State v. Pugh

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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