State v. Geri ( 2022 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
LOUIS EDWARD GERI, Appellant.
No. 1 CA-CR 21-0473
FILED 6-9-2022
Appeal from the Superior Court in Maricopa County
No. CR2021-117351-001
The Honorable Laura M. Reckart, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee
Louis Edward Geri, Mesa
Appellant
MEMORANDUM DECISION
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Peter B. Swann and Judge D. Steven Williams joined.
STATE v. GERI
Decision of the Court
B A I L E Y, Judge:
¶1 Louis Edward Geri (“Geri”) appeals his convictions and
sentences for one count of felony indecent exposure to a minor under
fifteen, and one count of misdemeanor indecent exposure. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the
judgment of the superior court. State v. Havatone, 246 Ariz. 573, 577, ¶ 15
(App. 2019) (citation omitted).
¶3 Shortly after getting in line at a donut shop in Scottsdale, R.
glanced behind her, after noticing her four-year-old child was upset. She
saw a white male with a red shirt, red shorts and “a fanny pack” standing
in line a few feet behind them. Geri’s accessory of choice was not, as it
turned out, a fanny pack. Rather, Geri was standing with his “genital area
completely exposed.” After realizing Geri’s state of undress and seeing the
shock and confusion on her child’s face, R. confronted Geri and asked him
why his genitals were uncovered in public. Geri responded that R. “can’t
tell [him] how to dress.” R. took her child away from Geri and hid within
the store.
¶4 Geri then left the donut shop and began walking along
Hayden Road, with “his genitals [] out and his [boxer shorts] actually
tucked underneath his testicles.” A police officer responded to reports of a
man exposing himself and arrested Geri.
¶5 Geri was charged with one count of misdemeanor indecent
exposure to victim R., and one count of felony indecent exposure to R.’s
minor child. R. testified that she and her child were visibly offended by the
display. Geri represented himself at trial, testifying that he did, in fact,
expose himself to R. and her child, and had walked “with [his] penis out”
from roughly the intersection of Scottsdale Road and Thomas Road to the
donut shop. Nonetheless, he contended that his attire choice was
“deliberate” and that he “had no intention of offending anyone or acting in
an offensive way.” Further, he testified that he attempted to defend his
“right” when speaking with R. in a “calm and civil manner”
notwithstanding her offense at his state of undress. His “sole intention was
to exercise a perceived freedom of attire.” The jury found Geri guilty on
both counts, and Geri was sentenced to three years’ probation.
2
STATE v. GERI
Decision of the Court
¶6 We have jurisdiction over Geri’s timely appeal pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031 and -4033(A).
DISCUSSION
¶7 Geri makes three primary arguments on appeal. We reject
each in turn.
I. There is no constitutional right to public nudity.
¶8 Geri’s first argument is that the state of Arizona has no valid
“public nudity” law. Indeed, he contends that the United States Supreme
Court has held that “the individual’s right to public nudity is a non-
enumerated constitutional right.” However, he notes that this right may be
overcome by the state passing an “explicit law containing PUBLIC NUDITY
in the title of the law.” It is not clear whether Geri means to argue that
Arizona’s prohibition is unconstitutionally vague or instead that the law
prohibiting public nudity is itself unconstitutional. It matters little: neither
proposition is supported by law.
¶9 We review de novo whether a statute is constitutional. State v.
Francisco, 249 Ariz. 101, 103, ¶ 8 (App. 2020). We begin with the statute’s
text, with the defendant bearing the burden of showing that the challenged
law is unconstitutional. Id. at ¶ 8.
¶10 A person commits indecent exposure under Arizona law if he
“exposes his . . . genitals . . . and another person is present, and the
defendant is reckless about whether the other person, as a reasonable
person, would be offended or alarmed by the act.” A.R.S § 13-1402(A).
¶11 To the extent that certain forms of expression—such as nude
dancing—are protected, that protection is only “within the outer ambit” of
the First Amendment when presented to a willing audience, rather than an
unenumerated right found somewhere in substantive due process under
the Fifth or Fourteenth Amendment. See City of Erie v. Pap’s A.M., 529 U.S.
277, 289 (2000); U.S. Const. amends. I, V, XIV; see also Washington v.
Glucksberg, 521 U.S. 702, 720-21 (1997) (“[T]he Due Process Clause specially
protects those fundamental rights and liberties which are, objectively,
deeply rooted in this Nation’s history and tradition.”) (citation and internal
quotation marks omitted). A right to walk to the neighborhood donut shop,
fly down, is absent from our traditions of liberty. As Justice Scalia observed
in Barnes v. Glen Theatre, Inc., “[p]ublic indecency—including public
nudity—has long been an offense at common law.” 501 U.S. 560, 573 (1991)
3
STATE v. GERI
Decision of the Court
(Scalia, J., concurring) (citing 50 Am. Jur. 2d Lewdness, Indecency, and
Obscenity 449, 472-74 (1970)).
¶12 Merely “[b]eing in a state of nudity” is not ordinarily
expressive conduct entitled to First Amendment protection. City of Erie, 529
U.S. at 289 (internal quotation marks omitted). Even when nudity is part of
expressive conduct the Supreme Court has nonetheless held that states
have important interests that can justify incidental restrictions on free
expression. See e.g. Barnes, 501 U.S. at 569, 571-72 (upholding Indiana public
indecency statute passed to “protect morals and public order”); City of Erie,
529 U.S. at 296-302 (upholding the City of Erie’s ban on public nudity as
applied to nude dancing).
¶13 The conduct Geri engaged in is not constitutionally protected.
Geri admitted that he “deliberately” walked in public with his penis and
testicles exposed. This mere state of undress, without communicative
content, is beyond the protections of the First Amendment. City of Erie, 529
U.S. at 289. Arizona law prohibits the open display of genitals,
notwithstanding Geri’s choice of attire. See A.R.S. § 13-1402(A). A “general
prohibition on public nudity”—such as Arizona’s—is facially constitutional
and was applied appropriately to Geri’s conduct. See City of Erie, 529 U.S. at
290.
¶14 To the extent Geri’s argument rests on the title of the law, the
title of a law is irrelevant to whether the elements of an offense are
unconstitutionally vague. See State v. Veloz, 236 Ariz. 532, 537, ¶ 13 (App.
2015). “Read in context, § [13-1402(A)] fairly lets a person of ordinary
intelligence know what conduct it covers.” Francisco, 249 Ariz. at 104, ¶ 11.
¶15 Geri has not met his burden to show either vagueness or
unconstitutionality. See id. at 103-104, ¶¶ 8-11. We find no error here.
II. The superior court did not err in instructing the jury concerning
reckless disregard.
¶16 Geri next challenges the jury instructions given by the
superior court. He argues that the court was required to instruct the jury
that “a separate act beyond PUBLIC NUDITY” was required to find him
guilty of indecent exposure. The superior court accurately instructed the
jury as to the law.
¶17 We review a superior court’s ruling on jury instructions for
an abuse of discretion. State v. Almaguer, 232 Ariz. 190, 193, ¶ 5 (App. 2013)
4
STATE v. GERI
Decision of the Court
(citation omitted). But we review whether an instruction properly stated
the law de novo. State v. Payne, 233 Ariz. 484, 505, ¶ 68 (2013).
¶18 There are three elements comprising the offense of public
indecency: 1) a person exposes his genitals; 2) with another person present;
3) with reckless disregard for whether the other person, as a reasonable
person, would be offended or alarmed by the act. A.R.S § 13-1402(A). A
person acts recklessly when the person “is aware of and consciously
disregards a substantial and unjustifiable risk that the result will occur.”
A.R.S. § 13-105(10)(c). This “risk must be of such nature and degree that
disregard of such risk constitutes a gross deviation from the standard of
conduct that a reasonable person would observe in the situation.” Id.
¶19 Our review of the jury instructions indicates that the court
accurately stated the law in instructing the jury by reading the elements of
the offense, and definition of “reckless,” verbatim from the correct statutes.
See A.R.S. §§ 13-105(10)(c); 13-1402(A). There was no error.
III. The State produced sufficient evidence of reckless disregard.
¶20 Geri argues that the State relied solely on his exposure
without proving the third element of reckless disregard for whether the
other person, as a reasonable person, would be offended or alarmed by the
act. We review whether a conviction is based on insufficient evidence de
novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). “[T]he relevant question
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at ¶ 16 (citation
omitted).
¶21 Contrary to Geri’s contention, reckless disregard does not
require “clearly distinct actions like sexual gratification or gratuitous draws
of attention.” We have expressly rejected the view that the State must
present evidence under indecent exposure statute that the defendant acted
with a “sexual interest” or was “sexually motivated.” State v. Sandoval, 175
Ariz. 343, 345 (App. 1993).
¶22 On our review of the record, Geri’s argument is patently
meritless. A reasonable person, turning around in a line at a donut shop
only to find exposed genitals within an arm’s length of their minor child
would be both alarmed and offended. That Geri appeared naked in a donut
shop after walking down the “second busiest roadway in the city of
Scottsdale” and his response to R.’s objection show he was aware of and
consciously disregarded the risk that he would alarm or offend others. That
5
STATE v. GERI
Decision of the Court
R. rebuked him and shielded her child from Geri’s display is further
evidence that a reasonable person would be alarmed at his conduct. See id.
at 346 (“The fact that the [victims] were scared by defendant's conduct itself
provides some evidence that a reasonable person would be alarmed by such
conduct.”). A reasonable trier of fact could find Geri recklessly disregarded
whether a reasonable person would be offended at his display beyond a
reasonable doubt.
CONCLUSION
¶23 We affirm Geri’s convictions and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
6