1. Indecent Liberties--presence of children--sufficiency of evidence
The trial court correctly denied defendant's motion to dismiss a charge of indecent
liberties under N.C.G.S. § 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's presence by waving to them in one instance
and changing his position in another instance. The fact that the children were outside
defendant's 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.
2. Indecent Liberties--presence of children--not unconstitutionally vague
N.C.G.S. § 14-202.1(a)(1), the indecent liberties statute, is not unconstitutionally vague
as applied where defendant was 35 feet away inside his home behind a glass door.
3. Indecent Liberties--instructions--masturbation
The trial court did not err in an indecent liberties prosecution by instructing the jury that
“masturbation in the presence of another would be an immoral or indecent act.”
Appeal 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.
Attorney General Michael F. Easley, by Special Deputy
Attorney General Robert J. Blum, for the State.
Tamura D. Coffey, for defendant-appellant.
GREENE, Judge.
James 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. § 14-202.1(a)(1).
Prior to trial, Defendant moved to dismiss the indictments
on the ground that section "14-202.1 is unconstitutional as
applied" to him. In support of this motion Defendant argued that
"there is absolutely no way he could have known that his conductwas in violation of 14-202.1 as it is written." This motion was
denied by the trial court.
The State's evidence at trial tended to show that Defendant
lived in the Walkertown area of Winston-Salem, North Carolina.
The side of Defendant's 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's 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's home,
stopped to play with dogs that were in Defendant's yard. All of
the children saw Defendant standing in his house naked behind the
glass door, waving at them and fondling his penis.
(See footnote 1)
The children
informed their parents of Defendant's actions, and several
parents contacted Deputy Sheriff Danny Carter (Deputy Carter) of
the Forsyth County Sheriff's Department. Deputy Carter visited
the home of one of the children on that same afternoon and spoke
with that child and two other families.
The next day, 25 March 1997, Deputy Carter set up a
surveillance point outside of Defendant's home. Deputy Carter
positioned himself so that he could observe the sliding glass
door of Defendant's home, but 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's home. Before the school bus arrived, Deputy Carterobserved 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's home. Two of the children
stopped to play with the dogs in Defendant's yard. Deputy Carter
then observed Defendant reappear in front of the glass door
completely naked with "his penis in his right hand and was
jerking on it." Defendant also "moved his pelvic area back and
forth a couple of times." Deputy Carter observed the boys
looking at Defendant, at which time Defendant "turned toward them
at an angle and arched his back and started doing it some more."
At the close of the State's 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.
While instructing the jury on the law regarding taking
indecent liberties with a minor child, the trial court stated,
"Masturbation in the presence of another would be an immoral or
indecent act." 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.
[1]Defendant was charged with and found guilty of violating
subpart (a)(1) of section 14-202.1. Section 14-202.1 provides in
part:
(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:
(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
(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.
N.C.G.S. § 14-202.1 (1993) (emphasis added).
Defendant contends there is not substantial evidence in this
record that he was "with" 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.
Although "with" as used in section 14-202.1(a)(1) has notbeen 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 "with" 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. § 14-202.1(a)(2) (lewd or
lascivious acts must be "upon or with the body or any part or
member of the body of any child"). It is necessary, however,
that the defendant, at the time of the immoral, improper, or
indecent liberty, be either in the actual or constructive
"presence" 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 "be within a certain distance of or in close proximity
to the child." State v. Strickland, 77 N.C. App. 454, 456, 335
S.E.2d 74, 75 (1985) (conviction sustained where defendant was
"62 feet away" from the children at the time of the indecent
liberty).
In 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 thechildren in his yard some thirty-five feet away, exposed his
penis and masturbated; and (3) Defendant acknowledged the
children's 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 "with"
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's 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's purpose for committing the indecent liberty is the
gravamen of the offense). Because there is substantial evidence
that Defendant was "with" the children, the trial court correctly
denied Defendant's 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).
[2]As a general proposition, the vagueness of a criminal
statute must be judged in the light of the conduct that ischarged 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's 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 "a substantial amount of
constitutionally protected conduct," 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'g 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).
A penal statute survives a void for vagueness challenge if
it defines "the 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." Id. at 357, 75 L. Ed. 2d at 909.
The more important aspect of the vagueness doctrine is "the
requirement that a legislature establish minimal guidelines to
govern law enforcement." Id. at 358, 75 L. Ed. 2d at 909. This
is necessary in order to prevent policemen, prosecutors, andjuries 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 § 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.
Defendant contends the term "with" contained in section 14-
202.1(a)(1) "is 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 'with' children outside his home,
some 35 feet away." We disagree. Admittedly the word "with" 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's pre-trial motion to dismiss the indictments on this
ground.
(See footnote 2)
[3]Defendant's final contention is the trial court erred by
instructing the jury that, "Masturbation in the presence of
another would be an immoral or indecent act." We disagree. This
Court has passed upon this identical argument and found "no
prejudicial error in the challenged instruction." 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.
No error.
Judges MARTIN and MCGEE concur.
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