Court of Appeals Rules Pattern Jury Instruction Inadequate in Felony Indecent Exposure Case

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Last month, the court of appeals ruled that the pattern jury instruction for felony indecent exposure was inadequate given the facts of the case before it. The case is State v. Hoyle.

Facts. A woman and her young son had just arrived home. She was unloading groceries and he was playing near a tree in the front yard. A man pulled up in his car and engaged the woman in conversation, first asking for directions, then seeking to work on the house. The man offered her his business card, and when she approached the car to accept it, she saw that he “had his hand on his exposed penis.” She stumbled back and fell down, then ran into the house with her son, who had been playing about 20 feet away. The man drove off, laughing.

Procedural history. The woman was able to identify the man. He was charged with misdemeanor indecent exposure for exposing himself in the presence of the woman, and felony indecent exposure for exposing himself in the presence of the child. See G.S. 14-190.9 (defining several indecent exposure offenses). He was convicted of both offenses and appealed, focusing on the felony.

Majority opinion. The defendant first argued that there was insufficient evidence that the exposure was “in the presence of” the child. The parties agreed that the State was not required to prove that the child had seen the man’s genitals. See, e.g., State v. Fusco, 136 N.C. App. 268 (1999) (indecent exposure requires exposure in the presence of another person, but “[t]he victim need not actually see what is being exposed”). But the defendant contended that it wasn’t just that the child didn’t see the man’s private parts – he couldn’t see them, at least “without . . . mov[ing] away from the tree he was playing on, go[ing] up to the road, mov[ing] his mother out of the way, and lean[ing] into the passenger window.” The majority disagreed, ruling without extensive discussion that “[t]he evidence and circumstances in this case . . . were sufficient to withstand defendant’s motion to dismiss.”

However, the majority agreed with the defendant’s alternative argument that the trial court had erred by refusing his request for a special jury instruction on the issue of presence. The trial judge gave the pattern instruction, N.C.P.I. – Crim. 238.17A, which states only that it is necessary that “the exposure was in the presence of at least one other person.” The pattern instruction does not further define presence, though a footnote, which the trial judge read to the jury, indicates that “[t]he victim need not actually see what is being exposed.” The defendant “requested that . . . the trial court additionally instruct that” while the person need not actually see what is being exposed, it is necessary “that the person could have seen had they looked.” The majority determined that the requested instruction was a correct statement of the law and was not covered by the pattern instruction, and likely left the jury considering only the proximity of the child to the defendant. For that reason, the court ordered a new trial.

The dissent. A dissenting judge noted that when the indecent exposure statute was enacted, the General Assembly directed that it be “interpreted in such manner as to be as expansive as the [state and federal constitutions] permit.” That judge viewed the “could have seen had they looked” standard as a narrow reading of the presence requirement and so as inconsistent with legislative intent.

Comment. Further review is obviously possible given the dissent. If this opinion stands, though, a revision of the pattern instruction appears to be in order. As a practical matter, the opinion may clarify an issue that could arise in a number of factual contexts. To give one example, suppose that a man is driving when he is struck by a sudden urge to pee. He pulls onto the shoulder, and, shielded from traffic by his vehicle, relieves himself. In some sense, the man is in the presence of passing motorists — but they can’t see his private parts because of the position of the vehicle. Under Hoyle, at least, I don’t think that would be indecent exposure.

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