IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-207
Filed: 19 July 2016
Wilkes County, No. 14CRS051950
STATE OF NORTH CAROLINA
v.
ARVIN ROSCOE HAYES, Defendant.
Appeal by Defendant from judgments entered 17 September 2015 by Judge R.
Stuart Albright in Wilkes County Superior Court. Heard in the Court of Appeals 6
June 2016.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Daniel
Snipes Johnson, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
Grant, for the Defendant.
DILLON, Judge.
Arvin Roscoe Hayes (“Defendant”) appeals from a jury verdict finding him
guilty of felony indecent exposure in the presence of a female victim under the age of
sixteen (16) and misdemeanor indecent exposure in the presence of an adult female
victim. We find no error in Defendant’s conviction for felony indecent exposure.
However, for the following reasons, we arrest judgment on the conviction of
misdemeanor indecent exposure and remand this case to the trial court for
resentencing.
STATE V. HAYES
Opinion of the Court
I. Background
The evidence tended to show the following: In July 2014, S.C. (“Mother”) and
her three daughters were shopping at a retail store in Wilkesboro. Mother and her
thirteen-year-old daughter, D.C. (“Daughter”), noticed that Defendant was following
them from aisle to aisle and that he was staring at them. At one point, while
Defendant was standing two feet away from Mother and Daughter, Mother saw him
grabbing and rubbing his penis, part of which was sticking out of his pants. Mother
and her daughters went to the store clerk and asked the clerk to call the police.
Defendant was later apprehended in a nearby store and identified by Mother.
Defendant was charged and convicted of felony indecent exposure (for exposing
himself to Daughter) and misdemeanor indecent exposure (for exposing himself to
Mother). The jury returned guilty verdicts for all charges, and Defendant was
sentenced accordingly. Defendant timely appealed.
II. Standard of Review
If a trial court enters judgment on multiple charges, in violation of a statutory
mandate, that issue is automatically preserved for appeal. State v. Braxton, 352 N.C.
158, 177, 531 S.E.2d 428, 439 (2000). Issues of statutory construction are questions
of law which we review de novo on appeal, “consider[ing] the matter anew and freely
substitut[ing] our judgment for the judgment of the lower court.” Lunsford v. Mills,
367 N.C. 618, 623, 766 S.E.2d 297, 301 (2014).
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STATE V. HAYES
Opinion of the Court
III. Analysis
The central question to this appeal is whether Defendant’s one instance of
exposing himself to multiple people, one of which was a minor, may result in both a
felony and a misdemeanor charge. Defendant argues that the misdemeanor statute
precludes him from being found guilty of both misdemeanor and felonious indecent
exposure. We agree.
This question is one of statutory interpretation. “In matters of statutory
construction, our primary task is to ensure that the purpose of the legislature . . . is
accomplished. Legislative purpose is first ascertained from the plain words of the
statute.” State v. Anthony, 351 N.C. 611, 614, 528 S.E.2d 321, 322 (2000). A statute’s
words carry their “natural and ordinary meaning” when an alternative meaning is
not provided within the statute and those words are “clear and unambiguous.”
Lunsford, 367 N.C. at 623, 766 S.E.2d at 301 (citing In re Banks, 295 N.C. 236, 239,
244 S.E.2d 386, 388-89 (1978)).
Defendant was convicted of misdemeanor indecent exposure pursuant to N.C.
Gen. Stat. § 14-190.9(a) (the “Misdemeanor Statute”), which provides as follows:
(a) Unless the conduct is punishable under subsection (a1) of this section,
any person who shall willfully expose the private parts of his or her
person in any public place and in the presence of any other person or
persons . . . shall be guilty of a Class 2 misdemeanor.
N.C. Gen. Stat § 14-190.9(a) (2013) (emphasis added). Under the plain words of the
statute, Defendant’s conduct in the present case subjects him to criminal liability for
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STATE V. HAYES
Opinion of the Court
a single misdemeanor count, even though multiple “persons” may have witnessed his
behavior, unless his conduct is otherwise punishable as a felony under subsection (a1)
of that statute (the “Felony Statute”). The Felony Statute provides as follows:
(a1) Unless the conduct is prohibited by another law providing greater
punishment, any person at least 18 years of age who shall willfully
expose the private parts of his or her person in any public place in the
presence of any other person less than 16 years of age for the purpose of
arousing or gratifying sexual desire shall be guilty of a Class H felony.
N.C. Gen. Stat § 14-190.9(a1) (2013). And here, Defendant was, in fact, convicted of
a felony under subsection (a1) since one of the witnesses (Daughter) was under 16
years of age.1
The State argues that well-established North Carolina law permits a
defendant to be punished for multiple crimes resulting from conduct that had
multiple victims. For common law crimes such as assault and armed robbery, we
have upheld the constitutionality of pursuing multiple charges resulting from the
same conduct. State v. Nash, 86 N.C. 650, 652 (1882); State v. Johnson, 23 N.C. App.
52, 55-56, 208 S.E.2d 206, 208-09 (1974). Using the “same evidence” doctrine, we
allow multiple indictments for the same general course of conduct if the State would
1 In fact, the statute does not even require the victim to see the defendant’s exposed body part;
it only requires for the defendant to be “in the presence” of a victim. Our Court recently considered
this issue in State v. Waddell, in which the defendant was convicted of felony indecent exposure for
exposing himself to a woman, her mother, and her fourteen-month-old son. See State v. Waddell, ___
N.C. App. ___, ___, 767 S.E.2d 921, 924 (2015) (noting that “[i]n order to convict a defendant of indecent
exposure in public, the exposure need only be in the presence of another person; it need not be seen by,
let alone directed at, another person”).
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STATE V. HAYES
Opinion of the Court
require different evidence to prove each offense. State v. Hicks, 233 N.C. 511, 516, 64
S.E.2d 871, 875 (1951). For example, an assault on multiple people would require
separate showings that each person in the crowd was, in fact, assaulted. See State v.
Church, 231 N.C. 39, 43, 55 S.E.2d 792, 796 (1949).
We recognize that under the “same evidence” doctrine, both Defendant’s felony
and misdemeanor convictions would likely stand. The State would have to prove that
Daughter was present when Defendant exposed himself in order to support the felony
charge, and would have to prove that Mother was present when Defendant exposed
himself in order to support the misdemeanor charge. These two crimes would require
different evidence to prove each count. However, we are faced with a question of
statutory interpretation, not a double jeopardy challenge. See State v. Mansfield, 207
N.C. 233, 176 S.E. 761 (1934). The Misdemeanor Statute plainly forbids conduct from
being the basis of a misdemeanor conviction if it is also punishable as felony indecent
exposure.
If a trial court improperly convicts a defendant under two statutes for actions
stemming from the same conduct, the proper relief is arrestment of the judgment and
remand for resentencing. See State v. Coakley, ___ N.C. App. ___, ___, 767 S.E.2d
418, 426 (2014). Accordingly, we arrest judgment on Defendant’s conviction of
misdemeanor indecent exposure and remand this matter for resentencing.
JUDGMENT ARRESTED AND REMANDED IN PART, NO ERROR IN PART.
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STATE V. HAYES
Opinion of the Court
Chief Judge McGEE and Judge HUNTER, JR., concur.
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