State v. Hoyle

260 N.C.App. 409

818 S.E.2d 149

STATE of North Carolina

v.Neil Wayne HOYLE

No. COA17-1324

Court of Appeals of North Carolina.

Filed: July 17, 2018

Attorney General Joshua H. Stein, by Special Deputy Attorney General Tiffany Y. Lucas, for the State.

Anne Bleyman, for defendant.

ARROWOOD, Judge.

Neil Wayne Hoyle ("defendant") appeals from judgment entered upon his conviction for felony indecent exposure. For the following reasons, defendant is entitled to a new trial.

I. Background

On 6 June 2016, a Catawba County Grand Jury indicted defendant on one count of felony indecent exposure and one count of misdemeanor indecent exposure based on allegations that defendant exposed himself to a mother and her four-year-old son (the "child") on 16 March 2016. Defendant's case was tried in Catawba County Superior Court before the Honorable Jeffrey P. Hunt beginning on 30 May 2017.

The evidence at trial tended to show that just after the mother and her son arrived home on 16 March 2016, as the mother was unloading groceries and the child was playing in the front yard, a man later identified as defendant pulled up in front of the house with the passenger side of his vehicle facing the house. The road was slightly elevated from the front yard. Defendant first asked for directions. When the mother said she could not help him, defendant offered to work on the house and offered his business card. The mother declined several times, but defendant was persistent that she take his card. The mother approached defendant's vehicle with several grocery bags in her hand to take the card, believing defendant would then leave and she could finish unloading her groceries. The child was swinging on a nearby tree in the front yard, but did not approach defendant's vehicle. As the mother reached into defendant's passenger window and took the card from defendant, she saw that defendant had his hand on his exposed penis. The mother jerked back, dropped her bags, and fell into the small ditch alongside the road. The mother could hear defendant laugh and drive away as she gathered herself, grabbed her son, and ran into the house.

Once inside, the mother called the police. After several minutes, the mother went outside to gather the things she dropped and noticed that defendant's card was on the ground. When the police arrived, the mother told them what happened and gave them defendant's card. The police were able to identify a suspect based on the information on the card and the mother positively identified defendant in a photograph shown to her by the police. Defendant was in his mid-40s.

The mother testified that defendant never verbally acknowledged the child, but did look over at him. The mother also testified that she did not think the child saw what defendant was doing. Based on the mother's description of the events and analysis of the scene, the investigating officer testified that the child was approximately 20 feet away from the location where defendant pulled up in front of the house. The tree the child was playing on was approximately 14 feet away from the location where defendant pulled up in front of the house.

Defendant turned himself in to police on 18 March 2016. At that time, defendant was questioned and arrested. Defendant acknowledged that he pulled up to the house and interacted with the mother. Defendant, however, denied exposing himself.

On 1 June 2017, the jury returned verdicts finding defendant guilty of felony indecent exposure and misdemeanor indecent exposure. The trial court entered judgment on felony indecent exposure sentencing defendant to a term of 10 to 21 months imprisonment and imposing sex offender registration and satellite-based monitoring requirements on defendant upon his release. The trial court arrested judgment on misdemeanor indecent exposure. Defendant gave notice of appeal in open court.

II. Discussion

On appeal, defendant challenges the trial court's denial of his motions to dismiss and his request for a special jury instruction for felony indecent exposure.

1. Motion to Dismiss

At the close of the State's evidence and at the close of all the evidence, defendant moved to dismiss the charges,¹ specifically arguing the State did not present sufficient evidence to support the felony indecent exposure charge. Defendant now challenges the trial court's denial of his motions.

"This Court reviews the trial court's denial of a motion to dismiss de novo ." State v. Smith , 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). " ‘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. Fritsch , 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes , 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) ), cert. denied , 531 U.S. 890, 121 S.Ct. 213, 148 L.Ed. 2d 150 (2000). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith , 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). "In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose , 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied , 515 U.S. 1135, 115 S.Ct. 2565, 132 L.Ed. 2d 818 (1995). "If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed." State v. Powell , 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980).

This Court has explained that, as defined in N.C. Gen. Stat. § 14-190.9(a1), "[t]he 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." State v. Waddell , 239 N.C. App. 202, 203, 767 S.E.2d 921, 922 (2015) (internal quotation marks omitted). Defendant now contends, as he did below, that there was insufficient evidence that the alleged exposure was "in the presence of" the child to support the felony indecent exposure charge. Therefore, defendant contends the trial court erred in denying his motions to dismiss. Defendant does not challenge the sufficiency of the evidence related to the other elements of felony indecent exposure, or the evidence of misdemeanor indecent exposure.

This Court has made clear that it is not necessary that a defendant expose himself "to" a child; all that is required under N.C. Gen. Stat. § 14-190.9(a1) is that a defendant expose himself "in the presence of" a child. Id . at 205, 767 S.E.2d at 924.

In State v. Fly , 348 N.C. 556, 501 S.E.2d 656 (1998), our Supreme Court discussed the meaning of "in the presence of" for purposes of indecent exposure. In that case, a woman rounded a turn on the stairs up to her condominium and looked up to see the defendant bent over at the waist, with his short pants pulled down to his ankles, and wearing nothing else besides a backwards baseball cap. Id . at 557, 501 S.E.2d at 657. The Court first addressed whether the defendant exposed his private parts even though the woman only described seeing the defendant's " ‘buttocks, the crack of his buttocks.’ " Id . at 557, 559, 501 S.E.2d at 657, 658. Holding the jury could find the defendant did expose his private parts, the Court explained that " ‘ "[i]t is not essential to the crime of indecent exposure that someone shall have seen the exposure provided it was intentionally made in a public place and persons were present who could have seen if they had looked ." ’ " Id . at 561, 501 S.E.2d at 659 (quoting State v. King , 268 N.C. 711, 712, 151 S.E.2d 566, 567 (1966) (quoting 33 Am. Jur. Lewdness, Indecency and Obscenity § 7, at 19 (1941) ) ) (emphasis added). The Court further explained that

[l]ikewise, the current statute does not require that private parts be exposed to a member of the opposite sex before the crime is committed, but rather that they be exposed "in the presence of" a member of the opposite sex. The statute does not go to what the victim saw but to what defendant exposed in her presence without her consent.

Id . (internal citation omitted) (emphasis in original). Thus, in Fly , "the fact that [the woman] did not crane her neck or otherwise change her position in an attempt to see more of defendant's anatomy than he had already thrust before her face [did] not defeat the charge of indecent exposure." Id .

In State v. Fusco , 136 N.C. App. 268, 523 S.E.2d 741 (1999), the defendant was convicted of indecent exposure based on evidence showing that a woman and her mother looked out a window and saw the defendant lying on a creek embankment adjacent to their backyard masturbating with his robe open. The defendant appealed, arguing the charge for indecent exposure in the presence of the mother should have been dismissed because the mother never testified and testimony elicited on her behalf was hearsay. Id . at 269, 523 S.E.2d at 742. This Court held "the mere fact that [the mother] did not testify does not justify dismissal of the charge for indecent exposure in her presence[,]" id . at 270, 523 S.E.2d at 742, noting that "[the mother's] testimony was not even needed to substantiate [the] charge[,]" because

[i]ndecent exposure involves exposing one's self "in the presence of" a person of the opposite sex. The victim need not actually see what is being exposed. Accordingly, the State was not required to produce evidence as to what [the mother] actually saw; it only needed to show that defendant was exposing himself and that [the mother] was present during this

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