{ "id": 11219977, "name": "STATE OF NORTH CAROLINA v. JAMES SCOTT NESBITT", "name_abbreviation": "State v. Nesbitt", "decision_date": "1999-06-01", "docket_number": "No. COA98-815", "first_page": "420", "last_page": "426", "citations": [ { "type": "official", "cite": "133 N.C. App. 420" } ], "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": "273 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "664-65" } ], "opinion_index": 0 }, { "cite": "302 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564177 ], "year": 1981, "pin_cites": [ { "page": "161-62" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0157-01" ] }, { "cite": "276 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "364" } ], "opinion_index": 0 }, { "cite": "302 N.C. 613", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568127 ], "year": 1981, "pin_cites": [ { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0613-01" ] }, { "cite": "307 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "151" } ], "opinion_index": 0 }, { "cite": "309 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766892 ], "year": 1983, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0382-01" ] }, { "cite": "408 U.S. 104", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782877 ], "weight": 4, "year": 1972, "pin_cites": [ { "page": "110" }, { "page": "228-29" }, { "page": "110" }, { "page": "228-29" } ], "opinion_index": 0, "case_paths": [ "/us/408/0104-01" ] }, { "cite": "461 U.S. 352", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11298570 ], "weight": 7, "year": 1983, "pin_cites": [ { "page": "357" }, { "page": "909" }, { "page": "358" }, { "page": "909" } ], "opinion_index": 0, "case_paths": [ "/us/461/0352-01" ] }, { "cite": "72 L. Ed. 2d 476", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "456 U.S. 950", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6322649, 6322458, 6322179, 6321893 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/456/0950-04", "/us/456/0950-03", "/us/456/0950-02", "/us/456/0950-01" ] }, { "cite": "455 U.S. 489", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11306266 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "494" }, { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/us/455/0489-01" ] }, { "cite": "417 U.S. 733", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1519615 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "756" }, { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/us/417/0733-01" ] }, { "cite": "423 U.S. 87", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174911 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "92" }, { "page": "233-34" } ], "opinion_index": 0, "case_paths": [ "/us/423/0087-01" ] }, { "cite": "393 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "814", "parenthetical": "motion to dismiss should be denied if there is substantial evidence of each essential element of the offense charged" } ], "opinion_index": 0 }, { "cite": "327 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498848 ], "year": 1990, "pin_cites": [ { "page": "215", "parenthetical": "motion to dismiss should be denied if there is substantial evidence of each essential element of the offense charged" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0210-01" ] }, { "cite": "470 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "72", "parenthetical": "if there is relevant evidence which a reasonable mind would find sufficient to support a conclusion, there exists substantial evidence" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 369", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917298 ], "year": 1996, "pin_cites": [ { "page": "372", "parenthetical": "if there is relevant evidence which a reasonable mind would find sufficient to support a conclusion, there exists substantial evidence" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0369-01" ] }, { "cite": "335 S.E.2d 74", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "75", "parenthetical": "conviction sustained where defendant was \"62 feet away\" from the children at the time of the indecent liberty" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 454", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523457 ], "year": 1985, "pin_cites": [ { "page": "456", "parenthetical": "conviction sustained where defendant was \"62 feet away\" from the children at the time of the indecent liberty" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0454-01" ] }, { "cite": "427 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545258, 2548556, 2544118, 2549759 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0465-02", "/nc/333/0465-04", "/nc/333/0465-01", "/nc/333/0465-03" ] }, { "cite": "424 S.E.2d 687", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "690" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 648", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525252 ], "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0648-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "180" }, { "page": "180", "parenthetical": "defendant's purpose for committing the indecent liberty is the gravamen of the offense" } ], "opinion_index": 0 }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "567" }, { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "278 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "575" }, { "page": "575" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170318 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "377" }, { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0376-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-202.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 698, "char_count": 14162, "ocr_confidence": 0.769, "pagerank": { "raw": 7.923601883877135e-08, "percentile": 0.46164679871297515 }, "sha256": "7d1f42c7ae98cfbab50e79e29436d921d7e3d71697af1cb9b49827136eb7e6f4", "simhash": "1:9221bf162a64dc6a", "word_count": 2358 }, "last_updated": "2023-07-14T19:41:36.377256+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and McGEE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES SCOTT NESBITT" ], "opinions": [ { "text": "GREENE, Judge.\nJames Scott Nesbitt (Defendant) appeals from his jury convictions of six counts of taking indecent liberties with a minor child in violation of N.C. Gen. Stat. \u00a7 14-202.1(a)(1).\nPrior to trial, Defendant moved to dismiss the indictments on the ground that section \u201c14-202.1 is unconstitutional as applied\u201d to him. In support of this motion Defendant argued that \u201cthere is absolutely no way he could have known that his conduct was in violation of 14-202.1 as it is written.\u201d This motion was denied by the trial court.\nThe State\u2019s evidence at trial tended to show that Defendant lived in the Walkertown area of Winston-Salem, North Carolina. The side of Defendant\u2019s house has a sliding glass door facing the roadway, which is approximately thirty-five feet away from the door. The yard on the side of Defendant\u2019s house is fenced in and contains a porch. On 24 March 1997, several young children, while walking home from a school bus stop near Defendant\u2019s home, stopped to play with dogs that were in Defendant\u2019s yard. All of the children saw Defendant standing in his house naked behind the glass door, waving at them and fondling his penis. The children informed their parents of Defendant\u2019s actions, and several parents contacted Deputy Sheriff Danny Carter (Deputy Carter) of the Forsyth County Sheriff\u2019s Department. Deputy Carter visited the home of one of the children on that same afternoon and spoke with that child and two other families.\nThe next day, 25 March 1997, Deputy Carter set up a surveillance point outside of Defendant\u2019s home. Deputy Carter positioned himself so that he could observe the sliding glass door of Defendant\u2019s home, so neither Defendant nor the children exiting the school bus could see him. Because the observation point was approximately 1,100 feet from the glass door, Deputy Carter used 10-power binoculars to view inside of Defendant\u2019s home. Before the school bus arrived, Deputy Carter observed Defendant at the sliding door fully clothed. When the school bus arrived, Defendant let the dogs out into the yard and disappeared for a short time period. The children exited the bus and began walking toward Defendant\u2019s home. Two of the children stopped to play with the dogs in Defendant\u2019s yard. Deputy Carter then observed Defendant reappear in front of the glass door completely naked with \u201chis penis in his right hand and was jerking on it.\u201d Defendant also \u201cmoved his pelvic area back and forth a couple of times.\u201d Deputy Carter observed the boys looking at Defendant, at which time Defendant \u201cturned toward them at an angle and arched his back and started doing it some more.\u201d\nAt the close of the State\u2019s evidence, Defendant moved to dismiss the case due to insufficient evidence, but his motion was denied. Defendant then presented the testimony of Rob Guerette, a private investigator, who testified regarding information obtained from several of the children in private interviews that was inconsistent with their testimony at trial. Defendant renewed his motion to dismiss at the close of all the evidence, and his motion again was denied.\nWhile instructing the jury on the law regarding taking indecent liberties with a minor child, the trial court stated, \u201cMasturbation in the presence of another would be an immoral or indecent act.\u201d The jury subsequently found Defendant guilty of six counts of taking indecent liberties with a minor child and he was sentenced to a minimum of 100 and maximum of 120 months for all six convictions.\nThe dispositive issues are whether: (I) there is substantial evidence that Defendant was \u201cwith\u201d the children who were in the yard \u2022some thirty-five feet away, when Defendant masturbated behind the clear glass door of his home; (II) section 14-202.1(a)(l) is unconstitutionally vague; and (III) it was error to instruct the jury that \u201cMasturbation in the presence of another would be an immoral or indecent act.\u201d\nI\nMotion to Dismiss \u2014 Insufficiency of Evidence\nDefendant was charged with and found guilty of violating subpart (a)(1) of section 14-202.1. Section 14-202.1 provides in part:\n(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:\n(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or\n(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.\nN.C.G.S. \u00a7 14-202.1 (1993) (emphasis added).\nDefendant contends there is not substantial evidence in this record that he was \u201cwith\u201d the children, within the meaning of section 14-202.1(a)(1), and the trial court therefore erred in denying his motion to dismiss the charges. We disagree.\nAlthough \u201cwith\u201d as used in section 14-202.1(a)(l) has not been defined by our legislature, our courts have set its parameters. It is well settled that a physical touching of a child by the defendant is not required in order to show an indecent liberty \u201cwith\u201d the child in violation of section 14-202.1(a)(1). State v. Turman, 52 N.C. App. 376, 377, 278 S.E.2d 574, 575 (1981); cf. N.C.G.S. \u00a7 14-202.1(a)(2) (lewd or lascivious acts must be \u201cupon or with the body or any part or member of the body of any child\u201d). It is necessary, however, that the defendant, at the time of the immoral, improper, or indecent liberty, be either in the actual or constructive \u201cpresence\u201d of the child. State v. Hartness, 326 N.C. 561, 567, 391 S.E.2d 177, 180 (1990); State v. McClees, 108 N.C. App. 648, 654, 424 S.E.2d 687, 690 (conviction sustained where defendant videotaped child undressing in another room while child was unaware of the videotaping), disc. review denied, 333 N.C. 465, 427 S.E.2d 626 (1993). There is no requirement that the defendant \u201cbe within a certain distance of or in close proximity to the child.\u201d State v. Strickland, 77 N.C. App. 454, 456, 335 S.E.2d 74, 75 (1985) (conviction sustained where defendant was \u201c62 feet away\u201d from the children at the time of the indecent liberty).\nIn this case, when viewing the evidence in the light most favorable to the State and giving the State the benefit of all reasonable inferences, the evidence reveals: (1) Defendant let his dogs out in his yard to encourage children to stop and play with the dogs; (2) while the children were playing with his dogs, Defendant, while inside his house and in clear view of the children in his yard some thirty-five feet away, exposed his penis and masturbated; and (3) Defendant acknowledged the children\u2019s presence by waving to them in one instance and changing his position in another instance. These facts are sufficient to support the conclusion that Defendant was \u201cwith\u201d the children at the time he exposed his penis and masturbated. See State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 72 (1996) (if there is relevant evidence which a reasonable mind would find sufficient to support a conclusion, there exists substantial evidence). The fact that the children were outside Defendant\u2019s home, while he was inside the home, is not material. The fact that the children were some thirty-five feet away from Defendant also is not material. It is material, however, that Defendant involved the children in his scheme to engage in an indecent liberty for the purposes of arousing his own sexual desire. See Hartness, 326 N.C. at 567, 391 S.E.2d at 180 (defendant\u2019s purpose for committing the indecent liberty is the gravamen of the offense). Because there is substantial evidence that Defendant was \u201cwith\u201d the children, the trial court correctly denied Defendant\u2019s motion to dismiss on this ground. See State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990) (motion to dismiss should be denied if there is substantial evidence of each essential element of the offense charged).\nII\nMotion to Dismiss \u2014 Vagueness\nAs a general proposition, the vagueness of a criminal statute must be judged in the light of the conduct that is charged to be violative of the statute. See United States v. Powell, 423 U.S. 87, 92, 46 L. Ed. 2d 228, 233-34 (1975). In other words, the question is whether the statute is unconstitutionally vague as applied to the defendant\u2019s actions in the case presented. Id. Thus a party receiving fair warning, from the statute, of the criminality of his own conduct is not entitled to attack the statute on the ground that its language would not give fair warning with respect to other conduct. Parker v. Levy, 417 U.S. 733, 756, 41 L. Ed. 2d 439, 458 (1974). If, however, the statute reaches \u201ca substantial amount of constitutionally protected conduct,\u201d the statute is vulnerable to a facial attack. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 71 L. Ed. 2d 362, 369, reh\u2019g denied, 456 U.S. 950 72 L. Ed. 2d 476 (1982). In this event, the defendant can challenge the constitutional vagueness of the statute, even though his conduct clearly is prohibited by the statute. Kolender v. Lawson, 461 U.S. 352, 358 n.8, 75 L. Ed. 2d 903, 910 n.8 (1983).\nA penal statute survives a void for vagueness challenge if it defines \u201cthe criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.\u201d Id. at 357, 75 L. Ed. 2d at 909. The more important aspect of the vagueness doctrine is \u201cthe requirement that a legislature establish minimal guidelines to govern law enforcement.\u201d Id. at 358, 75 L. Ed. 2d at 909. This is necessary in order to prevent policemen, prosecutors, and juries from pursuing their own predilections. Id. In determining whether the statute is sufficient to appraise citizens, policemen, prosecutors, judges and juries of the proscribed conduct, it is appropriate to consider any limiting construction placed on the statute by courts or agencies. See Grayned v. City of Rockford, 408 U.S. 104, 110, 33 L. Ed. 2d 222, 228-29 (1972). It is also proper to consider whether it would be practical for the legislature to draft the statute more precisely. Laurence H. Tribe, American Constitutional Law \u00a7 12-31 (2d ed. 1988). Finally, there is no requirement that legislation include only words that are subject to mathematical certainty. Grayned, 408 U.S. at 110, 33 L. Ed. 2d at 228-29.\nDefendant contends the term \u201cwith\u201d contained in section 14-202.1(a)(l) \u201cis unconstitutionally vague as applied to him in this case because he could not possibly have known and was not given fair notice that his conduct inside his private home behind a glass sliding door placed him \u2018with\u2019 children outside his home, some 35 feet away.\u201d We disagree. Admittedly the word \u201cwith\u201d is not meticulously specific, but as construed by our courts it is clear what conduct the statute seeks to prohibit and thus gives sufficient guidance to our citizens, our police, our prosecutors, our judges, and our juries. Section 14-202.1(a)(1), therefore, is not impermissibly vague, and the trial court correctly denied Defendant\u2019s pre-trial motion to dismiss the .indictments on this ground.\nIll\nJury Instructions\nDefendant\u2019s final contention is the trial court erred by instructing the jury that, \u201cMasturbation in the presence of another would be an immoral or indecent act.\u201d We disagree. This Court has passed upon this identical argument and found \u201cno prejudicial error in the challenged instruction.\u201d Turman, 52 N.C. App. at 377, 278 S.E.2d at 575. Furthermore, when a charge, as a whole, presents the law accurately, fairly, and clearly to the jury, reversible error does not occur. State v. Corbett, 309 N.C. 382, 402, 307 S.E.2d 139, 151 (1983); State v. Simpson, 302 N.C. 613, 618, 276 S.E.2d 361, 364 (1981). We have examined the entire jury charge given by the trial court and there is no prejudicial error in the instruction.\nNo error.\nJudges MARTIN and McGEE concur.\n. The record contains eight different written statements from children who observed Defendant.\n. We acknowledge that our North Carolina courts previously have held that section 14-202.1(a)(l) is not unconstitutionally vague. E.g. State v. Elam, 302 N.C. 157, 161-62, 273 S.E.2d 661, 664-65 (1981). These cases, however, do not address the specific language challenged in this case.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Robert J. Blum, for the State.", "Tamura D. Coffey, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES SCOTT NESBITT\nNo. COA98-815\n(Filed 1 June 1999)\n1. Indecent Liberties\u2014 presence of children \u2014 sufficiency of evidence\nThe trial court correctly denied defendant\u2019s motion to dismiss a charge of indecent liberties under N.C.G.S. \u00a7 14-202.1(a)(1) where defendant let his dogs into his yard to encourage children to stop and play; defendant, while inside his house 35 feet away and in clear view of the children, exposed himself and masturbated while the children were playing with the dogs; and defendant acknowledged the children\u2019s presence by waving to them in one instance and changing his position in another instance. The fact that the children were outside defendant\u2019s home while he was inside is not material, and neither is the fact that the children were 35 feet away. It is material that defendant involved the children in his scheme to engage in an indecent liberty for the purpose of arousing his own sexual desire.\n2. Indecent Liberties\u2014 presence of children \u2014 not unconstitutionally vague\nN.C.G.S. \u00a7 14-202.1(a)(l), the indecent liberties statute, is not unconstitutionally vague as applied where defendant was 35 feet away inside his home behind a glass door.\n3. Indecent Liberties\u2014 instructions \u2014 masturbation\nThe trial court did not err in an indecent liberties prosecution by instructing the jury that \u201cmasturbation in the presence of another would be an immoral or indecent act.\u201d\nAppeal by defendant from judgments dated 29 January 1998 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 30 March 1999.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Robert J. Blum, for the State.\nTamura D. Coffey, for defendant-appellant." }, "file_name": "0420-01", "first_page_order": 450, "last_page_order": 456 }