Wisneski v. State

HOLLANDER, Judge. In this appeal, we must determine, inter alia, whether the common law crime of indecent exposure encompasses intentional conduct that occurs within a private home of a third ⁵²⁹ party. A jury in the Circuit Court for Montgomery County convicted Gerald Wisneski, appellant, of indecent exposure; illegal possession of a regulated firearm by a person previously convicted of a crime of violence; illegal possession of a regulated firearm by a person previously convicted of a disqualifying crime; and wearing, carrying, or transporting a handgun. Thereafter, the court imposed a mandatory sentence of five years for the first firearm count, merged the other handgun convictions, and imposed a consecutive six-month sentence for the crime of indecent exposure.

On appeal, Wisneski asks: 1. As a matter of law, can a private residence being used by the owner to entertain three personal friends constitute a “public place” under the common law crime of indecent exposure? 2. Did the trial court abuse its discretion by permitting the State to reopen its case and introduce additional evidence where the prosecutor did not show due diligence? For the reasons set forth below, we shall affirm.

FACTUAL SUMMARY The indictment charged appellant, in part: The Grand Jurors of the State of Maryland, for the body of Montgomery County, upon their oaths and affirmations, present that GERALD EUGENE WISNESKI, on or about July 1, 2004, in Montgomery County, Maryland, did indecently expose his person a public place [sic], in violation of the Common Law against the peace, government, and dignity of the State. (Emphasis added). The trial began on March 1, 2005. The following evidence was adduced.

On July 1, 2004, appellant visited his friend, Bridgette Penfield, at her trailer home, located in a “trailer park” in Germantown in Montgomery County. At around 7 P.M. on that date, Ms. Penfield’s neighbors, fifteen-year-old Jennifer ⁵³⁰ James and her older brother, Brandon James, also arrived to visit Ms. Penfield. 1 Ms. James testified that, when she and her brother entered the trailer, Mr. Wisneski was “sitting on the ... big couch facing like the big window pane,” and he “was drinking beer.” According to Ms. James, Wisneski “just started talking sexual stuff’ to her, and he asked her if she was “on [her] period----” Shortly thereafter, appellant stood up and “pulled out his penis” and his testicles from his shorts. Then, while appellant was holding his penis and his testicles in his hand, he shook them at Ms. James. She recalled: “I turned my head real fast.” According to Ms. James, her brother “just started going off’ and “tried to fight” appellant, but Ms. Penfield “got in the middle of it and then tried to stop it.... ” Ms. James recalled that appellant then put his genitals back in his shorts.

However, he placed his hands over “his private part and started shaking it.” Ms. James claimed that Wisneski then left the trailer and went home to retrieve a gun; he returned a few minutes later. According to Ms. James, she saw “the outline” of a gun on appellant. Ms. James went home, told her mother appellant had a gun, and her mother “called the cops.” Mr. James essentially offered a similar account of the events. He testified that he went to Ms. Penfield’s trailer earlier that day, at about noon, without his sister.

At the time, appellant was “[s]itting in the chair beside the window,” 2 and he and Ms. Penfield were drinking beer. Mr. James left at around 2:00 P.M., but returned later that day with his sister. At that time, Wisneski asked Ms. James if she was “on ⁵³¹ her period,” and Mr. James watched as Wisneski “dropped” his “pants completely” and shook his “uncovered” penis at his sister. Mr. James began “flipping out” and “screaming” at Wisneski.

Ms. Penfield came between them to prevent a fight. Two police officers also testified. They explained that they responded to the area based on a call to the police concerning a man with a gun. Upon locating Wisneski, they took him into custody and, in a search of his shopping bag, incident to his arrest, the police discovered a handgun with “two live rounds ....,” i.e., two .22-caliber bullets inside the weapon.

During the State’s case-in-chief, the prosecutor failed to introduce a stipulation that had been reached before the trial began. In particular, the parties had agreed to stipulate that Wisneski had previously been convicted of a crime of violence and a disqualifying crime. The following pre-trial exchange is pertinent: [PROSECUTOR]: Your Honor, with regard to this charging document, Mr. Wisneski is charged under the Public Safety Article for two different counts under Section 133. The indictment if you read the language reflects that one of those counts is the B count, which is possession of a regulated firearm, having been convicted of a crime of violence.

The second, which is count two, is cited as 133B again, which is possessing a firearm having been convicted of a disqualifying crime. I spoke with [defense counsel] and it is my understanding that there will be a stipulation that in fact Mr. Wisneski has been convicted of both a disqualifying crime and a crime of violence. [DEFENSE COUNSEL]: We’re out of the presence of a jury. I’ll stipulate that he’s been convicted of second degree assault and wearing and carrying a handgun I believe. [THE COURT]: All right, so the stipulation is that the crime of violence in question is a second degree assault. ⁵³² [THE COURT]: Okay. All right, so let’s just review.

Count 1 is 5-133(c) which is possession of a handgun by a person convicted of a crime of violence. Count 2 is 5-133(b) possession of regulated firearm by someone who’s been convicted of a disqualifying crime. The disqualifying crime being the prior handgun charge. Are we all in agreement? [DEFENSE COUNSEL]: That’s correct, Your Honor.

After the State rested, the defense moved for judgment of acquittal, which the court denied. The defense then rested without calling any witnesses, and renewed its motion for judgment of acquittal. As to the charge of indecent exposure, the defense argued: I don’t recollect there being any testimony about him exposing himself in a public place. Now I know that there are and I don’t recollect there being any testimony about people on the outside of the trailer being able to see in wherever he was situated when he allegedly did that in the trailer.

And therefore I would suggest to the court, first of all, this is a private residence. There’s no testimony about what people passing by or outside of the trailer might have seen if they had been looking. There’s no testimony that there were windows or doors with glass in them or that you could see out of the [trailer]. I would submit to the court that it was not a public place, nor was it a place which could be viewed by the public had they been looking and therefore with regard to that charge I would ask the court to dismiss it at this time.

The court denied the motion as to the charge of indecent exposure. It reasoned that the “public place” element of the crime of indecent exposure is satisfied “if it occurs under circumstances where it could be seen by other people if they happen to look____” Because the State failed to introduce the stipulation that appellant had prior convictions that disqualified him from possessing a firearm, appellant also moved for judgment of acquittal in regard to the two charges involving illegal posses ⁵³³ sion of a regulated firearm. The following exchange is relevant: [DEFENSE COUNSEL]: [A]t this point in time, Your Honor, I don’t believe stipulations are in evidence. Therefore, I believe that the evidence with regard to count one and count two are lacking because they’re not in evidence.

We certainly discussed them and I certainly indicate[d] that I would stipulate but I don’t believe that they’ve been placed in evidence by any stipulation before the jury for the jury to have. We certainly did discuss them with the court but I believe those things must be moved into evidence in front of the jury and the jury must be told at some point in time before the case concludes. Therefore, I would suggest to the court that these matters are not in evidence. The case has concluded.

I suggest to the court with regard to counts one and two, there’s no evidence that the jury has and with the case being concluded, that my client has been convicted of a crime of violence or has been convicted of a disqualifying crime. [PROSECUTOR]: Your Honor, this whole matter proceeded, as you are well aware, from yesterday morning on the idea that there was a stipulation in place or in effect. I don’t, at this point I think it’s, I don’t think it’s fair— [THE COURT]: What you’re saying is if it’s necessary to move to reopen your case to place the stipulations on the record in front of the jury, you’re asking to do that. [PROSECUTOR]: I would, if the court is inclined to do that I would be asking the court to do that if the court believes it’s necessary. I was under the impression that that stipulation was already on the record. [THE COURT]: It is on the record. It’s not on the record in front of the jury yet. [PROSECUTOR]: All right, Your Honor. [THE COURT]: Do you object to reopening the case? [DEFENSE COUNSEL]: Yes, Your Honor, I do. [THE COURT]: Okay, well I’m going to allow him to do it. ⁵³⁴ [DEFENSE COUNSEL]: [T]he court has indicated that it ■will allow the State, over my objection and I do note my objection, the State to reopen this case to put before the jury the stipulation.

There is a sheet entitled stipulation of facts here which I understand the court is then going to read as part of this instruction to the jury. [THE COURT]: What I was actually going to do was just read it to them when they come back as part of the evidence in the case and not repeat it again as part of the instructions. [DEFENSE COUNSEL]: Okay, that was my concern that this part was being emphasized unduly by reading it twice. [THE COURT]: I agree. Accordingly, before instructing the jury as to the law, the court read the following stipulation to the jury: The State and the Defense have agreed that the defendant was convicted of a disqualifying crime on September 10, 1996 and a crime of violence on February 5, 2002. These facts are not in dispute and should be considered proven. That’s of some significance when we get to instructions on the law as to the specific offenses in this case.

Thereafter, in relevant part, the court instructed the jury: One of the other crimes charged is illegal possession of a regulated firearm. In order to convict the defendant, the State must prove first, that the defendant possessed a regulated firearm and secondly that the defendant had previously been convicted of a disqualifying crime. Remember, I told you that term disqualifying crime was something we talked about earlier on stipulations. The State and the Defense have agreed that the defendant was convicted of a disqualifying crime on September 10,1996 and that fact is not in dispute.

Separate charge. Illegal possession of a regulated firearm and in order to convict the defendant the State must prove that he possessed a regulated firearm and that he had ⁵³⁵ previously been convicted of a crime of violence. A handgun, whether loaded or unloaded, is a regulated firearm---- * * * In order to convict the defendant of indecent exposure you must find beyond a reasonable doubt that the defendant intentionally exposed his penis or other body part that should not be exhibited in a public place. Indecent exposure, to amount to a crime, must have been done intentionally.

Intent may be inferred from the conduct of the accused and the circumstances and the environment of the occurrence. An exposure becomes indecent ... when [a] defendant exposes himself at such a time and place that, as a reasonable man, he knows or should know his act will be open to the observation of others. An exposure is public or in a public place if it occurs under such circumstances that it could be seen by a number of persons if they were present and happen to look. It is immaterial that the exposure is seen by only one person if it occurs at a place open or exposed to the view of the public and where anyone who happened to have been nearby could have seen had he looked.

In order to convict the defendant of indecent exposure the State must prove that the defendant exposed his penis, that he acted wilfully in doing so, that he was in a public place and that he was in the presence of another person or other persons who saw it. No exceptions were taken to the jury instructions. 3 In closing argument, the prosecutor acknowledged that the State had to prove that appellant exposed himself in a “public place.” The prosecutor argued, in part: ⁵³⁶ This occurred in a trailer home. There were at least three other people there present. Two of those people testified that they saw it.

Ladies and gentlemen, this is a public place. There were people there. He knew they were there. It was done in a public place....

The defense countered: This was the home of Ms. Penfield, a witness that we did not have the opportunity to see. This is her home by all the testimony. It is a trailer but that does not diminish the fact that it’s her home. It’s not a public place.

There is no evidence at all that someone walking by could see anything. There’s no evidence—I don’t know whether there was windows with curtains or not. I don’t know that there were windows for that matter [from] this testimony, but we can assume there’s windows. We can assume the person had curtains in the windows.

I don’t know if they were curtains that open and close. I don’t know whether anybody did see in or out of the trailer. That testimony is not before you. In rebuttal, the State did not address the defense’s contention that the State failed to prove the “public place” element of the indecent exposure charge.

Rather, it responded only to the defense’s argument concerning the gun charges. DISCUSSION I. Appellant contends that in Maryland the offense of indecent exposure can only occur in a “public place.” Because the exposure took place in the “confines of Bridgette Penfield’s private home,” asserts appellant, the element of a “public place” was not met. Therefore, he maintains that the “court erred, as a matter of law, in finding that a private residence being used by the owner to entertain three personal friends constituted a ‘public place’ under the common law crime of indecent exposure.” He adds: “Maryland case law, common usage, and the Fourth Amendment distinction between public ⁵³⁷ and private places confirm that the private residence at issue in this case, was not, as a matter of law, a public place.” Although appellant acknowledges that “[t]he term public place ‘depends on the circumstances of the case,’” he avers that “generally [it has] been held to include only those places where exposure ‘is likely to be seen by a number of casual observers.’ Messina v. State, 212 Md. 602, 605 , 130 A.2d 578 (1957) (emphasis added)____” While Wisneski recognizes that the State can criminalize conduct that occurs in a private home, he asserts: “[I]n such cases, there is no public place element because it is the prohibited conduct, in and of itself, that the State seeks to punish. In contrast, the common law offense of indecent exposure does not seek to criminalize exposure alone.

Rather, it is the public nature of the exposure that makes it indecent, hence the requirement that it occur in public view.” (Emphasis in original). In his view, the court’s determination that Ms. Penfield’s private home is “within the scope of the term ‘public place’ ” is “inconsistent with the common usage of that term, the case law of this State, and the Supreme Court’s long-standing distinction between public and private realms.” According to appellant, the State “mischaracterizes the definition of public place by implying that any exposure observed by one or more people is criminally indecent.” (Underline in original). He observes that “no Maryland appellate decisions have ever upheld a conviction for indecent exposure where, as in this case, the conduct occurred within the four walls of a private residence and was not observed by outsiders or casual observes.” Therefore, he urges this Court to reject the State’s claim that “the private residence at issue in this case satisfied the public place element of the crime of indecent exposure____” According to the State, the evidence was sufficient to support Wisneski’s conviction for indecent exposure. In its view, “the common law definition of ‘public place’ is not confined for purposes of indecent exposure to areas where the public has a legal right to be.” Instead, says the State, “a public place is ⁵³⁸ where an actor might reasonably expect his conduct to be viewed by another.” The State points out that, while appellant was a visitor in someone else’s home, he was “positioned across from ‘the big window pane’ in the living room____” and, in the presence of three other people, he “intentionally exposed his genitals” to them.

Based on these facts, the State argues: Under these circumstances, Wisneski was not engaging in private behavior on private property, but was purposefully and indecently exposing himself to the minor as well as others in the living room, and, presumably, anyone who happened to look through the window from the street. Wisneski’s conduct is not protected by the fact that it occurred at a private home. Regardless whether Wisneski’s conduct occurred on public or private property, his acts offended public decency, and was, in either venue, offensive to those who might see him. With regard to appellant’s Fourth Amendment argument, the State maintains that “Wisneski’s discussion of the protections that the Fourth Amendment extends to private residences misses the mark.” Indeed, it asserts: ‘Wisneski’s assertion that the common law crime of indecent exposure categorically excludes exposures occurring in private homes is ■wrong....” In his reply brief, appellant maintains that the State “misses the point.” He explains: The suggestion is not that Gerald Wisneski’s conduct was protected by the Fourth Amendment.

Rather, the Fourth Amendment’s long-standing recognition of a difference between public and private space is further evidence that the similar distinction made under Maryland law is a rational one that should not lightly be rejected. Where [the State] asks this Court to expand the common law definition of “public,” to include a private home being used to entertain three friends, he clearly ignores this important decision. In 1902, the Legislature codified the common law crime of indecent exposure in § 122 of Article 27 of the Md.Code, ⁵³⁹ which classified the offense as a “Disturbance of the Public Peace,” under the subtitle of the same name. Dill v. State, 24 Md.App. 695, 700-01 , 332 A.2d 690 (1975); see Neal v. State, 45 Md.App. 549, 550 , 413 A.2d 1386 , cert. denied, 288 Md. 740 (1980).

The statute criminalized conduct in which an individual “indecently expos[ed] his person on or about any steamboat wharf, dock or public waiting room, or in or about the station grounds of any railroad in the State, or in or on any steamboat, streetcar, electric car, railroad car, passenger train or other public conveyance.” Id. at 701, 332 A.2d 690 . Sixty-five years later, in 1967, the General Assembly amended the statute to add a “catch-all” to the public locations enumerated in the 1902 language. 4 Specifically, the Legislature proscribed indecent exposure “on or about any public place.” Id. According to the Dill Court, the addition of that phrase “brought the statutory crime squarely in line with the common law offense,” because each “had the identical essential elements....” Id. at 705 , 332 A.2d 690 . The Court added: “[TJhere is no distinction between the substantive offense of indecent exposure under the common law and the statute.” Id.

Consequently, said the Dill Court, the 1967 enactment “supplanted” the common law. Id. Then, three years after Dill , the Legislature amended the language in the statute to exclude the text precisely describing the crime of indecent exposure. Instead, it retained only the sentencing provisions for the offense, found in Art. 27, § 335A.

Neal, 45 Md.App. at 550-51 , 413 A.2d 1386 . The effect of that amendment was to revive the common law offense. Id. at 551 , 413 A.2d 1386 . The Maryland appellate courts have reviewed public exposure convictions in only a handful of reported opinions.

According to appellant, on each occasion the appellate courts ⁵⁴⁰ have been “faithful to the common law understanding of the crime and its public place elements.” Writing for this Court in Dill, 24 Md.App. at 699-700 , 332 A.2d 690 , Judge Orth articulated the elements of the offense: The authorities ... are in substantial accord that at the common law indecent exposure was the wilful and intentional exposure of the private parts of one’s body in a public place in the presence of an assembly. Thus, its main elements were the wilful exposure, the public place in which it was performed, and the presence of persons who saw it. (Emphasis added). We focus here on the element of a “public place.” In Messina v. State, 212 Md. 602 , 130 A.2d 578 (1957), the Court of Appeals discussed the element of a “public place” for purposes of the common law offense of indecent exposure.

Messina was convicted of indecent exposure based on evidence that he exposed himself to two teenaged girls while sitting in a car parked along a Baltimore City street. Id. at 604 , 130 A.2d 578 . Although both girls were walking on the sidewalk, only one of them actually saw the exposure. Id.

On appeal, Messina argued “that since only one person saw the indecency there was not such a public exposure, such an affront to public decency, as the common law requires to make the conduct a crime.” Id. at 605 , 130 A.2d 578 . The Court of Appeals disagreed, stating: “The law is not as the appellant suggests.” Id. In upholding the conviction, the Court emphasized that what constitutes a “public place” depends on the circumstances of the particular case. Quoting 67 C.J.S. Obscenity § 5 (1955), the Court stated: “Indecent exposure in a public place in such a manner that the act is seen or is likely to be seen by casual observers is an offense at common law____ Ordinarily, ... the place where the exposure is made must be public.

What constitutes a public place within the meaning of this offense depends on the circumstances of the case. The place where the offense is committed is a public one if the exposure be ⁵⁴¹ such that it is likely to be seen by a number of casual observers....” Messina, 212 Md. at 605 , 130 A.2d 578 (emphasis added; omissions in original). The Court continued: “ ‘An exposure is “public,” or in a “public place,” if it occurs under such circumstances that it could be seen by a number of persons, if they were present and happened to look.’ ” Id. at 606 , 130 A.2d 578 (quoting Hochheimer on Crime and Criminal Procedure, at 430 (2d. ed. 1904)). 5 The Dill Court subsequently reiterated what was expressed in Messina. See Dill, 24 Md.App. at 699-700 , 332 A.2d 690 .

Unlike Maryland, many jurisdictions have enacted statutes that cover the issue presented here. See generally, David C. Minneman, Annotation, “What Constitutes ‘Public Place’ Within Meaning of State Statute or Local Ordinance Prohibiting Indecency or Commission of Sexual Act in Public Place,” 95 A.L.R. 5th 229 (2006). Although many of the decisions from other jurisdictions are based on statutes that are not necessarily coterminous with this State’s common law definition of the crime of indecent exposure, these decisions help to elucidate the element of “public place.” We pause to review some of these cases. In Greene v. State, 191 Ga.App. 149 , 381 S.E.2d 310 (1989), cert. denied (May 4, 1989), the defendant was convicted of public indecency after he appeared nude in the presence of a teenage female babysitter in the bedroom and bathroom of his own home.

Id. at 310. On appeal, he argued that his ⁵⁴² bedroom and bathroom were not “public places” within the meaning of that state’s statute and that his marital bedroom was a “sacred precinct” protected by the United States Constitution. Id. at 311. The court rejected his arguments.

The Greene Court noted that “public place” was broadly defined by statute as “ ‘any place where the conduct involved may reasonably be expected to be viewed by people other than members of the actor’s family or household.’ ” Id. Yet, the court recognized that what constitutes a “public” place is a question of fact. It concluded that one’s home “is not necessarily circumscribed from inclusion as a ‘public place.’ ” Id. (Citation omitted).

To the contrary, said the court, it was “not necessary that the place be visible to members of the public who are outside of it____” Id. at 311. In its view, the defendant, “by his own behavior removed the barrier [of privacy] and converted his bedroom and bath from a private zone to a public place, where his nudity might reasonably be expected to be viewed by people other than members of his family or household.” Id. The Georgia appellate court reached a similar outcome in McGee v. State, 165 Ga.App. 423 , 299 S.E.2d 573 (1983). There, the defendant and the victim were inside the victim’s apartment when the defendant told the victim he wanted to masturbate in front of her.

Id. at 574. When the victim told the defendant to leave the apartment the defendant refused and became agitated. Id. at 575. Fearful for her safety, the victim told the defendant to “do what he needed to do and get out.” Id.

On appeal, the defendant argued that because his acts were done in the privacy of the victim’s apartment, he could not be guilty of public indecency. Id. Noting the statutory definition of “public place,” set forth above, the court disagreed. It stated, id.: [T]he victim’s apartment would have been a “public place” as to the defendant if it were such a place where the lewd exposure might reasonably have been expected to have been viewed by [another] person or persons....

We hold, therefore, that the victim’s apartment was a “public place” as to this defendant under Code Ann. § 26-401(m). ⁵⁴³ People v. Legel, 24 Ill.App.3d 554 , 321 N.E.2d 164 (1974), is also noteworthy. There, a defendant was arrested for indecent exposure that occurred when he exposed his genitals while standing on the dining room table in front of a window of his home. Id. at 166. On appeal, the defendant challenged his conviction, claiming the interior of his home was not a “public place,” within the meaning of the statute prohibiting “public indecency.” He maintained that “his home is his castle” and thus “activities within the confines of his walls are private.” Id. at 168.

The Court soundly rejected that view. The Illinois statute in issue defined “public place” as “ ‘any place where the conduct may reasonably be expected to be viewed by others.’ ” Id. at 167. Notably, the Legel Court said, id. at 168: “It is the probability of public view that is crucial rather than the ownership or use of the particular real estate upon which the act occurs.” Further, the court reasoned, id.: [A] room in one’s own home may be a “public place” under certain circumstances____ The vantage point of the observer is relevant only insofar as it sheds light on the controlling inquiry of whether there was a reasonable expectation that the actor’s conduct would be viewed by others. The purpose of this section is to protect the public from shocking and embarrassing displays of sexual activities.

A person need not be in a public place to be a member of the public. The ambit of protection afforded by this statute clearly extends to members of the public in their own homes. (Emphasis added). Moreover, the court said, id.

(emphasis added): The duty lies with the deviate to keep his activities private. Where the evidence shows that it was reasonably foreseeable that the lewd conduct would be viewed by the casual public observer, there is a reasonable expectation of public view and the acts can be held to have occurred in a ‘public place’ by reason of the statutory definition. Characterizing appellant’s