State v. PughÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-323
Filed: 1 December 2015
Cumberland County, No. 13CRS056564
STATE OF NORTH CAROLINA
v.
JAMES KEITH PUGH, Defendant.
Appeal by defendant from judgment entered on or about 20 August 2014 by
Judge Robert F. Floyd, Jr. in Superior Court, Cumberland County. Heard in the
Court of Appeals 23 September 2015.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Tiffany Y.
Lucas, for the State.
Paul F. Herzog, for defendant-appellant.
STROUD, Judge.
Defendant appeals judgment entered upon a jury verdict finding him guilty of
indecent exposure in the presence of a minor. For the following reasons, we conclude
there was no error.
I. Background
Ms. Smith1 and her four-year-old daughter were defendant’s next-door
neighbors. The State’s evidence tended to show that on 13 May 2013, at
1 We have used a pseudonym for the complaining witness to protect her privacy.
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Opinion of the Court
approximately 3:00 pm Ms. Smith and her daughter saw defendant masturbating in
front of his garage. On or about 9 December 2013, defendant was indicted for
felonious indecent exposure. After a trial, the jury found defendant guilty, and the
trial court entered a judgment suspending defendant’s active sentence and
sentencing him to 30 months of supervised probation. Defendant appeals.
II. Motion to Dismiss
Defendant contends that the trial court should have granted his motions to
dismiss. “Upon defendant’s motion for dismissal, the question for the Court is
whether there is substantial evidence (1) of each essential element of the offense
charged, or of a lesser offense included therein, and (2) of defendant’s being the
perpetrator of such offense. If so, the motion is properly denied.” State v. Scott, 356
N.C. 591, 595, 573 S.E.2d 866, 868 (2002).
The elements of felony indecent exposure are that an
adult willfully expose the adult’s private parts (1) in a
public place, (2) in the presence of a person less than
sixteen years old, and (3) for the purpose of arousing or
gratifying sexual desire. N.C. Gen. Stat. § 14–190.9(a1)
(2013).
State v. Waddell, ___ N.C. App. ___, ___, 767 S.E.2d 921, 922 (2015) (quotation marks
omitted).
Defendant argues that because he was on his own property he was not in a
“public place.” In the context of indecent exposure, our Supreme Court has defined a
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Opinion of the Court
“public place” as “a place which in point of fact is public as distinguished from private,
but not necessarily a place devoted solely to the uses of the public, a place that is
visited by many persons and to which the neighboring public may have resort, a place
which is accessible to the public and visited by many persons.” State v. King, 268
N.C. 711, 711, 151 S.E.2d 566, 567 (1966) (citations and quotation marks omitted);
see State v. Fusco, 136 N.C. App. 268, 271, 523 S.E.2d 741, 743 (1999) (concluding
that it was “an accurate statement of the law” to instruct the jury that “[a] public
place is a place which is viewable from any location open to the view of the public at
large”).
The evidence showed that defendant’s garage was directly off a public road and
that his garage door opening was in full view from the street. Furthermore,
defendant’s property shared a driveway with Ms. Smith’s property, and his garage
was in full view from the front of her house. Defendant was standing on his own
property, but his exposure was in a “public place” because he was easily visible from
the public road, from the shared driveway, and from his neighbor’s home. See id.
Therefore, the trial court did not err in denying defendant’s motion to dismiss, and
this argument is overruled.
II. Jury Instructions
Defendant next contends that the trial court erred in instructing the jury on
the element of “public place,” arguing that the trial court incorrectly instructed the
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Opinion of the Court
jury that “[a] public place is a place which is viewable from any location open to the
view of the public at large.”2 Defendant objected both before the instructions were
given and after. We review this issue as to the jury instruction
contextually and in its entirety. The charge will be held to
be sufficient if it presents the law of the case in such
manner as to leave no reasonable cause to believe the jury
was misled or misinformed. Under such a standard of
review, it is not enough for the appealing party to show that
error occurred in the jury instructions; rather, it must be
demonstrated that such error was likely, in light of the
entire charge, to mislead the jury.
State v. Glynn, 178 N.C. App. 689, 693, 632 S.E.2d 551, 554 (citation, quotation
marks, ellipses, and brackets omitted), disc. review denied and appeal dismissed, 360
N.C. 651, 637 S.E.2d 180 (2006). The instruction defendant contests is a verbatim
quote from the jury instruction used in Fusco, and this Court determined it was “an
accurate statement of the law” to instruct the jury that “[a] public place is a place
which is viewable from any location open to the view of the public at large.” 136 N.C.
App. at 271, 523 S.E.2d at 743. Therefore, we conclude there was no error in the trial
court’s jury instruction.
Defendant also contends that although he did not request this instruction, it
was plain error for the trial court not to instruct the jury that the defendant must
have been in view of the public “with the naked eye and without resort to
2Due to an error in recordation, the trial court’s full jury instructions were not provided in the
transcript but instead were reconstructed in the record on appeal.
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Opinion of the Court
technological aids such as telescopes” and the like. Defendant presents several
hypothetical arguments in which a man lives in a house which “is set back from the
highway [and other houses] by no less than 2500 feet” and he sunbathes in the nude
on his porch or in his yard. Various hypothetical women who are not on his property
but are using a camera with a telephoto lens, binoculars, a small plane, or a law-
enforcement-owned drone then see him, au naturel. Although defendant’s
hypothetical arguments are interesting, there was absolutely no evidence of any
“technological aids” used to view defendant in this case. Ms. Smith and her daughter
were simply getting out of the car with their groceries when, with their non-
technologically-aided eyes, they saw defendant in front of his garage next door. Even
if an instruction regarding “technological aids” may be appropriate some cases, it is
not needed where the evidence entirely fails to support it; so the absence of this
instruction is not error, much less plain error. See State v. Saunders, ___ N.C. App.
___, ___, 768 S.E.2d 340, 342 (2015) (noting that for error to be plain error it must
have “had a probable impact on the jury verdict”). This argument is overruled.
III. Conclusion
For the foregoing reasons, we conclude there was no error.
NO ERROR.
Judges CALABRIA and INMAN concur.
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