{ "id": 1659824, "name": "STATE OF NORTH CAROLINA v. MARK EDWARD FLY", "name_abbreviation": "State v. Fly", "decision_date": "1998-07-09", "docket_number": "No. 472A97", "first_page": "556", "last_page": "562", "citations": [ { "type": "official", "cite": "348 N.C. 556" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "488 S.E.2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": -1 }, { "cite": "127 N.C. App. 286", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11794854 ], "year": 1997, "opinion_index": -1, "case_paths": [ "/nc-app/127/0286-01" ] }, { "cite": "419 P.2d 800", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1966, "pin_cites": [ { "page": "803" } ], "opinion_index": 0 }, { "cite": "69 Wash. 2d 664", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1057236 ], "year": 1966, "pin_cites": [ { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/wash-2d/69/0664-01" ] }, { "cite": "151 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "567", "parenthetical": "quoting 33 Am. Jur. Lewdness, Indecency and Obscenity \u00a7 7, at 19 (1941)" } ], "opinion_index": 0 }, { "cite": "268 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565192 ], "year": 1966, "pin_cites": [ { "page": "712", "parenthetical": "quoting 33 Am. Jur. Lewdness, Indecency and Obscenity \u00a7 7, at 19 (1941)" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0711-01" ] }, { "cite": "1993 N.C. Sess. Laws 586", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "1971 N.C. Sess. Laws 519", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "171 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1970, "pin_cites": [ { "page": "469" }, { "page": "469" } ], "opinion_index": 0 }, { "cite": "7 N.C. App. 166", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548694 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/nc-app/7/0166-01" ] }, { "cite": "468 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "110" }, { "page": "46" } ], "opinion_index": 0 }, { "cite": "343 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798844 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0107-01" ] }, { "cite": "488 S.E.2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "615", "parenthetical": "citing N.C.G.S. \u00a7 14-190.9 (1993) (effective 1 January 1995)" }, { "page": "616" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 286", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11794854 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "288", "parenthetical": "citing N.C.G.S. \u00a7 14-190.9 (1993) (effective 1 January 1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0286-01" ] } ], "analysis": { "cardinality": 697, "char_count": 15771, "ocr_confidence": 0.735, "pagerank": { "raw": 1.607014594635639e-07, "percentile": 0.6849179237862902 }, "sha256": "eff303902ae1e207152c544866526466fd666f804e7cd8787b5c1b8e2e366da7", "simhash": "1:efe9bd93252fc1ff", "word_count": 2630 }, "last_updated": "2023-07-14T21:11:06.764212+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. MARK EDWARD FLY" ], "opinions": [ { "text": "MITCHELL, Chief Justice.\nThe evidence at trial tended to show that at about 7:30 a.m. on 26 July 1995, Barbara Glover was walking up the steps of her condominium in Charlotte. She rounded a turn on the stairs and looked up to see defendant Mark Edward Fly, a twenty-eight-year-old male, \u201cmooning\u201d her. He was bent over at the waist, with his short pants pulled down to his ankles. He wore no other clothing, except a baseball cap, which was backwards on his head. He was otherwise naked from his head to his feet. Ms. Glover saw what she described as defendant\u2019s \u201cfanny\u201d or \u201chis buttocks, the crack of his buttocks.\u201d When she yelled at defendant, he pulled his pants up and ran. Ms. Glover ran after defendant to get a description of his getaway vehicle \u2014 a bicycle, which she testified was \u201ca real funky neon kind of color.\u201d The next morning, she saw him outside on the bicycle looking up at her condominium. She called the police, who later detained defendant for identification by Ms. Glover. After she identified him, he was arrested by the police, without a warrant, for indecent exposure, in violation of N.C.G.S. \u00a7 14-190.9. A magistrate\u2019s order was issued pursuant to N.C.G.S. \u00a7 15A-511, finding probable cause to detain defendant without a warrant for his arrest on a charge of indecent exposure. Defendant was found guilty of that charge by the District Court, Mecklenburg County, and was sentenced to sixty days\u2019 imprisonment. He appealed to the Superior Court.\nDefendant was tried de novo on 20 December 1995 in Superior Court, Mecklenburg County. At trial, defendant moved for dismissal of the charge against him on the ground that the evidence was insufficient to show that he had exposed his private parts. In particular, defendant argued that buttocks are not private parts within the meaning of the statute. The motion was denied, and the jury subsequently found defendant guilty. The trial court entered judgment sentencing defendant to sixty days\u2019 imprisonment.\nDefendant appealed to the Court of Appeals. By a divided panel, the Court of Appeals reversed the trial court. The majority in the Court of Appeals concluded that under N.C.G.S. \u00a7 14-190.9, the term \u201cprivate parts\u201d includes only genital organs and, therefore, that the exposure of buttocks is not prohibited by the statute. State v. Fly, 127 N.C. App. 286, 288, 488 S.E.2d 614, 615 (1997) (citing N.C.G.S. \u00a7 14-190.9 (1993) (effective 1 January 1995)). Judge Walker stated in his dissent that he would give a broader interpretation to the statute to include buttocks within the definition of the phrase \u201cprivate parts.\u201d Id. at 289, 488 S.E.2d at 616.\nOn 27 September 1997, the State gave notice of appeal as a matter of right to this Court based on Judge Walker\u2019s dissent in the Court of Appeals. Additionally, on 15 January 1998, the State filed a petition for writ of certiorari seeking to have this Court consider an additional argument, that defendant\u2019s private parts were exposed because the evidence tended to show that at the time defendant\u2019s buttocks were exposed, his genitals were also exposed. This reasoning was not advanced by the dissent in the Court of Appeals.\nInitially, we address whether the State can present an argument before this Court that was not the basis of the dissent below. In State v. Kaley, 343 N.C. 107, 468 S.E.2d 44 (1996), we said the \u201cState can argue in this Court any evidence that supports [the dissent\u2019s] premise. It is not limited to arguing the reasons in the dissent as to why there was evidence to support the charge.\u201d Id. at 110, 468 S.E.2d at 46. Thus, because the dissent in this case was based on the premise that there was sufficient evidence to support the charge of indecent exposure, the State should not be limited to arguing solely that buttocks are private parts. Accordingly, the State is free here to argue any reasoning it wishes in support of the proposition that the evidence was sufficient to support defendant\u2019s conviction, as that is the issue on appeal before this Court. Since no writ of certiorari is necessary to permit the State to make such arguments, its petition for writ of certiorari is hereby denied.\nThe question presented by the State\u2019s appeal is whether the Court of Appeals erred in reversing the trial court\u2019s order denying defendant\u2019s motion to dismiss the charge of indecent exposure for insufficiency of the evidence. The elements of the offense are (1) the willful exposure, (2) of private parts of one\u2019s person, (3) in a public place, (4) in the presence of one or more persons of the opposite sex. N.C.G.S. \u00a7 14-190.9. The majority in the Court of Appeals reversed the trial court on the basis that the evidence was insufficient to support defendant\u2019s conviction because buttocks are not private parts within the meaning of the statute.\nThe State\u2019s witness, Ms. Glover, testified that defendant was bent over and was naked from head to foot, although he was wearing a baseball cap and shorts that were around his ankles. During direct examination, the following colloquy took place:\nThe Court: Now, exactly what parts of his anatomy did you see or experience?\n[Ms. Glover:] His buttocks, the crack of his buttocks. He\u2019s real pasty white. He doesn\u2019t have a tan line at all.\nMs. Glover testified that defendant was about four feet in front of her and that \u201cif I would have reached out, I probably could have touched him.\u201d\nThe State argues that the evidence was sufficient to survive defendant\u2019s motion to dismiss because it is undisputed that defendant was naked from head to foot and that by definition defendant\u2019s private parts were exposed, regardless of whether Ms. Glover actually saw them. We agree.\nIt appears that in the present case, the Court of Appeals based its holding upon a misreading of State v. Jones, 7 N.C. App. 166, 171 S.E.2d 468 (1970). In Jones, the Court of Appeals discussed the meaning of the phrase \u201cprivate parts\u201d as used in another statute, N.C.G.S. \u00a7 14-190 (1969) (repealed 1971). It concluded that the phrase as used in that statute, since repealed, included only the genital organs. Jones, 7 N.C. App. at 169, 171 S.E.2d at 469. As a result, the court held in Jones that \u201cthe exposure by a female of her breasts to the public view in a public place is not an offense under [former] G.S. 14-190.\u201d Id. at 169-70, 171 S.E.2d at 469. The definition applied by the court in Jones is too narrow to be historically correct and complete. For example, The American Heritage Dictionary defines \u201cprivate parts\u201d as \u201c[t]he external organs of sex and excretion.\u201d The American Heritage Dictionary of the English Language 1442 (3d ed. 1992). We agree and conclude that in common law and as used in former N.C.G.S. \u00a7 14-190, the phrase \u201cprivate parts\u201d included both the external organs of sex and of excretion.\nIn the present case, the Court of Appeals erroneously concluded that the legislature\u2019s use of the term \u201cprivate parts\u201d when it enacted \u201csection 14-190.9 is particularly significant in the face of . . . [the Court of Appeals\u2019 prior] decision in Jones because it reflects a satisfaction with that Court\u2019s definition of \u2018private parts\u2019 as a person\u2019s \u2018genital organs.\u2019 \u201d Fly, 127 N.C. App. at 288 n.1, 488 S.E.2d at 615 n.1. The majority in the Court of Appeals, however, failed to note that the legislature quickly reacted to the decision in Jones in the very act which repealed former N.C.G.S. \u00a7 14-190 and which first enacted N.C.G.S. \u00a7 14-190.9. There, the legislature expressly and unequivocally stated its intent that \u201c[e]very word, clause, sentence, paragraph, section, or other part of this act shall be interpreted in such manner as to be as expansive as the Constitution of the United States and the Constitution of North Carolina permit.\u201d Act of June 17, 1971, ch. 591, sec. 2, 1971 N.C. Sess. Laws 519 (adding new section 14-190.9 prohibiting indecent exposure and repealing N.C.G.S. \u00a7 14-190). However, the legislature later amended N.C.G.S. \u00a7 14-190.9 by adding subsection (b) providing that: \u201cNotwithstanding any other provision of law, a woman may breast feed in any public or private location where she is otherwise authorized to be, irrespective of whether the nipple of the mother\u2019s breast is uncovered during or incidental to the breast feeding.\u201d Act of 7 July 1993, ch. 301, sec. 1, 1993 N.C. Sess. Laws 586, 587. In footnote 1 of its opinion in the present case, the majority of the Court of Appeals simply misread the legislative history and the specifically expressed intent of the legislature which repealed the former statute and adopted N.C.G.S. \u00a7 14-190.9.\nWe have already concluded that the phrase \u201cprivate parts\u201d includes the external organs of sex and excretion. On the facts of this case, it is unnecessary for us to determine what, if any, other parts of the female or male anatomy may be included within the phrase \u201cprivate parts,\u201d as used in N.C.G.S. \u00a7 14-190.9, in light of the legislature\u2019s expressed preference for an \u201cexpansive\u201d interpretation. However, given the posture of this case, we think it wise to note our agreement with the conclusion of the majority below that buttocks are not private parts within the meaning of the statute. To hold that buttocks are private parts would make criminals of all North Carolinians who appear in public wearing \u201cthong\u201d or \u201cg-string\u201d bikinis or other such skimpy attire during our torrid summer months. Our beaches, lakes, and resort areas are often teeming with such scantily clad vacationers. We simply do not believe that our legislature sought to discourage a practice so commonly engaged in by so many of our people when it enacted N.C.G.S. \u00a7 14-190.9. To make such attire criminal by an overly expansive reading of the term \u201cprivate parts\u201d was not, we are convinced, the intent of our legislature. The difference, however, between defendant\u2019s conduct and someone wearing a bikini is that the former is a clear-cut violation of recognized boundaries of decency, which the statute was intended to address, whereas the latter is a matter of taste, which we do not believe our legislators intended to make criminal.\nIn the present case, the jury could reasonably find from the evidence that defendant had exposed private parts, either his anus, his genitals, or both. We held under former N.C.G.S. \u00a7 14-190 that \u201c \u2018[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.\u2019 \u201d State v. King, 268 N.C. 711, 712, 151 S.E.2d 566, 567 (1966) (quoting 33 Am. Jur. Lewdness, Indecency and Obscenity \u00a7 7, at 19 (1941)). Likewise, 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 \u201cin the presence of\u2019 a member of the opposite sex. N.C.G.S. \u00a7 14-190.9 (emphasis added). The statute does not go to what the victim saw but to what defendant exposed in her presence without her consent. Thus, the fact that Ms. Glover did not crane her neck or otherwise change her position in an attempt to see more of defendant\u2019s anatomy than he had already thrust before her face does not defeat the charge of indecent exposure. Defendant\u2019s exposure was indecent within the meaning of the statute and is among the acts the legislature intended to proscribe.\nFurthermore, the willfulness of defendant\u2019s act distinguishes the exposure of his private parts from situations in which such exposure is unintended and incidental to a necessary activity. Here, defendant willfully exposed his private parts in the presence of a member of the opposite sex, apparently for the shock value of the act and its hoped-for effect on Ms. Glover. He succeeded in that endeavor. Even in a society where all boundaries of common decency seem frequently under assault, it is simply unacceptable for a person to harass others by willfully exposing in their presence \u201cthose private parts of the person which instinctive modesty, human decency, or common propriety require shall be customarily kept covered in the presence of others.\u201d State v. Galbreath, 69 Wash. 2d 664, 668, 419 P.2d 800, 803 (1966).\nFor the foregoing reasons, we conclude that the evidence was sufficient to support defendant\u2019s conviction for indecent exposure and that the Court of Appeals erred in reversing the trial court. The decision of the Court of Appeals is reversed, and this case is remanded to that court for its further remand to the Superior Court, Mecklenburg County, for reinstatement of its judgment.\nREVERSED AND REMANDED.", "type": "majority", "author": "MITCHELL, Chief Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Amy R. Gillespie, Assistant Attorney General, for the State-appellant.", "Isabel Scott Day, Public Defender, by Julie Ramseur Lewis, Assistant Public Defender, for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARK EDWARD FLY\nNo. 472A97\n(Filed 9 July 1998)\n1. Appeal and Error \u00a7 22 (NCI4th)\u2014 appeal based on dissent in Court of Appeals \u2014 sufficiency of evidence \u2014 reasoning of dissent \u2014 argument of additional reason\nWhere the dissent in the Court of Appeals was based on the premise that there was sufficient evidence to support defendant\u2019s conviction for indecent exposure, the State was not limited to arguing solely the reason stated in the dissent but could argue any reasoning in support of the proposition that the evidence was sufficient to support defendant\u2019s conviction. Therefore, although the reason stated in the dissent was that the buttocks are private parts, the State could make the additional argument on appeal that the evidence was sufficient to support defendant\u2019s conviction because it showed that, at the time defendant\u2019s buttocks were exposed, his genitals were also exposed.\n2. Obscenity, Pornography, Indecency, or Profanity \u00a7 25 (NCI4th)\u2014 indecent exposure \u2014 private parts \u2014 organs of sex and excretion\nThe phrase \u201cprivate parts\u201d in the indecent exposure statute, N.C.G.S. \u00a7 14-190.9, includes the external organs of sex and excretion.\n3. Obscenity, Pornography, Indecency, or Profanity \u00a7 25 (NCI4th)\u2014 indecent exposure \u2014 buttocks not private parts\nThe buttocks are not private parts within the meaning of the indecent exposure statute.\n4. Obscenity, Pornography, Indecency, or Profanity \u00a7 25 (NCI4th)\u2014 indecent exposure \u2014 presence of member of opposite sex\nThe indecent exposure statute does not require the private parts to be exposed to a member of the opposite sex before a crime is committed, but rather that they be exposed \u201cin the presence of\u201d a member of the opposite sex. The statute does not go to what the victim saw but to what defendant exposed in the victim\u2019s presence without the victim\u2019s consent.\n5. Obscenity, Pornography, Indecency, or Profanity \u00a7 25 (NCI4th)\u2014 indecent exposure \u2014 sufficiency of evidence\nThe evidence was sufficient to support defendant\u2019s conviction of indecent exposure in that the jury could find from the evidence that defendant had willfully exposed private parts, either his anus, his genitals, or both, in the presence of the female victim where it tended to show that, when the victim rounded a turn in the steps of her condominium, she saw defendant \u201cmooning\u201d her; defendant was bent over at the waist, with his short pants pulled down to his ankles, and he was otherwise naked from his head to his feet; the victim saw what she described as defendant\u2019s \u201cfanny\u201d or \u201chis buttocks, the crack of his buttocks\u201d; and when the victim yelled at defendant, he pulled his pants up and ran.\nOn appeal pursuant to N.C.G.S. \u00a7 7A-30(2) from a divided panel of the Court of Appeals, 127 N.C. App. 286, 488 S.E.2d 614 (1997), reversing a judgment entered by Helms, J., on 20 December 1995, in Superior Court, Mecklenburg County. Heard in the Supreme Court on 10 February 1998.\nMichael F. Easley, Attorney General, by Amy R. Gillespie, Assistant Attorney General, for the State-appellant.\nIsabel Scott Day, Public Defender, by Julie Ramseur Lewis, Assistant Public Defender, for defendant-appellee." }, "file_name": "0556-01", "first_page_order": 604, "last_page_order": 610 }