Wisneski v. State
| Decision Date | 18 April 2007 |
| Docket Number | No. 76, Sept. Term, 2006.,76, Sept. Term, 2006. |
| Citation | 398 Md. 578,921 A.2d 273 |
| Parties | Gerald Eugene WISNESKI v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Piedad Gomez, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), for petitioner.
Diane E. Keller, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen., on brief), for respondent.
Argued before BELL, C.J., RAKER, CATHELL, HARRELL, BATTAGLIA, GREENE and ALAN M. WILNER (Retired, specially assigned), JJ.
Petitioner, Eugene Wisneski, while a guest in a private home, suddenly exposed his genitalia to three other people in the room, who were not family members and who were deeply offended by that conduct. There was no evidence whether anyone outside the home did see or could have seen what he had done. For the behavior, Wisneski was convicted in the Circuit Court for Montgomery County of the common law crime of indecent exposure. In this appeal, he contends that, because the offense requires that the exposure be in a "public place," his exposure to casual observers in a private home does not suffice to constitute the offense.1 We disagree.
At noontime on July 1, 2005, Brandon James visited his neighbor Bridgette Penfield in her home in Germantown, Maryland, and remained for about two hours, talking with her and another neighbor who also was visiting, Petitioner, Gerald Eugene Wisneski; both Wisneski and Penfield were drinking beer. Brandon returned to Penfield's home about five hours later with his fifteen-year-old sister, Jennifer James. Wisneski had not left Penfield's home since Brandon's previous visit and had continued to drink beer. About twenty minutes later, Wisneski asked Jennifer if she "was on her period," stood up,2 and exposed his penis and testicles to her, shaking them and repeating the question of whether "she was on her period." Jennifer immediately turned her head away while Wisneski, who after clothing himself, began grabbing his genitals from outside of his shorts and shaking them in Jennifer's direction. Catching sight of Wisneski's actions, Brandon became enraged, challenging Wisneski to fisticuffs and prompting Wisneski to jump out of his seat and abruptly leave the home.3
At trial, the State called four witnesses, Brandon and Jennifer James, and the two arresting officers, Brian Blakesley and W.R. Morgan of the Montgomery County Police Department.4 Wisneski did not call any witnesses.
Jennifer was the State's first witness:
On cross-examination, the following colloquy occurred:
The State then called Brandon to testify:
The following testimony was elicited on cross-examination:
The State also called the two police officers, who testified to the details surrounding the arrest of Wisneski, after which the State rested its case, prompting Wisneski to make a motion for judgment of acquittal, which the court denied. Wisneski then rested his case and renewed his motion for acquittal with respect to the charge for indecent exposure, arguing that the interior of Penfield's home did not constitute a "public place" as the offense required. The court again denied the motion, reasoning that "as I read the definition, if it occurs under circumstances where it could be seen by other people if they happen to look, that constitutes a public place."
The jury was then charged with the following instruction, to which Wisneski took no exception:
In order to convict the defendant of indecent exposure you must find beyond a reasonable doubt that the defendant intentionally exposed his penis or other body part that should not be exhibited in a public place. Indecent exposure, to amount to a crime, must have been done intentionally. Intent may be inferred from the conduct of the accused and the circumstances and the environment of the occurrence.
An exposure becomes indecent ... when [a] defendant exposes himself at such a time and place that, as a reasonable man, he knows or should know his act will be open to the observation of others. An exposure is public or in a public place if it occurs under such circumstances that it could be seen by a number of persons if they were present and happen to look. It is immaterial that the exposure is seen by only one person if it occurs at a place open or exposed to the view of the public and where anyone who happened to have been nearby could have seen had he looked.
(emphasis added). The jury found Wisneski guilty of indecent exposure, as well as various handgun charges, and the court imposed a five year sentence for the illegal possession of a regulated firearm by a person previously convicted of a crime of violence, merged the other handgun convictions, and also imposed a consecutive six-month sentence for the crime of indecent exposure.
Wisneski noted a timely 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 window pane." The intermediate appellate court determined that, although there was insufficient evidence for the jury to determine whether Wisneski was visible to passers-by outside the window, his conduct still amounted to indecent exposure because, as a guest in a private home, he had exposed himself intentionally, as opposed to inadvertently, to three persons who were not members of his family or household, without their permission or consent, in an area of the house not regarded as private, such as a bathroom. Id. at 551-52, 905 A.2d at 399. The Court of Special Appeals held that, under those...
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