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about Criminal Defense in North Carolina and South Carolina


Monday, December 21, 2009

Indecent Exposure: Is it a Crime to be Naked at Home?

A very serious crime in North Carolina is indecent exposure. To prove a basic misdemeanor charge of indecent exposure in North Carolina, the state must show that a person willfully exposed his/her private parts  in a public place while in the presence of another person. I won't go into all the legal definitions of private parts, but I can write that courts have ruled that buttocks are not necessarily a 'private part' (however, I don't encourage anyone to go on a mooning expedition to test the law) and a woman  breastfeeding in public is not a violation. The law is very fact specific. This recent story from Fairfax, Virginia caught my eye; a man was convicted of indecent exposure because he was found walking around his house naked and people saw him through his window. Click here for a link to the story. So, looking at the crime of indecent exposure- is it a crime to be naked at home?

In this story, the defendant Erick Williamson stated that he simply was exercising a "personal freedom" by walking around his house naked. Witnesses for the prosecution stated that he would pose in front of doorways when people walked by. It poses (excuse the pun..) a very interesting legal question of what constitutes a public place. Mr. Williamson's conviction will certainly be appealed. We might also see the Virginia law amended to clarify what constitutes a public place.

 In North Carolina, courts have found that a public place is a place distinguishable from a private place, but not necessarily a place devoted solely to the use of the public. Factually speaking, courts have found that a car in a public parking lot is a public place and a creek embankment adjacent to a backyard was public in nature.

On a side note, you might be surprised to know that  it wasn't until 2005 that North Carolina amended the indecent exposure statute to include people of the same sex. Prior to 2005, the exposure of private parts had to occur in the presence of a person of the opposite sex to be a violation.

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Saturday, December 5, 2009

Domestic Violence: Is There A Double Standard?

A famous golfer's early morning car crash and alleged argument with his wife has reignited conversation about domestic violence. We'll probably never know what happened in the Florida house that night and many will argue over whether the matter should remain private, but what it has initiated is the issue of domestic violence and whether there is a double standard.

A commentator on Larry King last night stated that if Tiger Woods had been alleged to assault  his wife and she was the driver in the car, the Florida Highway Patrol would have conducted a very different investigation. The same controversy exists in noteworthy cases of school teachers. Is there more public outrage when it is a male teacher and female student vs. a female teacher and male student? Reverse the gender roles in the Tiger Woods scenario- would your opinion change?

Many times as a prosecutor I was in charge of what they called 'in custody filings'- those who had been arrested within the last 24 hours were being held in custody. Starting at 7:30 a.m. every morning police departments would bring police reports to the office asking for criminal charges to be filed. I would review the reports and decide whether to proceed with the case. If I chose to reject the case, the person was released from custody. Mecklenburg County has a different filing system which I don't believe is as effective as this. However, that is a blog post for another time..

In this case, the police had arrested a female who was more than 9 months pregnant- she was literally ready to give birth at any moment and was being held downstairs in the jail. The previous night, the police had been called to a local park by a 911 call made by a male on a cell phone. The male was married to the pregnant woman and they had been alleged to have had marital problems. He had asked his wife to meet her at the park to talk. Husband proceeded to tell her that he had met someone else and was leaving her. She allegedly slapped him in the face a few times. Husband calls 911.

I chose not to file this case and directed the jail to release her immediately. This case ignited an early morning discussion among prosecutors in the office and the issue of reverse domestic violence- that is what female on male domestic violence is sometimes called. I chose not to file the case for several reasons. First, it was a 'one on one case with no corroboration' (he said/she said). I don't recall the police interviewing the woman and obtaining any incriminating statements, husband did not have any injuries and there were no other witnesses to the crime. At trial, the wife could very well testify that husband came after her first and she defended herself. A prosecutor's case should have a substantial likelihood of success of conviction at trial before they proceed with the case. This case did not meet that standard. Finally, a prosecutor must convince 12 members of the community to find this woman guilty of the crime of assault and battery on her husband. The general consensus in the office was that no jury would convict a pregnant woman of slapping her husband after being told he is leaving her and her child for another woman.

Now, change the facts and gender- wife recently has child and is not happy in her marriage. Wife tells husband she is leaving him for another man and he subsequently slaps her. Do you feel different about the case?


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Wednesday, December 2, 2009

North Carolina Shoplifting: An Unlikely and Unexpected Defendant

I was in court yesterday handling a traffic ticket for a client who had failed to appear on her court date and saw a shoplifting case with an unlikely and unexpected defendant. As attorneys wait for their cases to be called, one often overhears the current case being addressed in open court. I was in a courtroom where the majority of cases were shoplifting related. In North Carolina, this crime can be called shoplifting, unlawful concealment, possession of stolen merchandise, or embezzlement. For information about the law surrounding this and the differences, click here.

The particular case that caught my attention  was a 70+ year old woman who had stolen food from three different grocery stores within a one month time period. This woman had only been in trouble once before her entire life- she bounced a check. The law calls that insufficient funds, uttering forged paper, or uttering worthless checks. The state must show that you wrote a check and you knew you didn't have enough money to cover it. Technology has made this crime more difficult - I believe larger stores have instant access to your available funds when you write a check. Anyway, I found this case sad for a variety of reasons. The judge sentenced her to several requirements including supervised probation (meaning she will have to report to a probation officer) and 60 days of suspended jail time. I should mention that when a person admits guilt or pleas guilty to an offense in North Carolina, the state will provide the judge with facts surrounding the crime, any prior criminal history, and other information the state deems relevant. Many times the police officer or witnesses to the crime will be present to provide such  facts.

What struck me was that no one addressed the core issue surrounding why a 70 year old woman, who has basically led a crime free life, was suddenly stealing food. Her daughter was in court, crying, shocked to see her mother accused of a crime and subsequently admitting to the crime. The case left me with many unanswered questions and thoughts.

For some interesting statistics surrounding shoplifting, the impact it has on society, and general information, go to the National Association for Shoplifting Prevention or click here. Here are some statistics from the website: Several studies show that depression exists in 1/3 of shoplifters. Men and women shoplift in equal numbers. Shoplifters don't plan their crimes: 73 percent of adults and 73 percent of juveniles don't plan to steal in advance. According to the website most shoplifters are "non-professionals" who steal, not out of criminal intent, financial need or greed but as a response to social and personal pressures in life. One of the more alarming statistics: studies show that 1 in 11 Americans shoplift. As a result, it is one of the most common crimes in our country causing up to 35 million dollars in losses per day. This is an issue that needs to be properly addressed- however is sending a 70 year old women to jail the best path to follow?

Fortunately, in North Carolina there are programs that address this issue. In Mecklenburg County, specific classes are sometimes offered to those who have been accused of shoplifting. Upon successful completion of the class, the case can be dismissed. However, every case is different and it is within the discretion of the District Attorney to decide whether they offer this to the accused. Therefore, it is important to discuss any shoplifting, theft, or unlawful concealment case with an attorney, A shoplifting conviction will follow you through your entire life and make it extremely difficult to get a job, get into school or even rent an apartment.

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