Wisneski v. State

Decision Date12 July 2006
Docket NumberNo. 222, September Term, 2005.,222, September Term, 2005.
PartiesGerald WISNESKI v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Renee M. Hutchins (Michael Millemann, on the brief), Baltimore, for Appellant.

Sarah Page Pritzlaff (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.



In this appeal, we must determine, inter alia, whether the common law crime of indecent exposure encompasses intentional conduct that occurs within a private home of a third party. A jury in the Circuit Court for Montgomery County convicted Gerald Wisneski, appellant, of indecent exposure; illegal possession of a regulated firearm by a person previously convicted of a crime of violence; illegal possession of a regulated firearm by a person previously convicted of a disqualifying crime; and wearing, carrying, or transporting a handgun. Thereafter, the court imposed a mandatory sentence of five years for the first firearm count, merged the other handgun convictions, and imposed a consecutive six-month sentence for the crime of indecent exposure.

On appeal, Wisneski asks:

1. As a matter of law, can a private residence being used by the owner to entertain three personal friends constitute a "public place" under the common law crime of indecent exposure?

2. Did the trial court abuse its discretion by permitting the State to reopen its case and introduce additional evidence where the prosecutor did not show due diligence?

For the reasons set forth below, we shall affirm.


The indictment charged appellant, in part:

The Grand Jurors of the State of Maryland, for the body of Montgomery County, upon their oaths and affirmations, present that GERALD EUGENE WISNESKI, on or about July 1, 2004, in Montgomery County, Maryland, did indecently expose his person a public place [sic], in violation of the Common Law against the peace, government, and dignity of the State.

(Emphasis added).

The trial began on March 1, 2005. The following evidence was adduced.

On July 1, 2004, appellant visited his friend, Bridgette Penfield, at her trailer home, located in a "trailer park" in Germantown in Montgomery County. At around 7 P.M. on that date, Ms. Penfield's neighbors, fifteen-year-old Jennifer James and her older brother, Brandon James, also arrived to visit Ms. Penfield.1

Ms. James testified that, when she and her brother entered the trailer, Mr. Wisneski was "sitting on the ... big couch facing like the big window pane," and he "was drinking beer." According to Ms. James, Wisneski "just started talking sexual stuff" to her, and he asked her if she was "on [her] period...." Shortly thereafter, appellant stood up and "pulled out his penis" and his testicles from his shorts. Then, while appellant was holding his penis and his testicles in his hand, he shook them at Ms. James. She recalled: "I turned my head real fast." According to Ms. James, her brother "just started going off" and "tried to fight" appellant, but Ms. Penfield "got in the middle of it and then tried to stop it...."

Ms. James recalled that appellant then put his genitals back in his shorts. However, he placed his hands over "his private part and started shaking it." Ms. James claimed that Wisneski then left the trailer and went home to retrieve a gun; he returned a few minutes later. According to Ms. James, she saw "the outline" of a gun on appellant. Ms. James went home, told her mother appellant had a gun, and her mother "called the cops."

Mr. James essentially offered a similar account of the events. He testified that he went to Ms. Penfield's trailer earlier that day, at about noon, without his sister. At the time, appellant was "[s]itting in the chair beside the window,"2 and he and Ms. Penfield were drinking beer. Mr. James left at around 2:00 P.M., but returned later that day with his sister. At that time, Wisneski asked Ms. James if she was "on her period," and Mr. James watched as Wisneski "dropped" his "pants completely" and shook his "uncovered" penis at his sister. Mr. James began "flipping out" and "screaming" at Wisneski. Ms. Penfield came between them to prevent a fight.

Two police officers also testified. They explained that they responded to the area based on a call to the police concerning a man with a gun. Upon locating Wisneski, they took him into custody and, in a search of his shopping bag, incident to his arrest, the police discovered a handgun with "two live rounds....," i.e., two .22-caliber bullets inside the weapon.

During the State's case-in-chief, the prosecutor failed to introduce a stipulation that had been reached before the trial began. In particular, the parties had agreed to stipulate that Wisneski had previously been convicted of a crime of violence and a disqualifying crime. The following pre-trial exchange is pertinent:

[PROSECUTOR]: Your Honor, with regard to this charging document, Mr. Wisneski is charged under the Public Safety Article for two different counts under Section 133. The indictment if you read the language reflects that one of those counts is the B count, which is possession of a regulated firearm, having been convicted of a crime of violence. The second, which is count two, is cited as 133B again, which is possessing a firearm having been convicted of a disqualifying crime. I spoke with [defense counsel] and it is my understanding that there will be a stipulation that in fact Mr. Wisneski has been convicted of both a disqualifying crime and a crime of violence.

* * *

[DEFENSE COUNSEL]: We're out of the presence of a jury. I'll stipulate that he's been convicted of second degree assault and wearing and carrying a handgun I believe.

* * *

[THE COURT]: All right, so the stipulation is that the crime of violence in question is a second degree assault.

* * *

[THE COURT]: Okay. All right, so let's just review. Count 1 is 5-133(c) which is possession of a handgun by a person convicted of a crime of violence. Count 2 is 5-133(b) possession of regulated firearm by someone who's been convicted of a disqualifying crime. The disqualifying crime being the prior handgun charge. Are we all in agreement?

[DEFENSE COUNSEL]: That's correct, Your Honor.

After the State rested, the defense moved for judgment of acquittal, which the court denied. The defense then rested without calling any witnesses, and renewed its motion for judgment of acquittal.

As to the charge of indecent exposure, the defense argued:

I don't recollect there being any testimony about him exposing himself in a public place. Now I know that there are and I don't recollect there being any testimony about people on the outside of the trailer being able to see in wherever he was situated when he allegedly did that in the trailer. And therefore I would suggest to the court, first of all, this is a private residence. There's no testimony about what people passing by or outside of the trailer might have seen if they had been looking. There's no testimony that there were windows or doors with glass in them or that you could see out of the [trailer]. I would submit to the court that it was not a public place, nor was it a place which could be viewed by the public had they been looking and therefore with regard to that charge I would ask the court to dismiss it at this time.

The court denied the motion as to the charge of indecent exposure. It reasoned that the "public place" element of the crime of indecent exposure is satisfied "if it occurs under circumstances where it could be seen by other people if they happen to look...."

Because the State failed to introduce the stipulation that appellant had prior convictions that disqualified him from possessing a firearm, appellant also moved for judgment of acquittal in regard to the two charges involving illegal possession of a regulated firearm. The following exchange is relevant:

[DEFENSE COUNSEL]: [A]t this point in time, Your Honor, I don't believe stipulations are in evidence. Therefore, I believe that the evidence with regard to count one and count two are lacking because they're not in evidence.

We certainly discussed them and I certainly indicate[d] that I would stipulate but I don't believe that they've been placed in evidence by any stipulation before the jury for the jury to have. We certainly did discuss them with the court but I believe those things must be moved into evidence in front of the jury and the jury must be told at some point in time before the case concludes. Therefore, I would suggest to the court that these matters are not in evidence. The case has concluded. I suggest to the court with regard to counts one and two, there's no evidence that the jury has and with the case being concluded that my client has been convicted of a crime of violence or has been convicted of a disqualifying crime.

[PROSECUTOR]: Your Honor, this whole matter proceeded, as you are well aware, from yesterday morning on the idea that there was a stipulation in place or in effect. I don't, at this point I think it's, I don't think it's fair —

[THE COURT]: What you're saying is if it's necessary to move to reopen your case to place the stipulations on the record in front of the jury, you're asking to do that.

[PROSECUTOR]: I would, if the court is inclined to do that I would be asking the court to do that if the court believes it's necessary. I was under the impression that that stipulation was already on the record.

[THE COURT]: It is on the record. It's not on the record in front of the jury yet.

[PROSECUTOR]: All right, Your Honor.

[THE COURT]: Do you object to reopening the case?

[DEFENSE COUNSEL]: Yes, Your Honor, I do.

[THE COURT]: Okay, well I'm going to allow him to do it.

* * *

[DEFENSE COUNSEL]: [T]he court has indicated that it will allow the State, over my objection and I do note my objection, the State to reopen this case to put before the jury, the stipulation. There...

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26 cases
  • Wisneski v. State
    • United States
    • Court of Special Appeals of Maryland
    • April 18, 2007
    ...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......
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  • Smith v. State, 619
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    • Court of Special Appeals of Maryland
    • June 3, 2019
    ...that the court is not required to "spell out every step in weighing the considerations that culminate in a ruling." Wisneski v. State, 169 Md. App. 527, 556 (2006), aff'd, 398 Md. 578 (2007). A trial court's findings are sufficient when "the record supports a reasonable conclusion that appr......
  • Payton v. State, 2115, Sept. Term, 2016
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    • Court of Special Appeals of Maryland
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