Opinion
No. COA96-1109
Filed 19 August 1997
Obscenity, Pornography, Indecency, or Profanity § 25 (NCI4th) — indecent exposure — buttocks not private parts under statute.
The trial court erred by denying defendant's motion to dismiss a prosecution for indecent exposure under N.C.G.S. § 14-190.9 in which defendant was charged with indecent exposure for exposing his buttocks. The statute prohibits willfully exposing "private parts" and the Court of Appeals has held that "private parts" as used in N.C.G.S. § 14-190.9 refers to "genital organs." 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.
Judge WALKER dissenting.
Appeal 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.
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.
Mark Edward Fly (defendant) appeals a jury verdict finding him guilty of indecent exposure.
On 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. The defendant bent over, with his back to Glover, allowing Glover to view the "crack of his buttocks" and his "fanny." 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 "the private parts of his person in a public place."
At 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.
The dispositive issue is whether "private parts" as that phrase is used in N.C. Gen. Stat. § 14-190.9 (1993) includes a person's buttocks.
Section 14-190.9 makes it a Class 2 misdemeanor for any person to:
(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 . . . .
N.C.G.S. § 14-190.9 (emphasis added).
Although the statute does not define "private parts," this Court has previously held that "private parts," as that phrase is used in section 14-190.9, refers to the "genital organs." State v. Jones, 7 N.C. App. 166, 169, 171 S.E.2d 468, 469 (1970) (holding that the exposure of a woman's breasts did not violate section 14-190.9 because they were not her private parts). Because a person's buttocks are not "genital organs," see The American Heritage College Dictionary 568 (3d ed. 1993) (defining genital organs as those related to "biological reproduction"), it follows that the buttocks are not "private parts" 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).
We note that the dissent relies on N.C. Gen. Stat. §§ 14-190.13 and -202.10 to "establish that our legislature intended to include buttocks as a `private part.'" 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 "private parts," 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 "construed together in order to ascertain legislative intent"). 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 "private parts" 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's decision in Jones because it reflects a satisfaction with that Court's definition of "private parts" as a person's "genital organs." See Anderson v. Baccus, 109 N.C. App. 16, 22, 426 S.E.2d 105, 108 (1993) ("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"), aff'd in part and rev'd in part on other grounds, 335 N.C. 526, 439 S.E.2d 136 (1994).
We recognize that the conduct engaged in by the defendant in this case is indecent as that term is generally defined. See The American Heritage Dictionary 653 (2d college ed. 1982) (indecent defined as "[o]ffensive to good taste"). 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 "by implication or equitable construction" to include acts not clearly within the prohibition. State v. Hill, 272 N.C. 439, 443, 158 S.E.2d 329, 332 (1968).
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 "private parts" to be a person's genitals. See The American Heritage Dictionary 986 (2d college ed. 1982); Bernard S. Maloy, M.D., Medical Dictionary for Lawyers 467 (1951); XII The Oxford English Dictionary 516 (2d ed. 1989).
In this case there is no evidence that the defendant exposed his genital organs and the trial court therefore erred in denying the defendant's 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).
Although the issue is not presented in this case, the defendant's 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's buttocks "probably constitutes a breach of peace or public nuisance").
Reversed.
Judge JOHN concurs.
Judge WALKER dissents with separate opinion.