A defendant in a felony indecent exposure case under G.S. 14-190.9(a1) (person at least 18 years of age exposing private parts in the presence of a person less than 16) is not entitled to an instruction requiring the jury to find that the victim could have seen the exposed private part had the victim looked.  Rather, it is sufficient for the instruction to explain that the jury must find beyond a reasonable doubt that the exposure was in the presence of another people.  In this case, the defendant exposed himself to a woman while sitting in the driver’s seat of his car.  Her child was playing nearby and the defendant was charged with felony indecent exposure for exposing himself in the presence of the child.  The trial court refused to give the defendant’s requested jury instruction that for it to find that the defendant exposed himself in the presence of the child it must find that the child “could have seen [the exposure] had [he] looked,” and instead instructed that the element of the offense was satisfied if it found that the exposure “was in the presence of at least one other person.”  Examining its analysis of a prior version of G.S. 14-190.9 in State v. Fly, 348 N.C. 556 (1998) and the plain language of the current statute, the court held: 

[T]he requirement that the exposure be “in the presence of” the victim does not require a jury to find that the victim could have seen the exposed private parts had he or she looked. The statutory requirement that the exposure be in the presence of another focuses on where a defendant places himself relative to others; it concerns what the defendant does, not what the victim does or could do. See, e.g., Fly, 348 N.C. at 561, 501 S.E.2d at 659 (“The statute does not go to what the victim saw but to what defendant exposed in her presence without her consent.”). If a defendant exposes himself in public and has positioned himself so he is sufficiently close to someone under the age of sixteen, the presence element of subsection 14-190.9(a1) is satisfied.

The court went on to find that there was sufficient evidence in this case that the defendant’s exposure was in the presence of the child victim where the child was about twenty feet away from the defendant playing in the yard of the child’s home.