Parnigoni v. District of Columbia, 04-CT-1378.

• Citation: 933 A.2d 823
• Decision Date: 11 October 2007
• Docket Number: No. 04-CT-1378.,04-CT-1378.
• Parties: David PARNIGONI, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: Court of Appeals of Columbia District

933 A.2d 823

David PARNIGONI, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 04-CT-1378.

District of Columbia Court of Appeals.

Argued June 20, 2006.

Decided October 11, 2007.

David Schertler, Washington, DC, for appellant.

Janice Y. Sheppard, Assistant Attorney General, with whom Robert J. Spagnoletti, Attorney General for the District of Columbia at the time the brief was filed, Edward E. Schwab, Deputy Attorney General, and Rosalyn Calbert Groce, Assistant Attorney General, were on the brief for appellee.

Before GLICKMAN, KRAMER and FISHER, Associate Judges.

KRAMER, Associate Judge:

The appellant, David Parnigoni, challenges his convictions for two counts of indecent exposure, arguing that they should be overturned because the language of the statute under which he was convicted is unconstitutionally vague. He asserts that the conviction involving a young boy, O.J., eleven years old at the time of the events at issue, should be overturned on the additional grounds that the conduct was private, consensual and, according to Parnigoni, therefore not prohibited under the law. He further argues that the other conviction involving O.J.'s father, J.J., should be overturned because the evidence was insufficient to show that J.J. viewed his exposed genitalia, as the law requires, or if so, that the exposure was intentional. We affirm the convictions.

I

The factual background of this matter is as follows: Parnigoni had worked at Janney Elementary School, where he befriended O.J. and his family.¹ Over the course of several years,² Parnigoni spent considerable time with O.J., and the family grew to trust him, treating him as a family member and giving him keys to their home.

On the day of the events at issue here, the then—thirty-three-year-old Parnigoni spent the day with the then eleven-year-old O.J. That afternoon, the two were alone in O.J.'s home when Parnigoni suggested that they play a game of ping-pong. O.J. agreed, and they went into the basement where there was a ping-pong table. Parnigoni suggested an additional rule for this particular game of ping-pong: that whoever lost a game would have to play the next game naked. O.J. agreed to play according to that rule and proceeded to beat Parnigoni at the first game they played. Parnigoni then took off all of his clothes and began to play the next match naked. O.J. testified that he was able to see Parnigoni's "whole body except for his legs down," including his "private parts."

At about 2:45 p.m., while Parnigoni and O.J. were still in the basement playing their second game of ping-pong, O.J.'s father, J.J., returned home. J.J. was running late for a dentist appointment and was stopping at home to pick up his son to take him to the appointment as well. While J.J. was still outside, walking to the front door, he heard the sound of ping-pong being played from the basement window wells. He then walked through the house, down the stairway to the basement and had almost reached the bottom when he observed Parnigoni facing him, completely naked.³ Once Parnigoni noticed that J.J. had come down the steps into the basement, he acted surprised, covered his genitals and ran to a nearby bathroom which was five to six feet from the ping-pong table.

Parnigoni was subsequently arrested and charged with two counts of indecent exposure, one as to J.J. and one as to O.J. At the conclusion of a jury trial, he was found guilty of both offenses.⁴

II

A.

We first address Parnigoni's argument that his convictions for indecent exposure should be vacated because the statute under which he was charged is unconstitutionally vague:

A criminal statute is void on vagueness grounds when it provides no standards by which conduct falling within its scope may be ascertained. Such a statute infringes upon due process rights by failing to provide fair warning of what is prohibited and inviting capricious and arbitrary enforcement by public officials.

Leiss v. United States, 364 A.2d 803, 806 (D.C.1976); see also Parker v. Levy, 417 U.S. 733, 752, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (quoting Smith v. Goguen, 415 U.S. 566, 572-573, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974) ("The doctrine [of void for vagueness] incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent `arbitrary and discriminatory enforcement.'")). When addressing the vagueness doctrine, the Supreme Court has said that "clarity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute." United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997), quoted in McNeely v. United States, 874 A.2d 371, 382 n. 14 (D.C.2005). As we set out below, the indecent exposure statute addressed here has had a number of judicial glosses that have clarified its meaning, at least in the context of the facts of this case.

The provision utilized to charge Parnigoni's actions with respect to O.J., reads in its entirety:

Any person or persons who shall commit an offense described in subsection (a) of this section, knowing he or she or they are in the presence of a child under the age of 16 years, shall be punished by imprisonment of not more than 1 year, or fined in an amount not to exceed $1,000, or both, for each and every such offense.

D.C.Code § 22-1312(b) (2001) (emphasis added). Because of the cross-reference, to understand subsection (b) it is necessary to refer to subsection (a) of section 22-1312. That provision, under which Parnigoni's actions with respect to J.J. were charged, makes it unlawful "for any person or persons to make any obscene or indecent exposure of his or her person." We addressed the meaning of this language in Duvallon v. District of Columbia, 515 A.2d 724 (D.C.1986), and held that the language "obscene or indecent exposure of his or her person" makes "the indecent exposure of human genitalia [] the offense." 515 A.2d at 728. We have also held: "An exposure becomes indecent when the defendant exposes himself at such a time and place, where as a reasonable man he knows or should know his act will be open to the observation of others." Peyton v. District of Columbia, 100 A.2d 36, 37 (D.C. 1953); see also Hearn v. District of Columbia, 178 A.2d 434, 437 (D.C.1962). We have further held that in order to be convicted of this offense, a defendant must have intended to do the prohibited act, though "the intent required is only a general one, and need not be directed toward any specific person or persons." Peyton, supra, 100 A.2d at 37. On the other hand, we have held that "[o]rdinary acts involving exposure as a result of carelessness or thoughtlessness, particularly when such acts take place within the privacy of one's home, do not in themselves establish the offense of indecent exposure." See Selph v. District of Columbia, 188 A.2d 344, 345 (D.C.1963). Thus, Parnigoni's argument that the indecent exposure statute is unconstitutionally vague is refuted by a longstanding line of cases from this court that have clarified its meaning. For this reason, we reject Parnigoni's argument that the indecent exposure statute is unconstitutionally vague. The statutory construction in each of these cases, moreover, is considered part of the statute for purposes of assessing its vagueness. Wainwright v. Stone, 414 U.S. 21, 22, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973) (per curiam) ("The judgment of [] courts as to the vagueness or not of a state statute must be made in the light of prior state constructions of the statute.") Because our cases have defined the contours of the statute's application beyond merely its wording, we reject Parnigoni's argument that the indecent exposure statute is unconstitutionally vague.⁵

Parnigoni also asserts that the indecent exposure statute was not intended to apply to an act committed in private in the presence of a single and consenting person. This is an accurate statement of our law. See Rittenour v. District of Columbia, 163 A.2d 558, 559 (D.C.1960); District of Columbia v. Garcia, 335 A.2d 217, 224 (D.C.1975). But the argument misses the point. O.J. cannot have consented because he was under the age of sixteen when the events at issue took place; such consent is barred by the statute.

We had occasion to address the effect of a claim of consent by an eleven-year old minor—the same age as O.J.—to a sexual act in Davis v. United States, 873 A.2d 1101 (D.C.2005). There, a father was charged with misdemeanor sexual abuse under section 22-3006 of the District of Columbia Code,⁶ and based his defense on consent under section 22-3007, which reads: "Consent by the victim is a defense, which the defendant must establish by a preponderance of the evidence to a prosecution under [section 22-3006]." We upheld "the longstanding rule that a child is legally incapable of consenting to sexual conduct with an adult," 873 A.2d at 1105, and noted that "the historical premise of that rule is that children cannot consent `in a meaningful way,' because they `do not understand what is happening to them.'" Id. (quoting Williams v. United States, 756 A.2d 380, 386 (D.C.2000), and Guarro v. United States, 99 U.S.App. D.C. 97, 100, 237 F.2d 578, 581 (1956)).

Various provisions of the Anti-Sexual Abuse Act of 1994, see D.C.Code §§ 22-3001-3012 (2001), which substantially revised the sex offense laws in this jurisdiction, are also useful to address the issue of whether a child can consent to actions that would otherwise violate the indecent exposure statute. Sections 22-3008 (First Degree Child Sexual Abuse), -3009 (Second Degree Child Sexual Abuse), and -3010 (Enticing a Child) of the District of Columbia Code prohibit child sexual abuse. Section 3011 provides that "[n]either mistake of age nor consent is a defense to a prosecution" under these sections, and section 22-3001 defines a child as "a person who has not yet attained the age of...