MD COSA rules friend's home was a 'public place' for indecent

Daily Record, The (Baltimore), Jul 14, 2006 by Ann W. Parks

A Montgomery County man who intentionally exposed his genitals to three people was guilty of indecent exposure, even though the offense occurred inside a friend's home, the Court of Special Appeals has held.

The decision affirmed Gerald Wisneski's conviction, stemming from an incident in 2004. Wisneski, who was in his early 40s, was visiting Bridgette Penfield at her Germantown home when he exposed himself to Penfield's 15-year-old female neighbor and the girl's older brother, who were also visiting the private trailer home.

[I]t is clear that [Wisneski] intentionally exposed himself to the two other invitees and the host without their permission or consent, Judge Ellen L. Hollander wrote this week for the appellate court. Put another way, this is not a case in which the accused inadvertently exposed his genitals while in the privacy of a residence or building, such as by carelessly changing clothes in front of a window or by walking around nude in front of his family while in his own home.

Kathryn G. Graeff, chief of the criminal appeals division in the attorney general's office, said that the court gave further guidance on determining whether an exposure is in a public place, a required element of the crime.

The court rejected the argument that the crime of indecent exposure cannot occur in a private residence, she said. Under the circumstances of this case, Wisneski's exposure occurred in a public place.

In a 1957 opinion, Messina v. State, the Court of Appeals determined that the circumstances of a particular case determine whether a place is public, Hollander noted.

Under Messina, an exposure is 'public' if it occurs under such circumstances that it could be seen by a number of persons, if they were present and happened to look.

We do not construe the definition of 'public place' so narrowly as to apply solely to places that are physically located outdoors or open to the public at large, without any restriction, Hollander wrote.

The court declined to address whether Wisneski's conduct would have been illegal had it occurred in his own home. It noted, however, that other states have upheld convictions of public indecency and indecent exposure where, for example, a man intentionally appeared nude in front of a female babysitter in his bedroom; or where a man exposed himself in front of a window while standing on his dining room table.

Overexposed

At the 2005 trial, the 15-year-old and her brother testified that when they entered the trailer home, Wisneski was sitting on a couch, drinking beer. They claimed that Wisneski began talking sexual stuff, dropped his pants, pulled his penis and testicles from his shorts and shook them at the girl.

When the girl's angry brother tried to fight Wisneski, Penfield broke them up, the opinion states. Wisneski then left the trailer and returned with what appeared to be a gun.

The girl went home and told her mother, who called police. Wisneski was later apprehended with a loaded handgun.

He was tried in Montgomery County Circuit Court, where a jury convicted him of indecent exposure, illegal possession of a regulated firearm by a person previously convicted of a crime of violence and related gun crimes. He received five years in jail for the first firearm charge (the other weapons offenses being merged) and a consecutive six-month sentence for indecent exposure.

Prior to trial, the parties agreed to stipulate that Wisneski had been previously convicted of a crime of violence and a disqualifying crime, for purposes of two of the gun charges. But when the prosecutor failed to introduce the stipulation at trial, the defense moved for judgment of acquittal as to those charges.

The judge allowed the prosecutor to reopen the case to place the stipulations on the record in front of the jury. On appeal, the intermediate appellate court found no abuse of discretion, saying the trial court did not need to explain its rationale on the record.

There was no evidence that the State withheld the stipulation for tactical advantage, Hollander wrote. To the contrary, the State mistakenly thought the stipulation was already on the record.

HOLLANDER: VISIBLE TO OTHERS

WHAT THE COURT HELD

Case:

Wisneski v. State, CSA No. 222. Opinion by Hollander, J. Filed July 12, 2006.

Issue:

Was a defendant properly convicted of the crime of indecent exposure where he intentionally exposed his genitals to three people in a neighbor's private trailer home?

Holding:

Yes; affirmed. What constitutes a public place within the meaning of the offense depends on the circumstances; here, the defendant exposed himself to his host and two other invitees without their consent.

Counsel:

Renee M. Hutchins for appellant; Sarah Page Pritzlaff for appellee.

RecordFax 6-0712-04 (35 pages)