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
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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.
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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 
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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 
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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.
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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 
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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 
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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.