Wisneski v. State

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

I. Background At noontime on July 1, 2005, Brandon James visited his neighbor Bridgette Penfield in her home in Germantown, Maryland, and remained for about two hours, talking with her and another neighbor who also was visiting, Petitioner, Gerald Eugene Wisneski; both Wisneski and Penfield were drinking beer. Brandon returned to Penfield’s home about five hours later with his fifteen-year-old sister, Jennifer James. Wisne ⁵⁸¹ ski had not left Penfield’s home since Brandon’s previous visit and had continued to drink beer. About twenty minutes later, Wisneski asked Jennifer if she “was on her period,” stood up, 2 and exposed his penis and testicles to her, shaking them and repeating the question of whether “she was on her period.” Jennifer immediately turned her head away while Wisneski, who after clothing himself, began grabbing his genitals from outside of his shorts and shaking them in Jennifer’s direction.

Catching sight of Wisneski’s actions, Brandon became enraged, challenging Wisneski to fisticuffs and prompting Wisneski to jump out of his seat and abruptly leave the home. 3 At trial, the State called four witnesses, Brandon and Jennifer James, and the two arresting officers, Brian Blakesley and W.R. Morgan of the Montgomery County Police Department. 4 Wisneski did not call any witnesses. Jennifer was the State’s first witness: THE STATE: Jennifer, do you recall if you saw Mr. Wisneski on July 1st of this year around 7 o’clock in the evening? ⁵⁸² JENNIFER: Yes, I did. THE STATE: Where did you see Mr. Wisneski that day? JENNIFER: In [Penfield’s] house.

THE STATE: Okay, who’s [Penfield]? JENNIFER: Our next door neighbor. THE STATE: Okay. WTiy don’t you tell the Court what you were doing there that day.

JENNIFER: I was there talking to [Penfield] and [Wisneski] was there. He was drunk, and he just started talking sexual stuff to me. JENNIFER: He was sitting in [Penfield’s] house. He was drinking beer and then he just started asking was I on my period and stuff.

THAT STATE: Okay. Let’s go to that then. WThen he said that to you, what exactly did he say to you? JENNIFER: Was I on my period and— THE STATE: Okay.

And when he said that did he do anything? What did he do? JENNIFER: He pulled out his penis and his other thing. THE STATE: His testicles?

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

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

I think it was shorts. THE STATE: After he pulled out his, after he exposed himself to you, what did you do? ⁵⁸³ JENNIFER: I turned my head real fast. And that’s when my brother seen it. THE STATE: Okay.

At any point did Mr. Wisneski cover himself back up? JENNIFER: Yes, he put it back in his pants and when he put it back in his pants he put his hand on his pants and his private part and started shaking it. On cross-examination, the following colloquy occurred: THE DEFENSE: And you and your brother frequented [Penfield]’s place often did you? It’s across the street?

JENNIFER: Yeah, we used to be in there playing cards. THE DEFENSE: Now, when you went in where was Mr. Wisneski seated? JENNIFER: He was sitting on the, on the big couch facing like the big window pane. THE DEFENSE: Okay.

And where was [Penfield] sitting? JENNIFER: [Penfield] was sitting on the edge or on the other chair, I can’t really, the way her couch is set up, her furniture there’s a big chair and then there’s another chair beside it. THE DEFENSE: Okay. JENNIFER: But I think she was sitting on the edge of that big couch.

THE DEFENSE: And just the two of them were there when you arrived? Yes? JENNIFER: Yes. THE DEFENSE: And now you said he exposed himself to you?

JENNIFER: Yeah, but when I, when I first walked in— THE DEFENSE: He didn’t expose himself? JENNIFER: He, not until like 20 minutes later. ⁵⁸⁴ THE DEFENSE: Okay. And when he exposed himself to you did he stand up? JENNIFER: Yes.

THE DEFENSE: He stood up? Okay. And did he pull his pants down? JENNIFER: He lifted up the bottom of his shorts and that’s when he pulled out his penis and his, his other thing.

I don’t know how to say it. The State then called Brandon to testify: THE STATE: When you and your sister got there what did he do? What did the defendant do? BRANDON: He asked my sister was she on her period and started shaking his thing at her.

THE STATE: All right, when you say start shaking his thing at her what do you mean? BRANDON: I don’t know how ya’ll like me to say it. Penis. THE STATE: Okay.

Was he covered when he was shaking at her or was it uncovered when he was shaking it at her? BRANDON: Uncovered. The following testimony was elicited on cross-examination: THE DEFENSE: Now, when you got [to Penfield’s house] where was Mr. Wisneski? Where was he?

BRANDON: Sitting in the chair beside the window. THE DEFENSE: Sitting in the chair? BRANDON: Yeah, a recliner. THE DEFENSE: And where was [Penfield]?

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

And you came back with your sister is that right? BRANDON: Yes. ⁵⁸⁵ THE DEFENSE: Okay. And you indicated that Mr. Wisneski did something unusual is that right? BRANDON: Yes.

THE DEFENSE: Do you recall what he was wearing that day? BRANDON: I believe he had some shorts on. THE DEFENSE: Now, you indicated that Mr. Wisneski exposed himself is that right? BRANDON: Yes.

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

The State also called the two police officers, who testified to the details surrounding the arrest of Wisneski, after which the State rested its case, prompting Wisneski to make a motion for judgment of acquittal, which the court denied. Wisneski then rested his case and renewed his motion for acquittal with respect to the charge for indecent exposure, arguing that the interior of Penfield’s home did not constitute a “public place” as the offense required. The court again denied the motion, reasoning that “as I read the definition, if it occurs under circumstances where it could be seen by other people if they happen to look, that constitutes a public place.” The jury was then charged with the following instruction, to which Wisneski took no exception: 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 ⁵⁸⁶ 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.

(emphasis added). The jury found Wisneski guilty of indecent exposure, as well as various handgun charges, and the court imposed a five year sentence for the illegal possession of a regulated firearm by a person previously convicted of a crime of violence, merged the other handgun convictions, and also imposed a consecutive six-month sentence for the crime of indecent exposure. Wisneski noted a timely appeal to the Court of Special Appeals, which affirmed his conviction for indecent exposure in a reported opinion, Wisneski v. State, 169 Md.App. 527 , 905 A.2d 385 (2006), concluding that Wisneski had exposed himself in the home of a third party, in daylight, while in a room that had a “big window pane.” The intermediate'appellate court determined that, 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. Id. at 551-52 , 905 A.2d at 399 .

The Court of Special Appeals held that, under those circumstances, the exposure had occurred in the open and was observed by others, thereby constituting an exposure in a “public place.” Id. ⁵⁸⁷ Before this Court, Wisneski contends that, under the common law offense of indecent exposure, it is not the conduct of exposing oneself which the common law seeks to criminalize, but the public nature of the exposure. He argues that an indecent exposures occurs in a “public place” if, under our holding in Messina v. State, 212 Md. 602, 605-06 , 130 A.2d 578, 579-80 (1957), it is “likely to be seen by a number of casual observers.” Citing Messina, Regina v. Webb, 1 Den. 338 (1848), and State v. Goldstein, 72 N.J.L. 336 , 62 A. 1006 (1906), he argues that, in this case, “casual observers” were those individuals who may have been passing by the outside of Penfield’s home, and not those inside the home as invited guests. Wisneski therefore maintains that the “public” element of the common law crime of indecent exposure is satisfied only if members of the public casually passing by would be likely to see the exposure and one or more actually did see it, or if the exposure occurs within a place “that is for the time being open to a portion of the public, as distinguished from a private room,” citing Lockhart v. State, 116 Ga. 557 , 42 S.E. 787 (1902), Morris v. State, 109 Ga. 351 , 34 S.E. 577 (1899), and Byous v. State, 121 Ga.App. 654 , 175 S.E.2d 106 (1970). Wisneski argues that these precepts are consistent with the common usage of the term “public place,” as well as the Supreme Court’s distinction between the public realm and private domain enunciated in United States v. Karo, 468 U.S. 705 , 104 S.Ct. 3296 , 82 L.Ed.2d 530 (1984), and Kyllo v. U.S., 533 U.S. 27 , 121 S.Ct. 2038 , 150 L.Ed.2d 94 (2001).

He, therefore, alleges that, because Penfield’s home was a private residence, not open for general use by the public, and because he was not visible to passers-by, Penfield’s home did not constitute a “public place” under the common law offense of indecent exposure. Conversely, the State cites Messina and Regina v. Wellard, 15 Cox, C.C. 559 (1884), for the proposition that the circumstances dictate whether the common law crime of indecent exposure occurred, so that a place is public when members of the public are present. The State alleges that, under Messina , an exposure occurs in a public place if it is visible to ⁵⁸⁸ “casual observers” because, under the circumstances, it could “be seen by a number of persons, if they were present and happened to look.” 212 Md. at 605-06 , 130 A.2d at 579-80 . The State, therefore, contends that indecent exposure can occur within the confines of a private building even without evidence indicating that an exposure could be viewed from outside the building, citing State v. Pallman, 5 Conn.Cir.Ct. 202 , 248 A.2d 589 (1968), People v. Legel, 24 Ill.App.3d 554 , 321 N.E.2d 164 (1974), and Greene v. State, 191 Ga.App. 149 , 381 S.E.2d 310 (1989), in support.

The State further maintains that the characterization of a “private” home, versus a public place, for purposes of the Fourth Amendment protection against unreasonable searches and seizures is in no way applicable to the case at bar because this case does not implicate those protections, nor did the exposure occur in Wisneski’s home, where he might have a legitimate expectation of privacy.

II

Analysis In this case we are called upon to determine whether an indecent exposure that occurs within a private residence can constitute a “public” exposure for purposes of the offense of indecent exposure, and whether there was sufficient evidence presented at trial for the jury to determine that Wisneski’s conduct satisfied the “public” element of the offense. We set forth the appropriate standard for reviewing sufficiency of the evidence in Harrison v. State, 382 Md. 477 , 855 A.2d 1220 (2004), stating: The standard of review for appellate review of evidentiary sufficiency is whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. See State v. Albrecht, 336 Md. 475, 478-79 , 649 A.2d 336, 337 (1994). We view the evidence in the light most favorable to the prosecution.

See id. (citing Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560, 573 (1979) and Branch v. State, 305 Md. 177, 182-83 , 502 A.2d 496, 498 (1986)). We give “due regard to the [fact finder’s] finding of facts, its resolution of conflicting evi ⁵⁸⁹ dence, and, significantly, its opportunity to observe and assess the credibility of witnesses.” McDonald v. State, 347 Md. 452, 474 , 701 A.2d 675, 685 (1997), cert. denied, 522 U.S. 1151 , 118 S.Ct. 1173 , 140 L.Ed.2d 182 (1998) (quoting Albrecht, 336 Md. at 478 , 649 A.2d at 337 ). Id. at 487-88 , 855 A.2d at 1226 , quoting Moye v. State, 36, Md. 2, 12-13, 796 A.2d 821, 827 (2002).

In Maryland, the crime of indecent exposure is a common law offense, originally derived from English common law when our Declaration of Rights was adopted on November 3, 1776, Article 3 of which originally provided, in pertinent part, “[t]hat the Inhabitants of Maryland are entitled to the Common Law of England ... subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State.” Md. Decl. of Rights, Art. 3. 5 In order to examine properly the public element of common law indecent exposure, therefore, we then must explore English common law extant in 1776 in which the offense of indecent exposure constituted a misdemeanor. Sir William Blackstone commented generally: [Misdemeanors are a breach and violation of the public rights and duties, owing to the whole community, considered as a community, in its social aggregate capacity ... All crimes ought therefore to be estimated merely according to the mischiefs which they produce in civil society: and, of consequence, private vices, or the breach of mere absolute duties, which man is bound to perform considered only as an individual, are not, cannot be, the object of any municipal law; any farther than as by their evil example, or other pernicious effects, they may prejudice the community, and thereby become a species of public crimes. Thus the vice of drunkenness, if committed privately and alone, is beyond the knowledge and of course beyond the reach of human tribunals: but if committed publicly, in the face of the ⁵⁹⁰ world, its evil example makes it liable to temporal censures ....

The only difference is, that both public and private vices are subject to the vengeance of eternal justice; and public vices are besible liable to the temporal punishments of human tribunals. Upon the whole therefore, though part of the offenses to be enumerated in the following sheets are of the offense against the revealed law of God, others against the law of nature, and some are offenses against neither; yet in a treatise of municipal law we must consider them all as deriving their particular guilt, here punishable, from the law of man. Having premised this caution, I shall next proceed to distribute the several offenses ... first, those which are more immediately injurious to God and his holy religion. The last offense which I shall mention, more immediately against religion and morality, and cognizable by the temporal courts, is that of open and notorious lewdness: either by frequenting houses of ill fame, which is an indictable offense; or by some grossly scandalous and public indecency, for which the punishment is by fine and imprisonment.

William Blackstone, 4 Commentaries on the Laws of England 41-42, 64 (6th ed. 1775) (footnote omitted) (emphasis added). Thus, the offense of indecent exposure necessitating open and notorious lewdness, was an offense against morality. Chief Judge Charles E. Orth, writing for the Court of Special Appeals, had the opportunity to explore the adopted elements of indecent exposure in Dill v. State, 24 Md.App. 695 , 332 A.2d 690 (1975), 6 in which he iterated: At the common law of England, to which the inhabitants of Maryland were declared to be entitled by Article 5, Declaration of Rights, Constitution of Maryland, indecent exposure ⁵⁹¹ of the person was a misdemeanor. 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. An exposure becomes indecent, and a crime, when 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. Id. at 698-700 , 332 A.2d at 693-94 , quoting Messina, 212 Md. at 606 , 130 A.2d at 580 (footnote omitted) (citations omitted) (emphasis added). 7 In footnote 2, referenced in the quote ⁵⁹² after the explanation that the English common law crime was a misdemeanor, Chief Judge Orth referred to Rollin M. Perkins’ discussion in his treatise on criminal law of Blackstone’s recognition of the public versus private dichotomy: In other words private indecency was exclusively under the jurisdiction of the ecclesiastical court but public indecency of an extreme nature was indictable. And, in the early view, indecent exposure of the person was merely one form of obscene exhibition.

Dill, 24 Md.App. at 699 n. 2, 332 A.2d at 693 n. 3, quoting Rollin M. Perkins & Ronald M. Boyce, Criminal Law 473 (3rd Ed.1982). In his exploration of the common law offense of indecent exposure, Chief Judge Orth relied upon our analysis in Messina, 212 Md. at 602 , 130 A.2d at 578 , wherein the defendant was convicted for exposing himself, while seated in his parked car, to two thirteen year old girls on a busy street in Baltimore City. He challenged his conviction on the ground that, because only one of the girls actually saw him, there was no “public” exposure as required at common law. We disagreed, elucidating that the exposure occurs in “public” if it occurs “ ‘in such a manner that the act is seen or is likely to seen by casual observers’.” Id. at 605 , 130 A.2d at 579-80 .

We explained that the “public” element did not require that the exposure be actually seen by more than one person if it “oecur[red] under such circumstances that it could be seen by a number of persons, if they were present and happened to look,” and thus, “it is likely to be seen by a number of casual observers.” Id. at 605-6 , 130 A.2d at 580 (emphasis added). Further, we explained that the exposure must have been intentional, which “may be inferred from the conduct of the ⁵⁹³ accused and the circumstances and environment of the occurrence.” Id. at 606 , 130 A.2d at 580 . Thus, [a]n exposure becomes indecent, and a crime, 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. Id.

Therefore, the “public” elements depends on the ability to be observed by others. Thus, our jurisprudence clearly sets forth the three elements of indecent exposure: a public exposure, made wilfully and intentionally, as opposed to an inadvertent or accidental one; which 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. By their very nature, the three elements are inextricably entwined, and our analysis of each one element enlightens our inquiry into the others. Thus, although Wisneski challenges his conviction under the one prong of the offense, alleging that he did not “publicly” indecently expose himself because his conduct occurred within the confines of a private dwelling, we look to the first two elements of the offense of indecent exposure in order to inform our inquiry into whether Wisneski “publicly” indecently exposed himself.

The element of intent can be express, or inferred from the circumstances and the environment of the exposure. When the 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 acts are not accidental and his intent may be inferred. Messina, 212 Md. at 606 , 130 A.2d at 580 . The intent element itself is infused with a “public” element in the distinction between accidental and wilfulness, as was explored in Van Houten v. State, 46 N.J.L. 16 (1884), a case in which the Supreme Court of New Jersey interpreted English common law, when faced with the situation in which the defendant had urinated outside in a place visible to the residents of several homes.

The defendant challenged the following charge to the jury regarding the intent element, ⁵⁹⁴ which the court determined to be the correct statement of the law: [T]he testimony must show that the exposure was not merely accidental, and in order to convict the defendant you ought to be satisfied, from the testimony, that the exposure was intentional, at such time and place, and such manner as to offend against public decency; but intent may be inferred from recklessness. It is not necessary that some witness should testify that the defendant had said that he intended to commit the act; you can infer what he intended to do from what he actually did do. Id. at 18-19 . Thus, reckless exposure, determined by time, place and manner, can inform intent.

Conversely, when the exposures does not occur at such a time, and in such a place, or manner, that a defendant’s intention may be inferred, criminal sanctions have not been applied. In Case v. Commonwealth, 313 Ky. 374 , 231 S.W.2d 86 (1950), the defendant exposed himself while standing within the doorway to the garage of his auto repair shop, which faced his home, on an unimproved lane, without being aware of any observers in the vicinity, and without doing “anything to attract ... attention to him.” Id. at 87 . The court concluded that there was insufficient evidence that the defendant had “intentionally, wilfully or designedly exposed his person,” but rather, “[s]o far as the testimony reveals, it appears that anything he may have done was unintentional and inadvertent,” and reversed the conviction. Id. at 87-88 .

Inadvertent exposure then may negate intent. In State v. Peery, 224 Minn. 346 , 28 N.W.2d 851 (1947), the defendant was charged with indecent exposure under a Minnesota statute providing that any person who willfully and lewdly exposes their body private parts in a public place is guilty of a misdemeanor. The defendant had been observed by passersby on several occasions, standing unclothed in his ground floor dormitory room in front of a window. In refusing to criminalize the defendant’s conduct, the court emphasized that he had not directed attention to himself and explained that, ⁵⁹⁵ [t]o establish intent where the act does not occur in a public place or otherwise where it is certain to be observed, some evidence further than the act itself must be presented.

Ordinarily, intent is established by evidence of motions, signals, sounds, or other actions by the accused designed to attract attention to his exposed condition, or by his display in a place so public and open that it must be reasonably presumed that it was intended to be witnessed. Id. at 854. Noting that “[t]here is no evidence submitted that defendant had signaled or called to these witnesses or otherwise endeavored to direct their attention to himself,” the court concluded that defendant “may have been careless or heedless, but that he did not intentionally expose himself.” Id. at 853, 855. See also State v. Bergen, 141 N.H. 61 , 677 A.2d 145, 147 (1996) (holding that the common law offense of indecent exposure sought to punish “intentional” and “knowing” exposures, not “merely accidental or inadvertent exposure”). 8 A “public” aspect also infuses the element of observation; it is obvious that the defendant must have “published” his indecent exposure at such a time and place that anyone who happened to have been nearby could have seen it, had he looked.

Messina, 212 Md. at 606 , 130 A.2d at 580 . In State v. Roper, 18 N.C. (1 Dev. & Bat.) 208 (1835), the court held that an indictment charging that the defendant had indecently exposed himself within the public’s view was sufficient, stating: It is not necessary to the constitution of the criminal act, that the disgusting exhibition should have been actually seen by the public; it is enough, if the circumstances under which it was obtruded were such as to render it probable that it would be publicly seen; thereby endangering a shock ⁵⁹⁶ to modest feeling, and manifesting a contempt for the laws of decency. Id. at 209.

Therefore, probability of being seen, in addition to actual observation, was sufficient. In State v. Martin, 125 Iowa 715 , 101 N.W. 637 (1904), the defendant also was convicted of indecent exposure under a state statute, which he challenged on the ground that his exposure was not actually seen by a victim, which the court did not find persuasive, explaining: It does not follow from this rule that one who uncovers his person in the privacy of his own apartment, or other place where there is no reason to suppose that his act may offend the sensibilities of others, is guilty of a crime. The words “indecent exposure” clearly imply that the act is either in the actual presence and sight of others, or is in such a place or under such circumstances that the exhibition is liable to be seen by others, and is presumably made for that purpose, or with reckless and criminal disregard of the decencies of life. A person, if so inclined, may dress himself in nothing more substantial than the innocence of Eden, provided he does not “expose” himself in that condition.

The exposure becomes “indecent” only when he indulges in such practices at a time and place where, as a reasonable person, he knows, or ought to know, his act is open to the observation of others. Id. at 638. Again, potential exposure to others because of placement and time could constitute publication. In Noblett v. Commonwealth, 194 Va. 241 , 72 S.E.2d 241 (1952), the defendant challenged his conviction for indecently exposing himself while sitting in a ear on the side of the street based upon the fact that only one person saw him.

The court affirmed the conviction, stating that at common law, it mattered not that only one person saw the defendant’s conduct; rather, the determinative factor was whether, under the circumstances of the case, the defendant “could reasonably have been seen, or was likely to have been seen by persons using the street.” Id. at 244 , 72 S.E.2d 241 . See also Wicks v. City ⁵⁹⁷ of Charlottesville, 215 Va. 274 , 208 S.E.2d 752, 754 (1974) (holding that a statute must be construed in conformity with the common law, which required that the indecent exposure occur in front of at least one person, or in a place where it is likely to be seen by at least one person); State v. King, 268 N.C. 711 , 151 S.E.2d 566, 567 (1966) (stating that at common law indecent exposure did not require actual observation by members of the public when persons were present who could have seen the act); Commonwealth v. Hamilton, 237 Ky. 682 , 36 S.W.2d 342, 342-43 (1931) (vacating a conviction where indictment failed to charge “that the exposure took place under such circumstances that the members of the public might have witnessed it” because the “exposure may have taken place where the public may not have observed it”). The third and final element of the offense of indecent exposure, the gravamen of the present case, relates to the location of the exposure, oftentimes referred to as the “public place” element. There certainly is no shortage of case law in which the courts have held that this requirement is met when the conduct occurs outside of a dwelling.

See Regina v. Thallman, LE. & CA. 326 (1863) (affirming conviction for indecent exposure when defendant stood on the roof top of a private home and exposed himself); Martin, 101 N.W. at 637 (affirming conviction for indecent exposure occurring on a public highway); Goldstein, 62 A. at 1007 (holding that exposure occurred in a public place when defendant exposed himself in his grocery store, a place where “the public is invited for the purpose of trading”); State v. Rocker, 52 Haw. 336 , 475 P.2d 684, 688 (1970) (holding that individuals bathing in the nude on a public beach had committed the offense of indecent exposure); Wicks, 208 S.E.2d at 754 (affirming conviction where defendant urinated while walking down the sidewalk in town). In the instant case, however, we are confronted with lewd conduct that occurred inside a private dwelling, raising the question of whether exposure in such a place can satisfy the “public” element of the offense of indecent exposure. When confronted with the same issue of whether to criminalize an ⁵⁹⁸ indecent exposure in a private dwelling, courts of our sister states have divided. For some, the classification of the location as “private” is dispositive, as Wisneski asserts.

Courts in Indiana and New Mexico, for example, interpreting statutes, have held that an indecent exposure occurring inside a private dwelling was not subject to criminal penalties. See Long v. State, 666 N.E.2d 1258, 1261 (Ind.App.1996) (holding that, although “a private residence or private club is not a public place,” the members-only strip club was a public place because membership only cost one dollar and therefore it was open to the public without restraint); State v. Romero, 103 N.M. 532 , 710 P.2d 99, 103 (1985) (conviction for indecent exposure in private residence before two children reversed where “[i]t [wa]s undisputed that the acts of defendant upon which the state relied to establish the convictions of indecent exposure occurred within the confines of a private residence ... [and] were not subject to being viewed by the public generally,” meaning they were not “perpetrated in a place accessible or visible to the general public”). But see United States v. Graham, 56 M.J. 266, 269 (U.S.A.F.2002) (“At the onset, we note