Virginia Lawyers Weekly VA Lawyers Weekly
Although defendant was discovered in a parked car in a hotel parking lot wearing only a woman’s nightgown pulled up to his waist and exposing his genitals, the totality of the circumstances does not support his conviction of indecent exposure, third offense, and the Court of Appeals reverses the conviction.
In finding defendant guilty of indecent exposure, third offense, the trial court found defendant parked in a hotel parking lot, wearing only a woman’s nightgown pulled up to his navel exposing his genitals, and his pants were on the seat next to him. The trial judge found the “whole set of circumstances indicates it is an intentional act and what other purpose could there be but to appeal to his prurient interest.”
Virginia Code § 18.1-387 requires proof that defendant intentionally made an obscene display or exposure of his person, or the private parts thereof, in any public place. Assuming without deciding that defendant’s display of his private parts was intentional, such display was not obscene. Here, defendant did not admit to having an obscene intent, he was not visibly aroused and there was no evidence he was masturbating. Thus, his actions were only obscene if the totality of the circumstances support an inference that he had as his dominant purpose a prurient interest in sex.
Here, defendant made no sexual statements to the officer who discovered him and defendant did not try to expose himself to a particular individual. Although defendant was parked in the parking lot of the Hampton Inn, there was no foot traffic in the area, it was after midnight, and he was not parked near the front door of the business. Defendant was alone in the car, he was not “modeling” his outfit for another, as in another case, and as soon as the officer spoke to him, defendant pulled down the nightgown and grabbed his pants. Although defendant’s behavior was bizarre, the evidence merely proved nudity and was insufficient to prove defendant’s actions had as its dominant purpose a prurient interest in sex.
Conviction reversed and case dismissed.
Romick v. Commonwealth (Haley) No. 1580-12-4, Nov. 19, 2013; Warren County Cir.Ct. (Hupp) Peter K. McDermott, APD, for appellant; Katherine W. Adelfio, AAG, for appellee. VLW 013-7-312(UP), 5 pp.
