Although defendant denied sexual gratification as a motive in riding his bicycle wearing only thong underwear, his conduct nevertheless constituted indecent exposure and the Court of Appeals affirms his conviction under Va. Code § 18.2-387.
When the Newport News police officer asked defendant what he was doing, he responded that it was a nice day for a bike ride, and he thought his attire was appropriate.
Under the terms of the indecent exposure statute, as applied to the straightforward facts here, defendant’s conduct cannot be said to exhibit “sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse.” The case thus turns on whether his conduct exhibited a “shameful or morbid interest in nudity.” If it did, then his conviction should be affirmed.
The facts before us evince a “shameful or morbid interest in nudity.” Specifically, defendant flaunted his almost completely nude body before an unsuspecting public in a very open public place. The extremely thin strip of cloth on the backside of his thong was unnoticeable, his buttocks were left completely uncovered, his pubic hair was exposed and only the thinnest of cloth strips barely covered his penis and scrotum. The sum total of this exhibition gave to bystanders the appearance of full nudity. His buttocks actually were nude based on the manner in which he exhibited them. The “private parts” listed in Code § 18.2-387 can include the buttocks. Moreover, defendant’s conduct occurred in daylight on one of the busiest streets of the city, exposing motorists and pedestrians, including children, to his exhibitionist behavior.
We hasten to add that not all public displays of nudity evince an interest in nudity that is “shameful or morbid” and neither do such displays necessarily violated customary limits of candor in description or representation of such matters. The obscenity standard requires a contextual assessment of exposure of a nude or partially nude body. We simply conclude that on these facts, defendant’s conduct satisfied the statutory definition of obscenity.
Maness v. Commonwealth (McCullough) No. 1201-13-1, May 20, 2014; Newport News Cir.Ct. (Pugh) Kevin R. Pettrey for appellant; Craig W. Stallard, AAG, for appellee. VLW 014-7-168(UP), 5 pp.