Wisneski was convicted in the Circuit Court for Montgomery County for indecent exposure. While a guest in a private home, Wisneski suddenly exposed his genitalia to three other people, not family members, who were offended by that conduct. There was no evidence whether anyone outside the home did see or could have seen Wisneski. Wisneski raised the following question on appeal:
Does the "public place" element of the common law offense of indecent exposure require exposure in a public place, or is a non-consensual exposure by an invited guest inside a private home to three people who are not members of his family or his household and where the exposure is not visible outside of the private home to casual observers, sufficient to constitute the crime?
The three elements of the common law offense of indecent exposure requires (1) a public exposure, (2) made wilfully and intentionally, as opposed to inadvertent or accidental, which (3) was observed, or was likely to have been observed, by one or more persons, as opposed to performed in secret or hidden from the view of others.
Wisneski exposed himself in the home of a third party, in daylight, while in a room that had a big window pane. Although there was insufficient evidence for the jury to determine whether Wisneski was visible to passers-by outside the window, his conduct still amounted to indecent exposure because, as a guest in a private home, he had exposed himself intentionally, as opposed to inadvertently, to three persons who were not members of his family or household, without their permission or consent, in an area of the house not regarded as private, such as a bathroom. The public element does not require the exposure be actually seen by more than one person if it occured under such circumstances that it could be seen by a number of persons, if they happened to look and thus, it was likely to be seen by a number of casual observers. The element of intent can be express or inferred from the circumstances and the environment of the exposure. When a defendant exposes himself at such a time and place that a reasonable person knows or should know that his or her act will be observed by others, his or her acts are not accidental and the intent may be inferred.
The majority of state courts have concluded that an indecent exposure may be criminalized if it occurs in a private dwelling. Some have held that the public nature of the offense of indecent exposure is met when the defendant's indecent exposure occurs in front of an unobstructed window inside of a private dwelling. Many have also determined that the behavior can be criminalized even when it is not visible from the exterior of the home. This Court reasoned that the issue is primarily one of whether the defendant's behavior was done in secret or in a place observed or capable of being observed: "[t]he place where the offense is committed is a public one if the exposure be such that it is likely to be seen by a number of casual observers." A casual observer in this context is one who observes the defendant's acts unexpectedly. Therefore, under a reasoned approach, the common law offense of indecent exposure requires wilfulness and observation by one or more casual observers who did not expect, plan or foresee the exposure and who were offended by it.
Testimony at Wisneski's trial established that he was standing in proximity to three persons at the time he exposed himself, and that he repeatedly shook his genitalia at one of them, while adamantly and repeatedly asking her if she was "on her period." Judgment Affirmed.
The full opinion is available in PDF.
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