{ "id": 11794854, "name": "STATE OF NORTH CAROLINA v. MARK EDWARD FLY", "name_abbreviation": "State v. Fly", "decision_date": "1997-08-19", "docket_number": "No. COA96-1109", "first_page": "286", "last_page": "291", "citations": [ { "type": "official", "cite": "127 N.C. App. 286" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "83 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "104", "parenthetical": "common law breach of the peace" } ], "opinion_index": 0 }, { "cite": "240 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603420 ], "year": 1954, "pin_cites": [ { "page": "482", "parenthetical": "common law breach of the peace" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0476-01" ] }, { "cite": "166 S.E. 738", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "pin_cites": [ { "page": "741-42", "parenthetical": "common law public nuisance" } ], "opinion_index": 0 }, { "cite": "203 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616638 ], "year": 1932, "pin_cites": [ { "page": "617", "parenthetical": "common law public nuisance" } ], "opinion_index": 0, "case_paths": [ "/nc/203/0610-01" ] }, { "cite": "173 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "48" } ], "opinion_index": 0 }, { "cite": "7 N.C. App. 532", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551467 ], "year": 1970, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nc-app/7/0532-01" ] }, { "cite": "439 S.E.2d 136", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526672 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0526-01" ] }, { "cite": "426 S.E.2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "108", "parenthetical": "\"where [legislature] chooses not to amend a statutory provision that has been interpreted in a specific ... way by our courts, we may assume that it is satisfied with that interpretation\"" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 16", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524065 ], "year": 1993, "pin_cites": [ { "page": "22", "parenthetical": "\"where [legislature] chooses not to amend a statutory provision that has been interpreted in a specific ... way by our courts, we may assume that it is satisfied with that interpretation\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0016-01" ] }, { "cite": "314 S.E.2d 739", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "742", "parenthetical": "only statutes applicable to the same matter are \"construed together in order to ascertain legislative intent\"" } ], "opinion_index": 0 }, { "cite": "310 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2392835 ], "year": 1984, "pin_cites": [ { "page": "674", "parenthetical": "only statutes applicable to the same matter are \"construed together in order to ascertain legislative intent\"" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0669-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-190.13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "297 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "562", "parenthetical": "action must be dismissed if State does not present substantial evidence of each element of crime" } ], "opinion_index": 0 }, { "cite": "307 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561203 ], "year": 1982, "pin_cites": [ { "page": "182", "parenthetical": "action must be dismissed if State does not present substantial evidence of each element of crime" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0169-01" ] }, { "cite": "158 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "332" } ], "opinion_index": 0 }, { "cite": "272 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573271 ], "year": 1968, "pin_cites": [ { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0439-01" ] }, { "cite": "12 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "pin_cites": [ { "page": "272" } ], "opinion_index": 0 }, { "cite": "218 N.C. 718", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624205 ], "year": 1940, "pin_cites": [ { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/nc/218/0718-01" ] }, { "cite": "171 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "469", "parenthetical": "holding that the exposure of a woman's breasts did not violate section 14-190.9 because they were not her private parts" } ], "opinion_index": 0 }, { "cite": "7 N.C. App. 166", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548694 ], "year": 1970, "pin_cites": [ { "page": "169", "parenthetical": "holding that the exposure of a woman's breasts did not violate section 14-190.9 because they were not her private parts" } ], "opinion_index": 0, "case_paths": [ "/nc-app/7/0166-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-190.9", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-202.10", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "441 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "707" } ], "opinion_index": 1 }, { "cite": "18 Va. App. 77", "category": "reporters:state", "reporter": "Va. App.", "case_ids": [ 2317511 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/va-app/18/0077-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-190.13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "171 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "opinion_index": 1 }, { "cite": "7 N.C. App. 166", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548694 ], "year": 1970, "opinion_index": 1, "case_paths": [ "/nc-app/7/0166-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-190.9", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 1 } ], "analysis": { "cardinality": 598, "char_count": 10600, "ocr_confidence": 0.731, "pagerank": { "raw": 2.3728075846420702e-07, "percentile": 0.7956828757197814 }, "sha256": "c94ce76a4c435d4407967e6818cc7b33dd1c25895159c19f7f4bb8ba4850f4df", "simhash": "1:3fedf172f3fe09c3", "word_count": 1716 }, "last_updated": "2023-07-14T19:43:16.540119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JOHN concurs.", "Judge WALKER dissents with separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. MARK EDWARD FLY" ], "opinions": [ { "text": "GREENE, Judge.\nMark Edward Fly (defendant) appeals a jury verdict finding him guilty of indecent exposure.\nOn 26 July 1995 Mrs. Barbara Glover (Glover) was walking up the stairs to her condominium when defendant appeared on the landing three steps above her. He was wearing only a baseball hat and shorts, which were pulled down to his ankles. Defendant bent over, with his back to Glover, allowing Glover to view the \u201ccrack of his buttocks\u201d and his \u201cfanny.\u201d Defendant then ran away and escaped on his bicycle. The following morning Glover looked out the window of her condominium and saw defendant sitting on his bicycle looking toward her condominium. He was wearing the same baseball hat and shorts. Glover called 911 and defendant was arrested and charged with indecent exposure for unlawfully and willfully exposing \u201cthe private parts of his person in a public place.\u201d\nAt trial defendant moved to dismiss the charge on the grounds that the evidence was insufficient to show each element of the crime charged. The motion was denied and a jury found defendant guilty of indecent exposure.\nThe dispositive issue is whether \u201cprivate parts\u201d as that phrase is used in N.C. Gen. Stat. \u00a7 14-190.9 includes a person\u2019s buttocks.\nSection 14-190.9 makes it a Class 2 misdemeanor for any person to:\n(a) [W]illfully expose the private parts of his or her person in any public place and in the presence of any other person or persons, of the opposite sex. . . .\nN.C.G.S. \u00a7 14-190.9 (1993) (emphasis added).\nAlthough the statute does not define \u201cprivate parts,\u201d this Court has previously held that \u201cprivate parts,\u201d as that phrase is used in section 14-190.9, refers to the \u201cgenital organs.\u201d State v. Jones, 7 N.C. App. 166, 169, 171 S.E.2d 468, 469 (1970) (holding that the exposure of a woman\u2019s breasts did not violate section 14-190.9 because they were not her private parts). Because a person\u2019s buttocks are not \u201cgenital organs,\u201d see American Heritage College Dictionary 568 (3d ed. 1993) (defining genital organs as those related to \u201cbiological reproduction\u201d), it follows that the buttocks are not \u201cprivate parts\u201d within the meaning of section 14-190.9. See John H. Snyder, North Carolina Elements of Criminal Offenses 207 (5th ed. 1994) (exposure of buttocks not a violation of indecent exposure statute).\nWe recognize that the conduct engaged in by the defendant in this case is indecent as that term is generally defined. See American Heritage Dictionary 653 (2d college ed. 1982) (indecent defined as \u201c[o]ffensive to good taste\u201d). It is not within the province of this Court, however, to vary from the natural and ordinary meaning of words used by our legislature to define the criminal offense. Harrison v. Guilford County, 218 N.C. 718, 722, 12 S.E.2d 269, 272 (1940). It is the legislature that is to define crimes and ordain punishment and the courts are not permitted to extend the application of the statute \u201cby implication or equitable construction\u201d to include acts not clearly within the prohibition. State v. Hill, 272 N.C. 439, 443, 158 S.E.2d 329, 332 (1968).\nIn this case there is no evidence that the defendant exposed his genital organs and the trial court therefore erred in denying the defendant\u2019s motion to dismiss. See State v. Corbett, 307 N.C. 169, 182, 297 S.E.2d 553, 562 (1982) (action must be dismissed if State does not present substantial evidence of each element of crime).\nReversed.\nJudge JOHN concurs.\nJudge WALKER dissents with separate opinion.\n. We note that the dissent relies on N.C. Gen. Stat. \u00a7\u00a7 14-190.13 and -202.10 to \u201cestablish that our legislature intended to include buttocks as a \u2018private part.\u2019 \u201d Those statutes, however, are unrelated to the matter addressed in section 14-190.9 and thus are not appropriately used to establish the meaning of \u201cprivate parts,\u201d a phrase unique to section 14-190.9. See Carver v. Carver, 310 N.C. 669, 674, 314 S.E.2d 739, 742 (1984) (only statutes applicable to the same matter are \u201cconstrued together in order to ascertain legislative intent\u201d). The enactment of sections 14-190.13 and -202.10, occurring subsequent to the enactment of section 14-190.9, does reveal, however, a deliberate choice by the legislature to avoid using the phrase \u201cprivate parts\u201d in the more recent statutes while retaining it in the earlier statute. Its retention in section 14-190.9 is particularly significant in the face of this Court\u2019s decision in Jones because it reflects a satisfaction with that Court\u2019s definition of \u201cprivate parts\u201d as a person\u2019s \u201cgenital organs.\u201d See Anderson v. Baccus, 109 N.C. App. 16, 22, 426 S.E.2d 105, 108 (1993) (\u201cwhere [legislature] chooses not to amend a statutory provision that has been interpreted in a specific ... way by our courts, we may assume that it is satisfied with that interpretation\u201d), aff\u2019d in part and rev\u2019d in part on other grounds, 335 N.C. 526, 439 S.E.2d 136 (1994).\n. Dictionaries may be used to determine the natural and ordinary meaning of words used in statutes. State v. Martin, 7 N.C. App. 532, 533, 173 S.E.2d 47, 48 (1970). Dictionaries define \u201cprivate parts\u201d to be a person\u2019s genitals. See American Heritage Dictionary 986 (2d college ed. 1982); Bernard S. Maloy, M.D., Medical Dictionary for Lawyers 467 (1951); XII Oxford English Dictionary 516 (2d ed. 1989).\n. Although the issue is not presented in this case, defendant\u2019s conduct may well be in violation of the common law crimes of breach of the peace and/or the creation of a public, nuisance. See State v. Everhardt, 203 N.C. 610, 617, 166 S.E. 738, 741-42 (1932) (common law public nuisance); State v. Mobley, 240 N.C. 476, 482, 83 S.E.2d 100, 104 (1954) (common law breach of the peace); John Snyder, North Carolina Elements of Criminal Offenses 207 (5th ed. 1994) (exposure of a person\u2019s buttocks \u201cprobably constitutes a breach of peace or public nuisance\u201d).", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge Walker\ndissenting.\nI would give a broader interpretation to the statute to include buttocks within the definition of \u201cprivate parts.\u201d In State v. Jones, 7 N.C. App. 166, 171 S.E.2d 468 (1970), this Court stated that \u201c[t]he term \u2018private parts\u2019 appears to be generally acceptable legal parlance in referring to male or female genitalia.\u201d Id. at 167, 171 S.E.2d 468-69. However, I find nothing which leads me to conclude that the definition of \u201cprivate parts\u201d means only one\u2019s genitalia.\nA recent case from Virginia is persuasive authority that buttocks should be considered \u201cprivate parts.\u201d Virginia\u2019s indecent exposure statute provides in part: \u201cEvery person who intentionally makes an obscene display or exposure of his person, or the private parts thereof, in any public place . . . shall be guilty of a Class 1 misdemeanor.\u201d Va. Code \u00a7 18.2-387. Like this State, Virginia has not further defined \u201cprivate parts.\u201d Nevertheless, in Hart v. Virginia, 18 Va. App. 77, 441 S.E.2d 706 (1994), the Court of Appeals of Virginia held that the legislature intended to include buttocks in the category of private parts. The Court reasoned that while the term \u201cprivate parts\u201d is not defined within the purview of the indecent exposure statute, \u201cother related phrases make clear the legislature\u2019s intent to include the groin and buttocks within that category.\u201d Id. at 79, 441 S.E.2d at 707. The Court was referring to two sections of the Virginia Code. One section which defines \u201cintimate parts\u201d to include \u201cnot only genitalia, but also the \u2018anus, groin, breast or buttocks.\u2019 \u201d The other section defines \u201cnudity\u201d as a \u201c \u2018state of undress so as to expose the human . . . genitals, pubic area or buttocks. . . Id.\nLike Virginia, our statutes do not specifically state which body parts are included in the term \u201cprivate parts\u201d under N.C. Gen. Stat. \u00a7 14-190.9. However, other criminal statutes within Article 26 (Offenses against Public Morality and Decency) and Article 26A (Adult Establishments) define related phrases which we draw from to establish that our legislature intended to include buttocks as a \u201cprivate part\u201d under N.C. Gen. Stat. \u00a7 14-190.9.\nIn N.C. Gen. Stat. \u00a7 14-190.13, Definitions for certain offenses concerning minors, \u201csexually explicit nudity\u201d is defined in part, as follows:\nThe showing of:\na. Uncovered, or less than opaquely covered, human genitals, pubic area, or buttocks, or the nipple or any portion of the areola of the human female breast. . . .\nSimilarly, N.C. Gen. Stat. \u00a7 14-202.10 defines terms used in Article 26A, Adult Establishments. There, the term \u201cspecified anatomical areas\u201d is defined in pertinent part as:\na. Less than opaquely covered: (i) human genitals, pubic region, (ii) buttock, or (iii) female breast below a point immediately above the top of the areola. . . .\nAlthough the purposes of the aforementioned statutes are distinguishable from that of N.C. Gen. Stat. \u00a7 14-190.9, they all were enacted to prohibit offenses against morality and decency. As such, I would conclude that the term \u201cprivate parts\u201d was intended to encompass the buttocks.\nDefendant\u2019s actions were precisely the type of conduct the statute is designed to prohibit. The buttocks are a part of the human body which morality and decency require to be covered in the presence of others. Thus, our statute should be reasonably interpreted to include buttocks within the meaning of \u201cprivate parts\u201d and to protect citizens from the exposure experienced by the witness on this occasion. On this basis, I respectfully dissent.", "type": "dissent", "author": "Judge Walker" } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Amy R. Gillespie, for the State.", "Public Defender Isabel Scott Day, by Assistant Public Defender Karen E. Eady, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARK EDWARD FLY\nNo. COA96-1109\n(Filed 19 August 1997)\nObscenity, Pornography, Indecency, or Profanity \u00a7 25 (NCI4th)\u2014 indecent exposure \u2014 buttocks not private parts under statute\nThe trial court erred by denying defendant\u2019s motion to dismiss a prosecution for indecent exposure under N.C.G.S. \u00a7 14-190.9 in which defendant was charged with indecent exposure for exposing his buttocks. The statute prohibits wilfully exposing \u201cprivate parts\u201d and the Court of Appeals has held that \u201cprivate parts\u201d as used in N.C.G.S. \u00a7 14-190.9 refers to \u201cgenital organs.\u201d While the conduct engaged in by defendant is indecent as that term is generally defined, it is not within the province of the Court of Appeals to vary from the natural and ordinary meaning of words used by our legislature to define the criminal offense.\nJudge Walker dissenting.\nAppeal by defendant from judgment dated 20 December 1995 by Judge William H. Helms in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 May 1997.\nAttorney General Michael F. Easley, by Assistant Attorney General Amy R. Gillespie, for the State.\nPublic Defender Isabel Scott Day, by Assistant Public Defender Karen E. Eady, for defendant appellant." }, "file_name": "0286-01", "first_page_order": 322, "last_page_order": 327 }