An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                              NO. COA13-579
                     NORTH CAROLINA COURT OF APPEALS

                          Filed:    7 January 2014


STATE OF NORTH CAROLINA

      v.                                 Mecklenburg County
                                         No. 11 CRS 232023
CHARLES VAN PEAY,
     Defendant.


      Appeal by defendant from judgment entered 13 December 2012

by Judge Alexander Mendaloff III in Mecklenburg County Superior

Court.     Heard in the Court of Appeals 4 November 2013.


      Roy Cooper, Attorney General, by Kimberly                 N.   Callahan,
      Assistant Attorney General, for the State.

      Charlotte Gail Blake, for defendant-appellant.


      MARTIN, Chief Judge.


      Defendant Charles Van Peay appeals from a judgment entered

upon a jury verdict finding him guilty of failure to register as

a sex offender by failing to notify the sheriff’s office of an

address change.      For the reasons stated herein, we find no error

in defendant’s trial.

      Defendant was convicted of second-degree rape in 1978.                  As
                                        -2-
a result of this conviction, defendant was required to register

as a sex offender in the county in which he resided pursuant to

N.C.G.S. § 14–208.7(a).         Defendant received and signed a letter,

dated 31 October 2008, notifying him of statutory amendments

that    required   him    to   appear    in   person   and    provide    written

notification of an address change to the sheriff’s office of the

county with which he had last registered within three days of

the change.

       Defendant submitted written notice of a change of address

to the Mecklenburg County sheriff’s office, reporting the Men’s

Shelter of Charlotte as his address, on 17 December 2010.                    On 6

May 2011, defendant signed an address verification letter he

received from the State, verifying his residence at the Men’s

Shelter.      After   6   May    2011,    defendant     did   not   notify    the

sheriff’s office of any change in his address until 11 July

2011.      Attendance     records   from      the   Men’s   Shelter,    however,

indicate that defendant did not stay at the facility after 7

June 2011 until 30 June 2011.            The records further showed that

defendant did not stay at the Men’s Shelter again after 30 June

2011.

       Defendant was subsequently indicted for violating N.C.G.S.

§ 14–208.11 by failing to provide written notice of his change

of address to the sheriff’s office within the required three-day
                                        -3-
period.    At trial, defendant filed a motion to dismiss as well

as a “Motion in Limine to Exclude Evidence Obtained in Violation

of N.C.G.S. § 122C.”1          These motions were heard prior to jury

selection.       Defendant     argued    both    motions    in    tandem   on   the

grounds that the Men’s Shelter was a facility covered under

N.C.G.S.     §   122C   and,    therefore,      information       regarding     his

presence at or absence from the Men’s Shelter was confidential

information      that   was   unlawfully      disclosed    to    law   enforcement

officers without defendant’s express authorization.

    The State requested that the trial court summarily deny the

motion to exclude, arguing that the motion was equivalent to a

motion to suppress and did not include a supporting affidavit as

required by N.C.G.S. § 15A-977.               Without ruling on the State’s
1
  We treat defendant’s “Motion in Limine to Exclude Evidence
Obtained in Violation of N.C.G.S. § 122C” as a motion to
suppress evidence.     “Upon timely motion, evidence must be
suppressed if:      (1) Its exclusion is required by the
Constitution of the United States or the Constitution of the
State of North Carolina.”      N.C. Gen. Stat. § 15A–974(a)(1)
(2011).    Because defendant moved to exclude the evidence
“pursuant to Article I, Sections Nineteen and Twenty-Three of
the North Carolina Constitution,” his motion is treated as a
motion to suppress under N.C.G.S. § 15A-974(a)(1) and is subject
to the procedural requirements of N.C.G.S. § 15A-977. See State
v. Reavis, 207 N.C. App. 218, 222, 700 S.E.2d 33, 36–37 (“The
legal grounds upon which defendant sought the exclusion of the
recorded interview were constitutional, so a pretrial motion to
suppress was required.”), disc. review denied, 364 N.C. 620, 705
S.E.2d 369 (2010); State v. Conard, 54 N.C. App. 243, 244, 282
S.E.2d 501, 503 (1983) (“The exclusive method of challenging the
admissibility of evidence upon the grounds specified in G.S. §
15A-974 is a motion to suppress evidence which complies with the
procedural requirements of G.S. § 15A-971 et seq.”).
                                            -4-
request,      the    trial     court    allowed         defendant         to    call    Ashley

Milano-Barnett, the associate director for client services at

the   Men’s      Shelter,      to    testify      for    the    limited          purpose    of

determining whether the Men’s Shelter was a facility covered

under    N.C.G.S.      §     122C    and     thus    subject         to    the        statute’s

restrictions against the disclosure of confidential information.

Ms. Milano-Barnett was the only witness to testify at the voir

dire hearing.

      On voir dire, Ms. Milano-Barnett testified that the Men’s

Shelter is a private, nonprofit organization that voluntarily

adheres to the regulations under N.C.G.S. § 122C; however, it is

not   legally       required    to     do   so.      Ms.    Milano-Barnett              further

testified       regarding      the   Men’s     Shelter’s        operating            procedures

manual, which sets forth the facility’s policies for the release

of    confidential         information.             While      the    stated           policies

generally follow the provisions of N.C.G.S. § 122C, the manual

also includes an exception for the release of information to law

enforcement officers that is not provided under the statute.

The exception states that the Men’s Shelter will provide law

enforcement officers information limited to whether a person has

stayed     at    the    facility       and     confirmation          of        the     person’s

identity.       Persons staying at the Men’s Shelter are informed at

the time of admission that disclosure may be made of pertinent
                                       -5-
information without their written consent.

    After   hearing     the    parties’       arguments,    the   trial   court

orally denied both of defendant’s motions and declined to make

findings of fact as to its ruling.             A jury convicted defendant,

and the trial court entered judgment sentencing defendant to a

term of 25 to 30 months imprisonment.            Defendant appeals.

                        _________________________

    Defendant’s sole argument on appeal is that the trial court

erred by denying his motions without making findings of fact.

Defendant contends there was a material conflict in the evidence

presented on voir dire as to whether the Men’s Shelter was a

covered facility and required to comply with the confidentiality

restrictions of N.C.G.S.        §     122C.     This conflict, he argues,

required the trial court to make findings of fact when ruling on

the motions.   We disagree.

    Our   review   of    a    trial    court’s    ruling    on    a   motion   to

suppress evidence “is strictly limited to determining whether

the trial judge’s underlying findings of fact are supported by

competent evidence, in which event they are conclusively binding

on appeal, and whether those factual findings in turn support

the judge’s ultimate conclusions of law.”              State v. Cooke, 306

N.C. 132, 134, 291 S.E.2d 618, 619 (1982).                 When a trial court

conducts a voir dire hearing to determine the admissibility of
                                    -6-
evidence, the court generally should make findings of fact to

show the bases of its ruling.        State v. Phillips, 300 N.C. 678,

685, 268 S.E.2d 452, 457 (1980).             Where there is no material

conflict in the evidence offered on voir dire, however, findings

of fact are not required, although it is the better practice for

the trial court to make them.         Id.     In the event there is no

material conflict in the evidence and the trial court makes no

findings of fact, “the necessary findings are implied from the

admission of the challenged evidence.”         Id.

    “[A] material conflict in the evidence exists when evidence

presented   by   one   party   controverts    evidence   presented   by   an

opposing party such that the outcome of the matter to be decided

is likely to be affected.”        State v. Baker, 208 N.C. App. 376,

384, 702 S.E.2d 825, 831 (2010).             A material conflict in the

evidence therefore does not exist where the evidence presented

on voir dire is unchallenged by the opposing party.            See, e.g.,

State v. Williams, 195 N.C. App. 554, 555–56, 673 S.E.2d 394,

395 (2009) (concluding that no material conflict in the evidence

existed where only one witness testified in connection with the

State’s motion to suppress and defendant presented no evidence),

appeal after remand, 204 N.C. App. 212, 694 S.E.2d 522 (2010);

State v. Thompson, 187 N.C. App. 341, 348, 654 S.E.2d 486, 491

(2007) (“In the case sub judice, there was no conflict in the
                                           -7-
evidence,      as   Greene   was     the    only    voir    dire    witness      on   the

issue.”).      Furthermore, a material conflict in the evidence does

not    arise   where    a    party    merely       cross-examines      the      opposing

party’s witness.        See Baker, 208 N.C. App. at 383, 702 S.E.2d at

830.    Thus, while it is the better practice for a trial court to

make findings of fact after a voir dire hearing, failure to make

findings of fact is not fatal where the evidence presented is

unchallenged by the opposing party.                   See State v. Gurkins, 19

N.C. App. 226, 230, 198 S.E.2d 448, 451 (1973).

       In   this    case,    the    trial    court    did    not    err    by   denying

defendant’s motion to suppress without making findings of fact.

 The   court    could   have       summarily     denied     the    motion    based    on

defendant’s failure to submit an accompanying affidavit alone.

See N.C. Gen. Stat. § 15A-977(c)(2) (2011).                        Nevertheless, the

court properly exercised its discretion and held a voir dire

hearing on the motion.             See State v. O'Connor, __ N.C. App. __,

__, 730 S.E.2d 248, 251–52 (2012) (concluding that the trial

court did not err by proceeding to conduct a voir dire hearing

on defendant’s motion to suppress where the court could have

summarily denied the motion for lack of an adequate accompanying

affidavit).         On voir dire, the State offered no evidence, and

only Ms. Milano-Barnett testified for the defense.                        Accordingly,

there was no material conflict in the evidence, and the trial
                                              -8-
court was not required to make findings of fact.

       Moreover, the trial court was not required to make findings

of    fact      as   to   its    ruling     on   defendant’s        motion         to    dismiss,

because         no   material      conflict       existed      in       the      evidence      and

defendant failed to offer any evidence of a flagrant violation

of his constitutional rights or irreparable prejudice to the

preparation of his case.                A trial court must grant a motion to

dismiss where “[t]he defendant’s constitutional rights have been

flagrantly violated and there is such irreparable prejudice to

the defendant’s preparation of his case that there is no remedy

but    to     dismiss      the    prosecution.”            N.C.     Gen.         Stat.    §    15A-

954(a)(4) (2011).               “As the movant, [the] defendant bears the

burden of showing the flagrant constitutional violation and of

showing irreparable prejudice to the preparation of his case.”

State      v.    Williams,       362   N.C.      628,   634,      669       S.E.2d      290,   295

(2008).

       A     trial      court    generally       must   conduct         a    hearing      upon   a

motion to dismiss and make findings of fact to show the basis of

its ruling.          See State v. Rasmussen, 158 N.C. App. 544, 561, 582

S.E.2d 44, 56, disc. review denied, 357 N.C. 581, 589 S.E.2d 362

(2003).         As with a motion to suppress, however, a trial court

need    not      make     findings     of   fact    when    ruling          on    a   motion     to

dismiss where there is no material conflict in the evidence.
                                      -9-
See id.; State v. Major, 84 N.C. App. 421, 426, 352 S.E.2d 862,

866 (1987).       Furthermore, if a defendant fails to demonstrate a

flagrant constitutional        violation     or irreparable prejudice to

the preparation of his or her case, the trial court may deny the

defendant’s motion to dismiss without making findings of fact.

See State v. Curmon, 295 N.C. 453, 456–57, 245 S.E.2d 503, 505

(1978) (holding that the trial court did not err by denying

defendant’s motion to dismiss without making specific findings

of   fact     where    the     motion       spoke     only     of   unspecified

constitutional      infringements     and    failed    to    show   irreparable

prejudice to the preparation of his case).

     In     the   present    case,   not    only    was     there   no   material

conflict in the evidence presented on voir dire but defendant

failed to show how the disclosure of information regarding his

presence at or absence from the Men’s Shelter amounted to a

flagrant violation of his constitutional rights or irreparable

prejudice to the preparation of his case.                     Accordingly,    the

trial court did not err in denying defendant’s motions without

making findings of fact.

     No Error.

     Judges STEELMAN and DILLON concur.

     Report per Rule 30(e).
