that   defendant

conducted   none       of    the   “activities   of   life”     consistent    with

residency   at   the        homeless   shelter   after   being    released    from

prison. Abshire, 363 N.C. at 332, 677 S.E.2d at 451.

      As explained in Worley, everyone, at all times, has some

address for purposes of the sex offender registration statutes,

even if it changes daily. Worley, 198 N.C. App. at 338, 679

S.E.2d at 864. Thus, proof that defendant was not living at his

registered address is proof that his address had changed. See

id. at 337, 679 S.E.2d at 863 (“At an absolute minimum, the

record contains evidence tending to show that Defendant left Lee

Walker Heights on or before 10 August 2005 and failed to report

a new address until 16 September 2005.”).

      We conclude that the State presented sufficient evidence,

taken in the light most favorable to the State, that defendant

was   residing     at       some   address   different   from    the    one   last

registered without notifying the local sheriff of a change in

address. Therefore, we hold that there was sufficient evidence

that defendant violated N.C. Gen. Stat. § 14-208.11(a)(2) and

that the trial court did not err in denying defendant’s motion

to dismiss.
                                             -15-
                               III. Motion to Suppress

       Defendant argues that the trial court erred in denying his

motion    to       suppress     his    videotaped        statement    to    the    police

because       the    officers     failed      to     properly      give    the    Miranda

warnings. We remand so that the trial court may make adequate

conclusions of law, as required by statute.

       Defendant moved to suppress his statements under the Fifth

and   Sixth        Amendments    to    the    United      States     Constitution        and

Article       1,    sections    19,     23,   and    24    of   the   North      Carolina

Constitution. The trial court heard the motion before trial on

24 June 2013. It denied the motion orally in court and entered

an    order    with     written       findings      on   24   June    2013.      Defendant

objected      to    Detective     Gargiulo’s        testimony      regarding      what    he

said during the interview and to the admission of the DVD of the

interview.          Therefore, his challenges to the admission of these

statements have been fully preserved.

       The trial court made the following findings, none of which

are contested by defendant:

               1.   Defendant Omar Andre McFarland is a
               convicted sex offender required to comply
               with North Carolina’s sex offender registry.

               2.   On October 20, 2012, Detective Paolo
               Gargiulo of the Forsyth County Sheriff’s
               Office obtained a warrant for Defendant
               McFarland’s arrest for failing to comply
                    -16-
with the sex offender      registry   change   of
address requirements.

3.   Forsyth County Deputy Ron Lewis tried
unsuccessfully to serve the warrant on
Defendant McFarland on November 7, 2012, but
he did inform friends and family members of
the Defendant that the Defendant should
contact the Sheriff’s Office. Deputy Lewis
did not tell any of the friends or family
that there was a warrant out for the
Defendant.

4.    Later that afternoon on November 7,
2012,    Defendant   McFarland   called   the
Sheriff’s    Office,  spoke   with  Detective
Gargiulo and arranged a meeting for the next
morning (November 8) at 9am.        Detective
Gargiulo did not tell Defendant he had a
warrant.

5.   Defendant McFarland came, on his own,
to the sheriff’s office November 8, 2012,
signed in and was escorted to an unsecured
interview room. He was not under arrest, but
the interview was recorded by video.

6.   Defendant    McFarland   entered    the
interview room alone, but was soon joined by
Detective   Gargiulo   and  Forsyth   County
Corporal B. Sales, both of whom were dressed
in plain clothes. Neither gave Defendant any
Miranda warnings.

7.   Corporal Sales closed the interview
room   door,   but  it   remained  unlocked.
Detective Gargiulo told Defendant, “the door
is open—just getting some privacy.” No
officer was guarding the inside or outside
of the interview room.

8.   At the end of the interview when he was
arrested, the Defendant was frisked and
                                       -17-
              placed in handcuffs. Prior to then, he was
              unrestrained.

The trial court then cited a variety of legal standards from

applicable case law, but never made a conclusion about whether

defendant was in custody at the relevant time, nor did it ever

apply   the    law   it   cited   to   the    facts   of   this   case.   At   the

hearing, the trial court announced that it was going to deny the

motion, but made no oral findings or conclusions.

              N.C. Gen. Stat. § 15A–977(f) (2011) provides
              that when a trial court rules on a motion to
              suppress, “[t]he judge must set forth in the
              record his findings of facts and conclusions
              of law.” We have interpreted this statute as
              mandating a written order unless (1) the
              trial court provides its rationale from the
              bench, and (2) there are no material
              conflicts in the evidence at the suppression
              hearing. When a trial court’s failure to
              make findings of fact and conclusions of law
              is   assigned  as   error,   the  appropriate
              standard of review on appeal is as follows:
              The trial court’s ruling on the motion to
              suppress    is  fully    reviewable   for   a
              determination as to whether the two criteria
              . . . have been met.

              If a reviewing court concludes that both
              criteria are met, then the findings of fact
              are implied by the trial court’s denial of
              the motion to suppress. If a reviewing court
              concludes that either of the criteria is not
              met, then a trial court’s failure to make
              findings of fact, contrary to the mandate of
              section 15A–977(f), is fatal to the validity
              of its ruling and constitutes reversible
              error.
                                             -18-
State v. Morgan, ___ N.C. App. ___, ___, 741 S.E.2d 422, 424-25

(2013) (citations, quotation marks, and brackets omitted).

    This case is unusual because although the trial court made

a number of relevant findings of fact, the trial court did not

give any explanation for denying defendant’s motion from the

bench and did not include any conclusions of law in its written

order. The “conclusions of law” in the written order were simply

statements    of    law   such        as    “4.     It   is    important     to    consider

circumstances such as a ‘police officer standing guard at the

door, locked doors, or application of handcuffs’ in determining

whether an individual is in custody. State v. Buchanan, 353 N.C.

332 (2001).”

    Generally, a conclusion of law requires “the exercise of

judgment”    in    making    a    determination,              “or   the    application    of

legal principles” to the facts found. Sheffer v. Rardin, 208

N.C. App. 620, 624, 704 S.E.2d 32, 35 (2010) (citations and

quotation    marks    omitted).            Not    one    of   the    “conclusions”       here

applied the law to the facts of this case.                                Although we can

imagine how the facts as found by the trial court would likely

fit into the legal standards recited in the section of the order

which is identified as                “conclusions of law,” based upon the

trial   court’s     denial       of    the       motion,      it    is   still    the   trial
                                              -19-
court’s responsibility to make the conclusions of law.                                 The

mandatory language of N.C. Gen. Stat. § 15A-977(f) (“The judge

must    set     forth    in        the   record      his   findings    of    facts     and

conclusions of law.” (emphasis added)) forces us to conclude

that the trial court’s failure to make any conclusions of law in

the record was error.

       “Where    there        is    prejudicial       error   in    the     trial    court

involving an issue or matter not fully determined by that court,

the reviewing court may remand the cause to the trial court for

appropriate proceedings to determine the issue or matter without

ordering a new trial.” State v. Neal, 210 N.C. App. 645, 656,

709    S.E.2d     463,    470        (2011)     (citation     and     quotation      marks

omitted).

              If the trial court determines that the
              motion to suppress was properly denied, then
              defendant would not be entitled to a new
              trial because there would have been no error
              in the admission of the evidence, and his
              convictions would stand. If, however, the
              court determines that the motion to suppress
              should have been granted, defendant would be
              entitled to a new trial.

Id. at 656-57, 709 S.E.2d at 470-71. We have found no other

prejudicial      error    at       defendant’s       trial.   Therefore,      the    trial

court’s   failure        to    make      adequate     conclusions     to    support    its

decision to deny defendant’s motion to suppress does not require
                                -20-
that we order a new trial. See State v. Booker, 306 N.C. 302,

313, 293 S.E.2d 78, 84-85 (1982). We remand for the trial court

to   make   appropriate   conclusions   of   law   with   regard   to

defendant’s motion to suppress.

                          IV.   Conclusion

     For the foregoing reasons, we hold that the trial court did

not err in denying defendant’s motion to dismiss. Nevertheless,

the trial court failed to make adequate conclusions of law to

justify its decision to deny defendant’s motion to suppress his

statement. Therefore, we must remand to allow the trial court to

make appropriate conclusions of law based upon the findings of

fact.

     NO ERROR in part; REMANDED.

     Judges CALABRIA and DAVIS concurs.
