Wisneski v. State

921A.2d 273 Eugene Gerald WISNESKI Maryland. STATE 76, Sept. Term, No. 2006. Appeals Maryland.

Court April Gomez, Piedad Asst. (Nancy Forster, Public Defender S. Defender, brief), Public on for petitioner. Keller, E.

Diane Asst. Atty. Gansler, Gen. (Douglas F. Atty. Gen., brief), for respondent.

Argued BELL, C.J., RAKER, CATHELL, before HARRELL, BATTAGLIA, GREENE and ALAN M. ' (Retired, WILNER specially assigned), JJ.

BATTAGLIA, J. Petitioner, Eugene Wisneski, while a guest home, suddenly exposed his genitalia to three people other room, who were not family members and who deeply offended by that conduct. There was no evidence whether anyone outside the home did see or could have seen what he had done. behavior, For the Wisneski was convicted in the Circuit Court for Montgomery County of the common law crime of indecent exposure. that, this appeal, he contends because the offense requires that the exposure in a “public place,” his to casual in private observers home does not suffice to constitute the offense.1 disagree. We Background

I. 1, 2005, At on July noontime Brandon James visited his neighbor Bridgette Penfield in Germantown, her home in Maryland, hours, and remained for about two talking with her and another neighbor who also Petitioner, was visiting, Gerald Eugene Wisneski; both Wisneski and Penfield were drinking beer. Brandon returned to Penfield’s home about five hours sister, later with his fifteen-year-old Jennifer James. Wisne- presented question, Wisneski 1. to us one granted for which we certiora ri, (2006): 395 Md. 910 A.2d 1061 "public place” Does the element of the common law offense of exposure require exposure public place, ain or is a non- exposure by guest consensual an invited private inside a home to people three family who are not members of his or his household and where the not visible outside of the home to observers, casual sufficient to constitute the crime? previous visit home since Brandon’s had not left Penfield’s ski later, twenty minutes to drink About and had continued beer. up,2 on stood period,” if “was her asked Jennifer she Wisneski her, shaking them and penis his and testicles and period.” on her “she was question whether repeating Wisneski, away her head while immediately turned Jennifer from genitals himself, began grabbing clothing after who and them in Jennifer’s direction. shaking of his shorts outside actions, became en- Brandon Catching sight of Wisneski’s prompting to fisticuffs and Wisne- raged, challenging Wisneski the home.3 abruptly out of his and leave jump ski seat trial, witnesses, called Brandon Jenni- At the State four James, officers, arresting Blakesley two Brian fer and the Department.4 Police Morgan Montgomery County W.R. any did not call witnesses. first witness: Jennifer was State’s Jennifer, you you THE recall saw Mr. STATE: do o’clock in year 1st of this around 7 July Wisneski on evening? sitting big "was the ... Jennifer testified that Wisneski couch pane,” facing big ... window while testified that he was Brandon "[slitting testimony, was no the chair beside the window.” There however, curtains, blinds, any had or other as to whether the window treatments, open or closed. form whether treatments subsequently walking while to his home from

3. Wisneski was arrested shopping bag carrying was police he Penfield’s. The searched handgun containing two live In addition to the discovered a rounds. possession charged with one count of of a having regulated been convicted of a crime violence in firearm Article, 5-133(c) Criminal one count of violation of Section Law having disqualify- of a possession regulated been of a firearm convicted Article, 5—133(b) Safety ing crime in violation of Section the Public handgun wearing, carrying transporting count and on and one 4-203(a)(l)(i) person of Section the Criminal about in violation Article, handgun Law of which he was convicted. None of the convic- challenged Court. tions is before this Penfield, Bridgette Although subpoenaed the State had Assistant Attorney reported at that she herself into a State’s trial had checked requested hospital testify and would not be available testimony. proceed trial without Penfield’s Yes, JENNIFER: I did.

THE STATE: you Where did see Mr. Wisneski that day? JENNIFER: house. [Penfield’s] THE STATE: Okay, who’s [Penfield]?

JENNIFER: Our next door neighbor. THE Okay. STATE: WTiy you don’t tell the Court what you doing there day. JENNIFER: I talking was there [Penfield] [Wisne- drunk, was there. ski] He was just and he talking started sexual stuff to me.

JENNIFER: He was sitting house. He was [Penfield’s] drinking beer then just he asking started was I on my period and stuff.

THAT Okay. STATE: go Let’s to that then. WThenhe said that to you, exactly what say you? did he JENNIFER: I on my period Was and— THE Okay. STATE: And when he said that did he do anything? What did he do? pulled

JENNIFER: He penis out his and his other thing. THE STATE: His testicles?

JENNIFER: Yeah. Now,

THE STATE: Okay. when he pulled them out what you do mean? What did he do?

JENNIFER: He them at me. s[hoo]k THE STATE: Okay. What was he wearing?

JENNIFER: He was wearing shorts I believe. I think it was shorts.

THE STATE: his, After he pulled out after you, himself to you what did do? that’s when fast. And my head real I turned

JENNIFER: seen it. my brother cover At did Mr. Wisneski any point Okay. STATE:

THE up? back he and when pants in his Yes, put he it back JENNIFER: his pants his on his he hand pants put put back it. shaking part started following colloquy occurred: cross-examination, the On frequented brother you your And THE DEFENSE: the street? you? It’s across often did [Penfield]’s cards. playing in there Yeah, to be we used JENNIFER: Mr. Now, was you went in where DEFENSE: when THE seated? facing couch the, big on the sitting He was JENNIFER: pane. window big like the sitting? where was Okay. [Penfield] And

THE DEFENSE: or on edge on the sitting [Penfield] JENNIFER: her up, is set chair, really, way her couch I can’t other chair another and then there’s big chair there’s furniture it. beside Okay. DEFENSE:

THE edge on the sitting I think she was JENNIFER: But big couch. there just And the two them DEFENSE: THE Yes? you arrived? when Yes.

JENNIFER: himself to he you exposed And now said THE DEFENSE: you? I, I in— first walked Yeah, when when

JENNIFER: but expose himself? He didn’t THE DEFENSE: He, later. until like minutes JENNIFER: THE Okay. DEFENSE: And himself to you up? did he stand Yes.

JENNIFER: THE DEFENSE: He stood up? Okay. pull And did he his pants down? up

JENNIFER: He lifted the bottom of his shorts his, when out pulled that’s his his other penis thing. I say don’t know how to it. testify: State then called Brandon to

THE you got STATE: When and your sister there what did he do? What did do? the defendant He my BRANDON: asked was period sister she her shaking thing started his at her.

THE All right, you say STATE: when start his shaking at her thing you what do mean? I ya’ll

BRANDON: don’t know how like it. say me Penis.

THE Okay. STATE: shaking Was he covered when he was it shaking her was uncovered when he at her? BRANDON: Uncovered.

The following testimony was elicited on cross-examination: Now,

THE you got DEFENSE: [to Penfield’s house] where was Mr. Wisneski? Where was he? Sitting

BRANDON: in the chair beside window. THE Sitting DEFENSE: in the chair? Yeah,

BRANDON: a recliner.

THE DEFENSE: And where was [Penfield]? Sitting

BRANDON: on the couch straight across from him. THE you DEFENSE: And left [Penfield] and Mr. Wisneski there drinking still beer?

BRANDON: Yes.

THE Okay. you DEFENSE: And came back with your right? sister is that

BRANDON: Yes. that Mr. indicated Okay. you And THE DEFENSE: right? something unusual is did Yes. BRANDON: wearing he was Do recall what you DEFENSE:

THE day? shorts on. I he had some

BRANDON: believe Now, that Mr. Wisneski you DEFENSE: indicated THE right? himself is BRANDON: Yes. pants? He dropped DEFENSE:

THE completely. them dropped He ain’t BRANDON: enough them down pulled But he DEFENSE: THE genitals. show his to Yeah, enough show he them down pulled

BRANDON: genitals. his officers, to who testified police called the two

The State also Wisneski, after which surrounding the arrest of details to a motion case, make prompting its Wisneski State rested the court denied. Wisneski acquittal, for of which judgment for acquittal his motion with his case and renewed then rested exposure, arguing to for indecent charge respect a “public place” of Penfield’s home did not constitute interior motion, again denied The court required. the offense it definition, if occurs under reasoning that “as I read the they if people it be other circumstances where could seen look, a public place.” that constitutes happen instruction, following with the charged was then jury exception: took no which Wisneski exposure you of indecent In order to convict defendant doubt that the defendant beyond must a reasonable find body part or other intentionally penis his exposed expo- place. in a Indecent public exhibited should crime, sure, have done intention- to amount to a must been from the conduct of may Intent be inferred ally. accused the circumstances environment of the occurrence.

An ... becomes indecent defendant [a] that, exposes place himself at such a time and as a reason- man, able he knows or should know act will be open of An observation others. is or in a public place it occurs under such circumstances that it if could be seen aby persons number they present of if and happen to look. It is immaterial that the n seen by only person one at a open occurs to the exposed view the anyone where who to have been happened nearby have seen had could. looked. added).

(emphasis The jury found guilty indecent exposure, as well as handgun charges, various and the court imposed a five year illegal sentence for the of a possession regulated firearm a person previously convicted a crime violence, merged convictions, the other handgun and also imposed a consecutive six-month sentence for the crime of exposure. appeal

Wisneski noted timely to the Court of Special Appeals, which affirmed his for conviction a reported opinion, Wisneski v. 169 Md.App. A.2d 385 concluding that Wisneski had in the home of a party, third daylight, while in room that had a “big pane.” window The intermediate'appellate court that, although determined there was insufficient evidence the jury to determine whether Wisneski was visible to pass- ers-by window, outside the his conduct still amounted to exposure because, home, indecent as a in a guest private he had exposed intentionally, opposed inadvertently, as to to persons three who were not members of his or family household, without their permission consent, in an of area not house regarded private, as such as a bathroom. Id. at 551-52, 905 A.2d at 399. The Special Appeals of held Court that, circumstances, exposure under those had occurred the open by others, and was thereby constituting observed an exposure “public place.” in a Id.

587 that, the com- Court, under contends this Wisneski Before of not the conduct is law of indecent mon offense criminalize, common law seeks oneself which exposing an argues of He exposure. public nature but if, under our place” in a “public occurs exposures indecent State, 605-06, 602, 130 A.2d v. 212 holding in Messina Md. of by a number (1957), “likely it is to be seen 578, 579-80 Webb, Messina, Regina v. 1 Den. Citing observers.” casual Goldstein, 336, A. v. 62 1006 and State (1848), 72 N.J.L. 338 that, case, (1906), in this “casual observers” argues by the outside may passing have been those individuals who home, as invited not those inside the home and Penfield’s the “public” maintains that ele- therefore guests. Wisneski exposure is common law crime of indecent satis- ment passing by would only public casually of the fied members actually and or more did see likely to see the one it, place within a “that is for time or if the occurs distinguished from a portion public, to a being open State, 557, Lockhart v. room,” 116 Ga. 42 S.E. citing State, (1899), v. (1902), 109 S.E. 577 Morris Ga. 34 787 (1970). Byous 106 v. Ga.App. 175 S.E.2d with the precepts these are consistent argues “public place,” as well as the usage common of the term public between the realm and Supreme Court’s distinction Karo, private domain enunciated in United States v. U.S. U.S., v. Kyllo (1984), 82 L.Ed.2d 530 S.Ct. (2001). He, 533 U.S. 121 S.Ct. 150 L.Ed.2d therefore, that, a private because Penfield’s home was alleges residence, open general public, not use and because home passers-by, he was not visible Penfield’s did under the common law offense of “public place” constitute exposure. Wellard, Regina Conversely, the State cites Messina Cox, for the the circum- proposition C.C. stances dictate the common law crime whether occurred, place public so that members that, under Messi- present. alleges are The State na, in a if it is an occurs visible

588 because, circumstances,

“casual observers” under the it could seen of persons, they present “be number happened 605-06, look.” to 212 Md. at A.2d at 130 579-80. State, therefore, The contends that indecent can occur within the private building confines even without an indicating evidence from exposure could viewed Pallman, v. State building, citing outside the 5 Conn.Cir.Ct. 202, (1968), Legel, v. 248 589 People 554, A.2d 24 Ill.App.3d State, and Greene v. (1974), 321 N.E.2d 164 191 Ga.App. (1989), in support. 381 S.E.2d 310 The main- State further home, “private” tains the characterization of a versus a for public place, Fourth purposes Amendment protec- against tion searches and is in way unreasonable seizures no at applicable to the case bar because this case does not implicate protections, those nor did occur in home, he might legitimate expecta- Wisneski’s where have a privacy. tion of Analysis

II. In this case we are called upon determine whether an that occurs a private within residence can “public” exposure purposes constitute a of the offense of whether there was sufficient evidence trial presented jury for the determine Wisneski’s conduct “public” satisfied the element of offense. We set forth the appropriate standard for reviewing sufficiency State, Harrison v. evidence Md. 382 855 A.2d 1220 (2004), stating: for appellate evidentiary standard review review

sufficiency any is whether rational trier of fact have could beyond essential elements of the crimes found reason- Albrecht, See v. State 475, 478-79, able doubt. 336 Md. 649 (1994). A.2d light We view evidence See id. v. most favorable to Jackson prosecution. (citing Virginia, 307, 319, 2781, 2789, 443 U.S. 99 S.Ct. 61 L.Ed.2d State, (1979) and Branch v. 177, 182-83, 305 Md. (1986)). 502 A.2d give regard We “due [fact facts, finding of its conflicting finder’s] resolution of evi- and, its to observe dence, opportunity significantly, McDonald credibility of witnesses.” assess denied, 522 U.S. 452, 474, cert. 701 A.2d Md. (1998) Al (quoting 182 140 L.Ed.2d 118 S.Ct. 337). brecht, A.2d at 649 Md. 487-88, Moye v. quoting A.2d at

Id. at (2002). 2, 12-13, A.2d Md. ais crime the of indecent Maryland,

In offense, English from common derived originally law common Rights of November adopted our Declaration law when 3, 1776, originally provided, pertinent of which Article 3 the of entitled to Maryland Inhabitants are part, the “[t]hat nevertheless, to the subject, ... England Law of Common of, of by, Legislature the repeal revision and amendment Rights, Decl. of Art. 3.5 this Md. State.” of common properly public order to examine the element therefore, En- explore we then must law of in which the offense glish common law extant Sir exposure constituted misdemeanor. William generally: Blackstone commented public of the are a breach and violation

[Misdemeanors duties, community, rights and whole considered owing ... All community, aggregate capacity as a its social ought merely according to be estimated crimes therefore and, of produce society: in civil they the mischiefs which vices, or the breach of mere consequence, private absolute duties, an perform only which man is bound to considered as be, individual, not, object any municipal cannot of are law; example, or other any farther than as their evil effects, and pernicious they may prejudice community, of species public Thus the vice thereby become crimes. alone, drunkenness, privately beyond if committed and of course the reach of human beyond knowledge in the of the publicly, if committed face tribunals: but Maryland provision was reconstituted Article 5 Declara- This 5. Rights tion world, its example temporal evil makes it liable to cen- .... only is, sures difference that both subject justice; vices are to the vengeance eternal vices are liable the temporal punish- besible of human ments tribunals. therefore,

Upon though whole part offenses to be enumerated in the following sheets are of the offense God, against the revealed law of against others law of nature, neither; and some are offenses against yet in a municipal treatise of we law must consider them all as deriving their particular guilt, here punishable, from law of man. caution,

Having premised this I proceed shall next to dis- first, ... tribute several offenses those which are more immediately injurious holy to God and his religion. mention, last which offense I shall immediately more and against religion morality, and cognizable by tempo- courts, is that of open and notorious ral lewdness: either by fame, houses of ill frequenting which is an of- indictable fense; or by some grossly public scandalous indecency, punishment for which is by fine and imprisonment. Blackstone, 4 William Commentaries England on the Laws of (6th 1775) (footnote omitted) 41-42, added). 64 (emphasis ed. Thus, the of exposure offense indecent necessitating open and lewdness, notorious was against an offense morality. Orth, Judge writing Chief E. Charles the Court of Appeals, had Special opportunity explore adopted State, Dill v. 695, elements 24 Md.App. (1975),6 332 690 A.2d which he iterated: At the common law of England, which the inhabitants of Maryland 5, were declared to be entitled Article Declara- tion of Rights, Constitution Maryland, State, (1980). 6. also Md.App. See Neal v. 413 A.2d 1386 ... are authorities a misdemeanor. The person of the was common law indecent at in substantial accord that and intentional the wilful exposure was presence in the public place in a parts body of one’s Thus, its main elements assembly. of an wilful performed, place in which was it. who saw presence persons indecent, crime, when defen- An becomes that, a time and dant at such exposes man, know his act will be he knows or should reasonable of others. open to the observation Messina, 693-94, 698-700, A.2d Md. quoting at at Id. omitted) (footnote omitted) (citations 606, 130 A.2d at 580 added).7 In in the quote referenced (emphasis footnote Assembly aspect of the one common the General codified exposure at Section 67A of Article entitled law offense of indecent Peace,” provided part: in relevant "Disturbance of the Public which disorderly by ... Any person wilfully ... act in a manner who shall wharf, person any indecently exposing his on or about steamboat room, grounds waiting station dock or or in about the steamboat, car, any any street in the or in or on railroad car, car, public conveyance train or other passenger electric railroad shall, thereof, fine of less upon ... conviction be sentenced to a fifty than five or more than dollars and costs. dollars Laws, expanded Chap. read 1902 Md. 281. In the statute was disorderly indecently exposing “wilfully by ... his or act in a manner Laws, any Chap. person public place ...” Md. or about her (1957, 27, § Repl.Vol.), Art. 122. The codified at Md.Code however, statutory repealed, replaced with in 1977 and offense 27, following sentencing provided Section 335A of Article which the exposure: provisions offense of for the indecent Every person expo- crime of indecent convicted of the common-law by guilty punished imprison- shall be sure is of a misdemeanor and $1,000, years than than or a fine of not more ment not more three or both. Laws, Chap. Md. 335A was recodified in 2002 Section changes of the Law without substantive Article, as Section 11-107 Criminal provides: and now person exposure guilty a is of misdemeanor A convicted imprisonment exceeding years or a subject is fine not $1,000 exceeding or both. after explanation the English common law crime was misdemeanor, a Judge Chief Orth referred to Rollin M. Per- kins’ discussion in his treatise on criminal law of Blackstone’s recognition of private versus dichotomy:

In other words indecency was exclusively under the jurisdiction of the ecclesiastical court but public indecency an And, extreme nature was view, indictable. the early person merely was one form of obscene exhibition.

Dill, 24 Md.App. at 699 n. 332 A.2d at 693 n. quoting Rollin (3rd M. Perkins & Boyce, Ronald M. Criminal Law 473 Ed.1982). exploration his of the common law offense of indecent

exposure, Chief Judge Orth relied upon our analysis Messi- na, Md. at 130 A.2d at wherein the defendant was himself, convicted for exposing while seated in parked car, to two year girls thirteen old busy street Balti- City. more He challenged his that, conviction on ground only because him, one of the girls actually saw there was no “public” exposure as required at common law. disagreed, We elucidating that occurs “public” it occurs “ ‘in such a manner that the act is seen or is likely seen by Id. at casual observers’.” 130 A.2d at 579-80. We explained that “public” element did not require that exposure be actually by seen than person more one if it “oecur[red] under such circumstances that it could be seen persons, number of if they were present and happened to look,” thus, likely “it to be seen number casual Id. at observers.” 605-6, added). A.2d 580 (emphasis Further, explained we must have been intentional, which “may be inferred from the conduct of the Laws, Chap. 2002 Md. 344, recognized 26. We in Harris v. 306 Md. 509 A.2d 120 that a common law offense is revitalized with repeal statutory Neal, offense approval and cited with 1387-88, Md.App. at 413 A.2d at Special which the Court of

Appeals determined that common law offense of indecent statutory resurrected in 1977 repealed. when the offense was occur- and environment the circumstances and accused Thus, Id. at 606,130 at 580. A.2d rence.” crime, indecent, [a] a and becomes [a]n that, as place time and himself at such a exposes defendant be his act will man, or should know he knows a reasonable of others. the observation open to ability on the depends Id. Therefore, elements “public” by others. be observed three forth the

Thus, clearly sets jurisprudence our made wil exposure: elements or acci an inadvertent opposed as intentionally, fully and have been observed, likely to one; or was which was dental opposed observed, persons, performed or more by one very their By others. from the view of secret, hidden entwined, and our inextricably nature, elements are the three into the enlightens inquiry our one element analysis of each his conviction Thus, challenges although Wisneski others. offense, he did not alleging that prong the one under conduct oc because his expose himself indecently “publicly” to the dwelling, we look of a the confines curred within in order of indecent of the offense two elements first inde “publicly” into whether Wisneski inquiry to inform our himself. cently exposed or inferred express, of intent can be

The element exposure. the environment from the circumstances place time and himself at such a exposes the defendant When that his or her or should know knows person a reasonable others, are not accidental acts act will be observed Messina, 606, 130 A.2d inferred. Md. may his intent “public” with a is infused intent element itself at 580. The wilfulness, accidental in the distinction between element Houten v. in Van N.J.L. explored as was interpreted Jersey of New Supreme Court case which in which law, the situation when faced with English common to the visible outside had urinated the defendant challenged the The defendant homes. residents of several element, the intent jury regarding to the charge following which court determined to be the correct statement of the law: testimony must show that the

[T]he was not accidental, merely and order to convict you the defendant satisfied, to ought from the that testimony, intentional, at such time and place, and such manner as against public to offend but decency; may intent be inferred from recklessness. It is not necessary that some witness testify should that the defendant had said that he intended act; to commit you can infer what he intended to do from actually what he did do. Thus, time,

Id. at 18-19. reckless exposure, determined by manner, place and can inform intent.

Conversely, when exposures does not occur at such time, and in place, manner, such a or that a defendant’s inferred, intention may be criminal sanctions have not been Commonwealth, In applied. Case v. 313 Ky. 231 S.W.2d (1950), exposed defendant standing while within doorway to garage repair of his auto shop, which faced home, lane, his on an unimproved without being any aware of vicinity, observers and without doing “anything to ... attract attention him.” to Id. at 87. The court concluded that there was insufficient evidence that the defendant had or “intentionally, wilfully designedly exposed his person,” but rather, reveals, far testimony as the it appears “[s]o anything may have done was unintentional and inadver tent,” and the conviction. reversed Id. at 87-88. Inadvertent may negate then intent.

In State v. Peery, Minn. 28 N.W.2d 851 defendant was with charged under a Minne- sota statute providing any person willfully who lewdly exposes body private their parts public place is guilty of a misdemeanor. The defendant had been by passers- observed occasions, by on several standing unclothed in his ground floor dormitory room front of a window. to refusing criminal- conduct, ize the defendant’s emphasized the court that he had not that, directed attention to himself explained in a public intent the act does occur establish where [t]o observed, it is certain to be some or otherwise where place presented. the act itself must be evidence further than motions, by evidence of Ordinarily, intent is established sounds, actions the accused designed or other signals, condition, display attract to his attention reasonably that it must be open in a so to be witnessed. presumed that it was intended is no evidence submitted Noting Id. at 854. that “[t]here or other- or called to these witnesses signaled defendant had himself,” the court endeavored to direct their attention wise heedless, have been careless or “may concluded that defendant intentionally expose himself.” Id. at but that he did not 141 N.H. 677 A.2d Bergen, 855. See also State (1996) common law offense of indecent (holding that “knowing” expo- “intentional” and exposure sought punish sures, exposure”).8 accidental or inadvertent “merely observation;

A the element of it “public” aspect also infuses “published” that defendant must have is obvious the a and that who exposure place anyone at such time it, happened nearby to have been could have seen had he Messina, 606, 130 at In v. looked. Md. at A.2d 580. State (1 Bat.) (1835), the court held that Roper, 18 N.C. Dev. & indecently an indictment that the defendant had charging sufficient, stating: himself within the view was public’s act, It to the of criminal necessary is not constitution the actually the exhibition should have been disgusting it by public; enough, seen the is the circumstances under probable which it was obtruded were such as to render it seen; a publicly thereby endangering that would be shock is, ignores quite possibly, 8. The dissent this essential element which gravamen suggests of indecent when it of crime that the exposure engaged couple through "slight- inadvertent of an undressed ly ajar" successfully prosecuted. Op. door could be at 921 A.2d at Further, dancer, paid hypothetical, by 292. in the an exotic other party perform, may guilty host at a not be of indecent intent, necessary because he would not have manifested the if he were assured, by person through payment holding his services by party, accepted that his behavior was casual observers. manifesting contempt for the laws feeling, to modest decency. of seen,

Id. at 209. Therefore, of in addition to probability being observation, actual was sufficient. Martin, State 125 Iowa 101 N.W. 637 of indecent under a

defendant also was convicted statute, that his challenged ground state which he victim, the court actually was not seen which persuasive, explaining: not find did this rule that one who uncovers his It does not follow from place of his or other privacy apartment, own person may that his act offend suppose where there is no reason others, is of a The words guilty of crime. sensibilities clearly the act is either in exposure” imply “indecent others, place or is in such a presence sight the actual the exhibition is liable to or under such circumstances others, for that presumably purpose, be seen made disregard reckless and criminal of the decencies or with inclined, may nothing life. A if so dress himself person, Eden, than the innocence of he provided more substantial “expose” does not that condition. The in such only indulges practices becomes “indecent” when he where, person, at a time and as a reasonable knows, know, open his act is to the observation ought others. Id. potential exposure to others because Again, publication. and time could constitute placement Commonwealth, In Noblett v. 194 Va. 72 S.E.2d challenged indecently the defendant his conviction for in sitting himself while a ear on the side of the street exposing him. The court upon only person based the fact that one saw law, conviction, common it mat- stating affirmed the that at conduct; only that one saw the defendant’s person tered not rather, whether, cir- factor the determinative under case, reasonably cumstances of the the defendant “could have seen, likely by persons using or was to have been seen been v. City Id. at See also Wicks 244, street.” 72 S.E.2d

597 (1974) Charlottesville, 274, 752, 754 215 Va. 208 S.E.2d of (holding in conformity that a statute must be construed with law, required exposure the common which that the indecent in a where it is person, place occur front of at least one v. likely person); King, to be seen at least one State 268 (1966) 567 that at common (stating N.C. S.E.2d actual observation require law indecent did public persons present members of the when who could Hamilton, act); Ky. have seen the v. Commonwealth (1931) conviction (vacating 36 S.W.2d 342-43 where place indictment failed to “that took charge under such circumstances the members it” might “exposure may have witnessed because the have it”). place public may taken where the not have observed The third final element the offense of indecent case, exposure, gravamen present relates to the location of the oftentimes to as the “public referred place” certainly element. There is no of case shortage law which the courts have held that this is met requirement when the conduct dwelling. Regina occurs outside of a See Thallman, (1863) LE. & CA. 326 conviction for (affirming indecent roof top defendant stood of a Martin, private himself); home N.W. (affirming conviction for exposure occurring on a Goldstein, public highway); 62 A. at 1007 (holding expo- sure occurred in a public place when defendant exposed store, his grocery place where “the Rocker, invited for the purpose trading”); State v. 52 Haw. (1970) P.2d (holding bathing individuals in the nude on a public beach had committed the offense of Wicks, exposure); (affirming 208 S.E.2d at 754 con- viction where defendant urinated walking while down the town). sidewalk case, however,

In the instant we are confronted with lewd conduct that occurred inside a dwelling, raising question whether such a can satisfy the “public” element of exposure. the offense of indecent When confronted with the same issue of whether criminalize an

598 of our sister dwelling, in courts exposure private a indecent some, of the loca- For the classification states have divided. as Wisneski asserts. Courts “private” dispositive, tion as statutes, Mexico, example, interpreting Indiana and New a exposure occurring private inside that an indecent have held Long See criminal subject penalties. was not to dwelling that, 1258, (holding (Ind.App.1996) N.E.2d 1261 666 not a public or club is private private “a residence although public place club was a because members-only strip place,” open and therefore it was only cost one dollar membership Romero, restraint); State v. 103 N.M. without (1985) (conviction exposure for indecent P.2d 103 710 where two children reversed “[i]t residence before private upon acts of defendant which undisputed that [wa]s of indecent the convictions state relied establish ... private confines of a residence [and] occurred within the public generally,” viewed subject being were not or accessible they “perpetrated were not meaning But see States v. United public”). to the general visible (“At Graham, (U.S.A.F.2002) onset, we 56 M.J. view, which we note that Romero minority represents however, we importantly, to follow. More generally decline logic.”). its unpersuaded are courts, concluded that an though, of state have majority The in private criminalized if it occurs exposure may indecent be common law offense or a interpreting dwelling, either nature of the “public” have held that statute.9 Some addressing aspect light of the locational 9. We have included cases element, "public” as adverse to those statutes that include a statutes element, Colorado such an such as those found in that do not include (2004), (Colorado requires § Statutes 18-7-302 Revised (Michigan Compiled any person”); Michigan Laws "in the view of (2004), "any persons making open inde- prohibiting § from 750.33 Washington (Washington Code exposure”); Revised cent exposure”). requiring only “open § also an and obscene 9A.88.010 equates "public” "public” common law to the element element at Commonwealth, Va.App. S.E.2d Moses v. statutes. See (indecent (2005) exposure statute "is a codification of the common Columbia, (D.C. law”); A.2d 725-26 Duvallon v. District 1986) ("[Tlhe exposure clause ... was a codification of the the defendant’s is met when of indecent offense window in front an unobstructed occurs at 166 321 N.E.2d dwelling. Legel, See inside of a himself in his own indecently exposed that defendant (holding table, under a dining room top of his by standing home neighboring view the fixture, clear night, light doors); State v. sliding glass unobstructed through home Odom, (upholding con- (La.Ct.App.1989) 554 So.2d his home standing for for inside obscenity of defendant viction to attract knocking window and on it exposed in front of an children); v. Commonwealth neighboring attention of the (1937) (affirming 296 Mass. 6 N.E.2d Bishop, in his exposing for himself indecently of defendant conviction window, home, through holding his by neighbor visible own “ it ‘an because was public place that element was satisfied to one or more exposure, of lewd offensive intentional act ”). persons’ can crimi- that the behavior be

Many also have determined from the exterior of the nalized even when is not visible 423, 299 Ga.App. v. example, home. For McGee (1983), to a woman exposed the defendant himself S.E.2d public for challenged his conviction apartment her it had not occurred ground on the indecent The court statutory required. as the offense “public place,” of the “ “public place,” purposes disagreed, explaining statutorily ‘any was defined as crime of indecent reasonably expected be may where the conduct involved place of the actor’s other than members by people to be viewed ” Thus, court or Id. at 575. determined family household.’ “public place” apartment that the victim’s constituted therein, that his con- knowing the defendant who not a would an individual was duct be observed Id. family of his or household. member King, exposure.”); State v. 285 N.C. law crime of indecent common 305, (1974) (" [North Carolina] ‘The 204 S.E.2d law simply of the common statute ... a codification ”). crime’ McGee, Greene, Building on the same court 381 S.E.2d at public another conviction for affirmed indecently exposed when the defendant himself to his chil- babysitter babysitter’s younger siblings dren’s and the two In holding and a friend in his own home. that Greene’s home offense, “public place” statutory satisfied the element of the explained court that: and con- Greene his own behavior removed the barrier from a zone to a verted his bedroom bath nudity might reasonably expected to be place, where than of his by people family viewed other members necessary household. It is not be visible are outside of it. members of the who Id. at 311. Whitaker, State

Iñ 164 Ariz. 793 P.2d 116 charged governing indecent exposure, defendant with for provided: statute which public indecency by intentionally commits sexual person

A acts, in if knowingly engaging any following or of the is is person present, another and the defendant reckless other as a person, person, about whether such reasonable by be offended or alarmed act. would Id. at 117 n. Ann. quoting Ariz.Rev.Stat. Section 13-403 daughters, his own two exposing for himself as well females, in as other undisclosed different locations two explained closely his home. The court that 13-403 throughout 13-402, Exposure, tracked the Arizona statute on Indecent which provided:

A or person exposes commits indecent she genitals nipple or her or anus or she the areola or exposes person present, of her breast or breasts and another is person, the defendant is reckless about whether such other person, by as a reasonable would be offended or alarmed the act.

Id. at 118 n. quoting Ariz.Rev.Stat. Ann. Section 13-402. defined the as Noting Legislature “public” crime exposure, explained the court that a “public” the actor place in where occurs a “a is one that another,” by to be viewed his conduct reasonably expect might in thus, can be committed proscriptions “the statute’s 319, 320, also 793 P.2d See Id. at one’s own home.” (Colo.1985) (affirming Randall, 711 P.2d People indecency where defendant public conviction of defendant a boy old while inside eleven-year to an exposed himself home). client’s of the courts majority by logic persuaded

areWe exposure within that an indecent our sister states Messina, the issue is explored As suffice. dwelling may was done the defendant’s behavior one of whether primarily observed: capable being or secret or observed one if public is a the offense is committed place where “[t]he number to be seen likely be such that is Id. at 130 A.2d at 579-80. of casual observers.” instant case that determined Special Appeals Court recognized “publicly” had in places other exposure element can be satisfied public to the open located outdoors or physically than those factors appellate upon court relied large. The intermediate in the case were members such as whether the observers they had consent- family, household or whether Wisneski’s states, especial- have some of our sister ed as Georgia. ly however, in an Messina defines jurisprudence,

Our likely if “the act it is seen or to be seen Messina, 605, 130 212 Md. at A.2d at 579- casual observers.” foreseen, or expected, planned.” as “not 80. Casual defined (8th ed.2004). something It is Dictionary Law Black’s Collegiate Merriam-Webster’s regularity. that occurs without (11th ed.2003). to a it is Dictionary respect person, 193 With who, best, Id. only superficially. at is known an individual in of indecent observer the context of the crime Casual then, acts is one who observes defendant’s exposure, Clearly, any the circumstances of case dictate unexpectedly. something expected, to be whether indecent foreseen, places public of licit planned: persons frequenting

602 bodies, nudity may expect to see naked while individuals not, visiting may home example.

Therefore, we believe that under a reasoned approach, be, and our upon jurisprudence, may based as limited as common of exposure requires law offense indecent wilfulness and one or more who not by observation casual observers did or foresee the expect, plan who were offended by it. This not “public” only incorporates definition reflects the historical antecedents from for criminal England offense, Blackstone, izing by enunciated Sir William conduct, prohibit unexpected offensive but it also compliments “public” exposure. nature of all the elements indecent Nevertheless, that, law, contends at common an exposure occurring dwelling inside of a must have passers-by satisfy been visible outside order Webb, offense, “public” element of the and cites 1 Den. at 338. Webb, barmaid, house, In while in a working observed expose standing. the defendant himself while between the Although entrance to the house and the entrance to the bar. anyone the location of the defendant’s was such that him, passing by could seen it was not established at trial have barmaid., him, seen other anyone had than the vacating the defendant’s conviction for indecent court held that the element of the crime had not been exposure only satisfied because the had been observed one Id. at 345. person. reasoning We did find this line Messina, however, persuasive because the number of per- sons witnessing dispositive, an indecent is not so long as it occurs a such a that is to be likely observed Messina, 605, 212 casual observer. Md. at 130 A.2d at 579-80.10 Karo, 705,

10. Wisneski also cites 468 U.S. at at S.Ct. Kyllo, L.Ed.2d at at S.Ct. U.S. support argument person’s L.Ed.2d at of his that a home "private,” "public,” place, constitutes a and not and therefore does not satisfy "public” exposure. element of the crime of Appellate rejected argument Legel, Court of Illinois a similar N.E.2d at stated: when it aof adopt this Court to the definition urges also Wisneski open to a being is for the time place” as one “that “public room,” private from a distinguished of as public, the portion in Byous, 175 Georgia Appeals Court of set forth the from common law. alleges derives the at which he S.E.2d of indecent the was convicted Byous, defendant home, visible to window inside of his front of a standing The defendant off the school bus. children getting that not in a on the he was challenged ground his conviction of himself. The definition place” when he “public however, court, derived the recited contends; law, the consti- common as definition from of the “public” of the element interpretation tuted the court’s at 107. The Id. statutory exposure. then offense of indecent “[tjaken definition, literally explain to that the court went on of that what one appellant ... supports the contention subjected ... be of his own home cannot privacy does Nevertheless, at court public scrutiny.” Id. 108. that, conviction, reasoning affirmed the defendant’s of his deliberately disregards protection if the defendant to make and makes of their windows instead such walls use of deprive act and not that the State public, conduct own him. protection him of the that otherwise surrounds Thus, the fact Byous at court relied upon Id. persons was visible to outside the defendant’s conduct Defendant maintains that his home is his castle and therefore private. are This is a non- activities within confines his walls sequitur. person’s protected by law It is true home is from by trespassers, intrusion but activities within the confines one’s protected only home to the extent that the individual seeks to are knowingly preserve private. person exposes his activities as “What a office, subject public, to the even his own home or is not States, (Katz protection.’’ Fourth Amendment v. United U.S. (1967).) S.Ct. 19 L.Ed.2d Such is the related, facts, present clearly defendant case. The show that made attempt preserve private. no his activities as A reasonable man in position expect his conduct to be viewed defendant would by others.... us, added). Likewise, (emphasis in the case before Wisneski Id. intentionally keep made no effort his actions genitalia exhibited his to others. house its deriving conclusion that element of the statutory offense had been met. Since the time of holding this in Byous, however, “public the term place” has been statutori- ly defined to mean “any place where the conduct involved may reasonably expected to be by viewed people other than household,” McGee, members of the actor’s family 575, which, S.E.2d at as by Georgia demonstrated Courts’ Greene, holdings McGee is akin to our definition of the “public” element of the offense of exposure indecent in that factor determining conduct, is not the actual locale of the but observation, rather the circumstances of the as iterated in Messina’s “public” definition of anywhere that a reasonable man knows or should know that his act will be open to the observation of others. 212 Md. at 130 A.2d at 579. We hold that the evidence was sufficient in the case judice sub find, for the trier of fact to beyond a reasonable doubt, that Wisneski’s conduct satisfied all three elements of exposure. offense indecent Testimony at trial estab lished that he was standing to proximity persons three at himself, the time that he exposed and that he repeatedly shook his genitalia them, at one of while adamantly and repeatedly asking her she was “on period.” her Wisneski’s indecent was wilful and subject deliberate and actual by observation two of the people, one who became enraged while the other turned away. Both reactions reflect the two of them were casual observers to Wisneski’s it, exhibition and were offended thereby establishing that Wisneski “publicly” indecently exposed himself.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.

BELL, GREENE, C.J. and J. dissent. GREENE,

Dissenting Opinion by J., BELL, C.J., which Joins. I

Respectfully, dissent. The majority concludes that the evidence was sufficient in judice the case sub for the trier of fact to convict Petitioner of of indecent common law crime three elements all public, and an actual expose, exposure—intent be, by others. is, likely observed or is an 288-89); 603-04, see 921 A.2d at Messina (Maj. op. at (1957). I agree-with 130 A.2d 212 Md. was willful expose intent to that Petitioner’s majority exposure was other and that his observed and deliberate however, exposure to I that Petitioner’s disagree, individuals. residence constitutes located inside individuals the common law offense under “public” exposure exposure. forth, exposure in the crime of majority

As the sets originally derived from the Maryland is a common law offense 280). 589-90, op. A.2d at (Maj. Common law. English that indecent Blackstone explained Sir William “open against religion morality requires crime of Eng- on the Laws notorious lewdness.” Commentaries (6th 1775). 1897, In Lewis Hochheimer stated land ed. person” of consists of: the crime of “Indecent that parts or of [Ejxposure person, of entire An public.[ properly ] cannot be exhibited “public in a if it occurs under “public,” place,” to be said that it probable, circumstances as to render it would such being number of immaterial it was persons, seen by any not seen actually one.[ ] Hochheimer, Law Proce- Lewis The Crimes and Criminal (1897). dure leading 212 Md. 130 A.2d is the

Messina Messina, year-old girls case on this issue. two thirteen one walking along Parkway Northern Baltimore when Messina, in his girls sitting noticed Messina car. one of According girls, Md. at 130 A.2d at 579. gave exposed look and then himself. The funny Messina her argued him He charged exposure. State with indecent him, only girl public. because one saw stated that: We

The place where the offense is committed is a public one the exposure be such that it is likely to be seen a number of casual observers.

An exposure is “public,” or in a “public place,” if it occurs under such circumstances that it could be seen aby number persons, if they were present happened to look.

[*] ^{[*] [*] [*] [*] [*]} An exposure indecent, crime, becomes and a when defen- exposes dant himself at such that, a time and place as a man, reasonable he knows or should know his act will be open to the observation of others.

Messina, 605-06, (citations Md. at 130 A.2d at 579-80 omitted). thenWe determined that because Messina “could have been seen by anyone who happened to walk or drive by busy street where it was taking place[,] [u]nder those circumstances, it amounted to an offense against public decen Messina, cy.” 606, 130 212 Md. at A.2d at 580.

The majority bases its holding, large part, upon this language Messina. It also plain examined the meaning “casual,” the term and found it to mean “not expected, fore- seen, or planned.” (Maj. 287) op. at 921 A.2d at (citing (8th ed.2004)). Black’s Law Dictionary 231 The majority “[cjasual concludes that a observer in the context of the crime of indecent exposure, then, is one who observes the defen- dant’s acts unexpectedly.” (Maj. 287). op. at 921 A.2d at holds, majority therefore, that because the visitors of the home which himself did not expect to see Wisneski’s genitalia, they were casual observers and the home became a public place. I disagree with this interpretation of phrase, “casual observer” and with such expansion an law; the common we have never private considered a home to a public place in the context of indecent exposure and such an extension of the concept is not warranted here. Messina,

Based on our in reasoning a casual observer is an individual happens who upon a in defendant f midst o his or her such that the confrontation with that foreseen, like the planned,” “not or expected, individual by to happened walk involving teenager who situation in have himself his car. We exposing while he was Messina is an individual with concluded that a casual observer never private has an afternoon inside a dwell- person spent whom a manner. unexpected to act in an happens who then ing teen- convicted of indecent because a Messina was himself on a street and we stated ager expose busy saw him “could public Messina that the was because explicitly or drive happened who walk by anyone have been seen [ujnder those place[,] it taking street busy where circumstances, against public decen- it to an offense amounted Messina, (emphasis 130 A.2d at 580 cy.” Md. of Messina out of added). takes the majority language The so, beyond its and, in common law doing expands the context Messina dealt who solely with man intended boundaries. busy, Baltimore. himself on a street exposed draws from the dicta Messina applies majority inside a home. private occurred events view, present were my other individuals who not casual observers private parts his exposed dwelling not private inside the did and Wisneski’s public place. home into a He did convert the private than any himself to individuals other those inside expose “casual,” home. Based on Messina and the definition of listed have who happened a casual observer would to be one supra, no or see There was evidence walk drive and Wisneski. large in front of a exposed that Wisneski himself window Be- open exposure. door so that would see passers-by of a exposed living private himself room cause Wisneski no home, guests, there were only which there were invited the exposure who have seen of his observers could casual circumstances, home parts. private these Under not constitute a which Wisneski does with the common law offense place consistent exposure.

608 addition,

In the majority notes that the courts of our sister states are divided the issue of exposure whether private dwelling can the satisfy “public” element that majority but the of states that hold exposure may private criminalized dwellings. Essential- ly, all of cases upon which the majority relies as support conclusion, however, its distinguishable are from the case sub judice. majority While cases cites support conviction place, for indecent in a private almost all of those cases are upon based common offense as law cases, therefore, modified statute. The courts in those interpreted the language applicable statutes and ana- . lyzed the statutory defendants’ behavior under relevant See, provisions. Whitaker, v. e.g., 359, State Ariz. 164 793 (1990); State, P.2d 116 149, Greene v. 191 Ga.App. 381 S.E.2d (1989); Randall, People v. 711 P.2d 689 (Colo.1985); State Odom, v. (La.App.1989); 554 So.2d 1281 McGee v. Ga.App. 423, (1983); 299 S.E.2d 573 People Legel, 24 (1974). Ill.App.3d above, N.E.2d 164 explained As the crime of indecent is a common law offense Maryland, is one that neither the Assembly General nor this today. Court has modified1 until

As to that have a states found home to be a solely on based the common law crime of indecent exposure, similarly,. those cases are distinguishable from the present example, case well. For in Commonwealth v. Bishop, 296 Mass. 6 N.E.2d the court the conviction of a indecently defendant for exposing affirmed himself in his own home. The court determined that public place case, element of the crime was satisfied. however, defendant not expose did himself to someone who Instead, was within the his private dwelling. confines of a room that was visible from his majority explained, 1. As Assembly codify aspect the General did one law common offense of indecent The General however, Assembly repealed provision, in 1977 and therefore revitalized the crime of indecent as a common law offense. 7). (Maj. op. at n. n. A.2d at neighbor having his the intention window with neighbor’s attention, he neighbor’s “flash[ed] To get him. see neighbor’s form on the rays light that caused mirror” Bishop distinguishable Bishop, 6 N.E.2d at 369. walls. eliminated the Bishop Mr. judice sub case because from the exposing by intentionally dwelling of from his privacy essence to outside of individuals in a manner that was visible himself judice, In the case sub Petitioner private the residence. the house and inside only to individuals those himself to those on any expose intent to not demonstrate did and up deliberately not a did walk to window the outside. He individuals, passers-by, of any that number attract attention so Thus, him. Petitioner would see “casual observers” or other from to private of the change not the character did public. slope. Holding slippery creates a majority’s holding

The public place a and a a home can constitute expecting not to see simply one who was casual observer is beyond law its expands the common what he she saw gen- is a bounds; especially since intended addition, majori- concern is the my crime. eral intent courts, require applying the holding this case will ty’s upon to draw distinctions based exposure, of indecent law home, effect, creating public zones areas of the different trap will create a for Surely, this private dwelling. within a if a holds a bachelorette unwary. For woman example, perform, to and an exotic dancer pays at her home party a would aware that dancer be guests one of but behavior, by the male dancer’s and is offended performing exposure and the guilty of indecent then the dancer would offensive, more complicit in that crime. Even host would be in their with the man fiancé are undressed bedroom and of walks and ajar, occupant and friend either slightly door nude, occupants nude of that observes individuals to exposure pursuant guilty room would be definition a “casual observer.” majority’s ability study modify has Assembly The General and, crime of indecent the common law as 610 so, can

doing expand concept just place, jurisdictions throughout See, other country this have done. Whitaker, v. 164 e.g., (1990); State Ariz. 793 P.2d 116 State, v. Ga.App. (1989); Greene 381 310 S.E.2d Randall, (Colo.1985); Odom, v. People 711 P.2d 689 v. State 554 So.2d 1281 v. (La.App.1989); McGee Ga.App. (1983); 299 S.E.2d People Legel, Ill.App.3d 554, (1974). circumstances, N.E.2d Under those the Gen- Assembly spoken eral would have expanded the common law to embrace the conduct of this case. Until it so, however, are does we bound the common law. Of course, this ability Court has the common expand the law so, but, is good where there reason to do with consistent underlying purpose of the law. underlying purpose crime of indecent was to proscribe indecency acts immorality that occurred in a place. To the contrary, the common law was not designed proscribe immoral acts that occurred a private inside residence. intentionally exposed genitalia

Wisneski to others while inside a private residence. He did not expose himself to anyone Therefore, outside the residence. his actions did change the character of the location. The residence a private place though remained even private others saw his parts, or did not see his parts but could have seen they Accordingly, them had looked. no disagree- there is majority’s ment with the conclusion that Wisneski’s conduct was both lewd and intentional. It has been said that “an prevention pound Thus, ounce is worth a of cure.” home- owners would be better advised to become more selective as to persons homes, those choose to invite into they their than Court this the common expand law to make lewd behavior, such herein, as that demonstrated crime. Judge

Chief BELL joins authorizes me state that he views dissent. expressed this

Case Details

Case Name: Wisneski v. State

Court Name: Court of Appeals of Maryland

Date Published: Apr 18, 2007

Citation: 921 A.2d 273

Docket Number: 76, Sept. Term, 2006

Court Abbreviation: Md.