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Proximity not enough

Court of Appeals adds “had they looked” consideration

Heath Hamacher//July 26, 2018

Proximity not enough

Court of Appeals adds “had they looked” consideration

Heath Hamacher//July 26, 2018


Where the state failed to prove a crucial element of felony indecent exposure—and the jury was never instructed to consider the element—the state Court of Appeals has ruled that the defendant is entitled to a new trial.

According to prison records, Neil Hoyle has already served his time for exposing himself to a woman and her 4-year-old son. But in his appeal of the 2017 conviction, Hoyle argued that the state failed to present sufficient evidence to support the felony charge because for the alleged exposure to be “in the presence of” a child, the law requires not only that the child be present, but that he or she “could have seen had they looked.”

In its July 17 opinion, a divided appeals court agreed.

“A new trial is required because the trial court failed to give adequate instructions upon defendant’s request for a special instruction explaining the meaning of presence in the context of indecent exposure under North Carolina law,” Judge John Arrowood wrote for the court.

A message left with the state Attorney General’s Office was not returned by press time.

Calling card

Court records say that in March 2016, Hoyle stopped his vehicle in front of a home where a woman was unloading groceries and her son was playing in the yard. The passenger side of his vehicle faced the home and the road was slightly elevated from the yard. Hoyle first asked the woman for directions, and then offered her his business card, telling her that he could work on her house. Reluctantly, the woman approached the vehicle—arms full of groceries—and reached through the passenger window to take the card. According to prosecutors, that’s when she saw Hoyle’s hand on his exposed penis. She said that she jerked back, dropped her groceries, and fell into a small ditch. She heard Hoyle laugh as he drove away, the woman said, and she got up, grabbed her son—who was swinging in a nearby tree—and went inside to call police. According to court records, the woman went back outside to gather some things that she had dropped and found Hoyle’s card lying on the ground. Police used the card to identify Hoyle, a man in his mid-40s.

The mother testified that Hoyle never “verbally acknowledged” the child but did look over at him. She added that she did not think her son, who was playing approximately 20 feet from Hoyle’s vehicle, saw what Hoyle did. Hoyle admitted to interacting with the mother but said that he never exposed himself. Ultimately he was convicted of felony indecent exposure but the court arrested judgment on misdemeanor indecent exposure.

Let’s define ‘presence’

On appeal, Hoyle challenged the denial of his motion to dismiss and his request for a special jury instruction for felony indecent exposure. According to state law, felony indecent exposure requires that an adult expose his or her private parts in a public place, in the presence of a person under 16 years old, and for the purpose of arousing or gratifying sexual desire. Hoyle argued during his motion to dismiss and on appeal that there is insufficient evidence to show that the alleged exposure took place “in the presence of” a child.

The applicable statute, the appeals court noted, does not require that one expose himself “to” a child, but “in the presence of” a child.

In State v. Fly the state Supreme Court found that indecent exposure does not require that someone see the exposure, “provided it was intentionally made in a public place and persons were present who could have seen if they had looked.” And in State v. Fusco, the Court of Appeals held that the state did not have to prove what the victim actually saw, only that the defendant exposed himself and the victim “was present during this exposure and could have seen had she looked.”

Based on these cases, Hoyle contended that to support a felony exposure charge, a complainant must have been able to have seen the exposure “if they had looked without much effort.”  Here, he argued, the child would have had to move away from the tree he was playing on, walk up to the road, move his mother out of the way, and lean into the passenger window.

The state interpreted “presence” more plainly than Fly and Fusco, arguing that proximity is sufficient and that because the child here was in the immediate vicinity, the exposure happened in his presence.

A jury can’t consider what it doesn’t know

The appeals court disagreed with Hoyle’s argument that the felony should have been dismissed, finding that a jury should decide whether any exposure occurred in the presence of the child. But it agreed that Fly and Fusco are controlling here, and that for Hoyle to be guilty, the child must have been able to see the exposure had he looked. The majority also agreed that the trial court erred by denying Hoyle’s request to make the jury aware that a person need not actually see the exposure, but they could have seen it had they looked. The trial judge considered the request and ultimately instructed the jury that a complainant doesn’t need to see one’s private parts for indecent exposure, but left out the “had they looked” instruction.

As such, the instructions were inadequate and Hoyle was prejudiced.

“[I]t is likely that without the additional instruction defining presence pursuant to Fly and Fusco, the jury considered only the child’s proximity to the alleged exposure in determining whether the exposure was ‘in the presence of’ the child because, absent the requested instruction, there was no reason for the jury to consider whether the child could have seen the alleged exposure had he looked,” Arrowood wrote.

‘Not an element’

Judge Hunter Murphy agreed that the majority’s decision is a “logical extension” of the “had they looked” language in Fly and Fusco, and that requiring that a victim be able to see exposure “had they looked” in order to establish “in the presence of” is typically an appropriate application of the rule of lenity. But in dissenting, he wrote that the General Assembly intended for courts to construe the language of the indecent exposure statute expansively—a broad interpretation that “excludes the rule of lenity from our normal canons of statutory construction.”

“Here, however, the Majority’s opinion takes a narrow view of the presence element of indecent exposure, and the ‘could have seen had they looked’ standard adopted by the Majority today is not an element of N.C. Gen. Stat. § 14-190.9,” Murphy wrote. “The trial court was not required to deviate from the pattern jury instruction regarding the “in the presence of” element, and the trial court’s decision to omit Defendant’s proffered addition was not an abuse of discretion.”

Hoyle’s attorney, Anne Bleyman of Chapel Hill, declined to discuss the case, citing the split decision and the possibility that the state will seek Supreme Court review.


The 14-page decision is State v. Hoyle (Lawyers Weekly No. 011-233-18). The full text of the opinion is available online at

Follow Heath Hamacher on Twitter @NCLWHamacher



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