United States v. Graham , 2002 CAAF LEXIS 95 ( 2002 )

UNITED STATES, Appellee
v.
Quinton T. GRAHAM, Corporal
U.S. Marine Corps, Appellant
No. 01-0227
Crim. App. No. 99-0630
United States Court of Appeals for the Armed Forces
Argued October 4, 2001
Decided January 30, 2002
CRAWFORD, C.J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and BAKER, JJ., and SULLIVAN, S.J., joined.
Counsel
For Appellant: Major Charles C. Hale, USMC (argued and on
brief).
For Appellee: Captain Danny R. Fields, USMC (argued); Colonel
Marc W. Fisher, Jr., USMC, Lieutenant Commander Philip L. Sundel,
JAGC, USNR, and Lieutenant William C. Minick, JAGC, USNR (on
brief).
Military Judges: R. L. Rodgers and S. A. Jamrozy
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Graham, No. 01-0227/MC
Chief Judge CRAWFORD delivered the opinion of the Court.
Contrary to his pleas, appellant was convicted by a special
court-martial composed of officer and enlisted members of
attempted indecent assault and indecent exposure, in violation of
Articles 80 and 134, Uniform Code of Military Justice (UCMJ), 10
USC §§ 880 and 934. The members sentenced him to a bad-conduct
discharge and reduction to pay grade E-3, and the convening
authority approved the sentence and further reduced appellant to
E-1 in accordance with Article 58a, UCMJ, 10 USC § 858a.
Thereafter, the United States Navy-Marine Corps Court of Criminal
Appeals affirmed the findings and sentence. 54 M.J. 605 (2001).
On appellant’s petition, we granted review of the following
issue:
WHETHER THE LOWER COURT ERRED IN FINDING
THE EVIDENCE FACTUALLY AND LEGALLY
SUFFICIENT TO PROVE APPELLANT GUILTY
OF INDECENT EXPOSURE IN HIS PRIVATE
BEDROOM AFTER COMING OUT OF THE SHOWER.[1]
We hold that appellant was properly convicted of indecent
exposure, and in doing so, we expressly make clear what was
always implicit in United States v. Shaffer, 46 M.J. 94 (1997),
regarding the definition of “public view.” Applying that
definition, we hold that the evidence is legally sufficient. See
United States v. Turner, 25 M.J. 324 (CMA 1987)(legal sufficiency
exists when, “considering the evidence in the light most
1
Appellant asserts that the evidence is factually as well as legally
insufficient, inviting us to reweigh the evidence. “Such consideration of the
factual sufficiency of the evidence is outside the statutory parameters of our
review” under Article 67, UCMJ, 10 USC § 867. United States v. Holt, 52 M.J.
173, 186 (1999).
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United States v. Graham, No. 01-0227/MC
favorable to the prosecution, a reasonable factfinder could have
found all the essential elements beyond a reasonable doubt”).
DISCUSSION
The offense of indecent exposure is defined as follows:
(1) That the accused exposed a certain part
of the accused’s body to public view in
an indecent manner;
(2) That the exposure was willful and wrongful;
and
(3) That, under the circumstances, the accused’s
conduct was to the prejudice of good order
and discipline in the armed forces or was
of a nature to bring discredit upon the
armed forces.
Para. 88b, Part IV, Manual for Courts-Martial, United States
(2000 ed.).2 Thus, in order for an indecent exposure conviction
to be legally sufficient, the evidence must show the exposure
was, among other things, “willful,” “indecent,” and in “public
view.” The evidence demonstrates appellant’s exposure was all of
these things.
2
All Manual provisions are identical to the ones in effect at the time of
appellant’s court-martial.
3
United States v. Graham, No. 01-0227/MC
Before turning to the limited question actually presented by
this case, it is important first to note what this case is not.
It is not about whether appellant’s exposure was willful.
Appellant invited his child’s fifteen-year-old babysitter into a
bedroom in his home, and once she was there, he allowed a
towel that was wrapped around his waist to drop to the floor,
thus exposing his penis to her. The Court of Criminal Appeals
found this act was willful. 54 M.J. at 610. Appellate defense
counsel acknowledged as much during oral argument, and because
this finding of fact by the lower court is not “clearly erroneous
or unsupported by the record of trial,” we accept it. See United
States v. Allen, 53 M.J. 402, 406 (2000); United States v. Richter,
51 M.J. 213, 220 (1999).
Nor is this case about whether appellant’s exposure was
indecent. He did not expose himself to his spouse or girlfriend,
or to a family member or other person involved with him in such a
way that a given exposure might not be indecent. Appellant
exposed himself to a fifteen-year-old girl who was completely
unrelated to and uninvolved with him, and who neither invited nor
consented to his conduct. Thus, appellant does not contest the
legal sufficiency of the evidence relating to the indecency
element of his offense, and we hold that the court below did not
err in concluding appellant’s exposure was indecent.
The only question this case involves is whether appellant’s
conviction for willfully and indecently exposing himself to a
minor must be set aside because it occurred in his bedroom, as
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United States v. Graham, No. 01-0227/MC
opposed to some other, more public location. This question
arises because the Manual states the offense of indecent exposure
occurs only when it takes place in “public view.” But the Manual
does not define “public view,” and appellate defense counsel
argues that whatever its meaning, it does not extend to a bedroom
in one’s home. We disagree.
In support of his argument, appellate defense counsel relies
on United States v. Ardell, 18 USCMA 448, 40 CMR 160 (1969), but
reliance on Ardell is misplaced. In Ardell, the victim testified
the appellant “showed [her] his thing” in the garage of his home
when no one else was around. She said nothing about the manner
in which this occurred, and she testified that the appellant said
nothing to her at all. The appellant denied the allegation but
admitted that on one occasion, there were children in his garage
without his knowledge who saw him naked when he walked to his
kitchen, and on another occasion, there were children in his
hallway without his knowledge who saw him naked when he exited
his bedroom. Id. at 449, 40 CMR at 161.
The Ardell court found the evidence legally insufficient to
sustain a conviction for indecent exposure, stating:
[E]ven assuming, arguendo, that both were
in the garage at the time of the incident,
since the accused said nothing to her, and
made no gestures, there is no evidence that
he was even aware of her presence. . . .
Absent some evidence that the accused knowingly
exposed himself while in his own house, we are
constrained to hold the evidence insufficient.
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United States v. Graham, No. 01-0227/MC
Id. at 450, 40 CMR at 162. In other words, Ardell is a
“willfulness” case, not a “public view” case. It rests entirely
on the fact there was no proof the appellant knew the victim was
in the garage. It says nothing about the “public view” element
and, thus, lends no support to appellate defense counsel’s
argument. To the contrary, by resolving the case on the basis of
the willfulness element, the Ardell court implicitly recognized
that exposing oneself “while in [one’s] own house” can constitute
the offense of indecent exposure, as long as it is willful.
The same holds true for our more recent decision in United
States v. Shaffer. There, the appellant “exposed himself while
standing in his open garage[.]” 46 M.J. at 97. We upheld his
conviction for indecent exposure, noting:
The offense of indecent exposure does not
just apply to exposures that take place on
traditionally public lands or in traditionally
public buildings. The offense also applies
to indecent exposures that occur in places
so public and open, including privately-owned
homes, that they are certain to be observed by
the general population.
Id. (emphasis added)(internal quotations omitted). With respect
to the willfulness element, we said that
the required criminal intent for indecent
exposure “is usually established [1] by
some action by which a defendant draws
attention to his exposed condition or [2] by
a display in a place so public that it must be
presumed it was intended to be seen by others.”
United States v. Stackhouse, 16 USCMA 479, 481,
37 CMR 99, 101, quoting Hearn v. District of
Columbia,178 A.2d 434, 437 (D.C.Mun.App. 1962).
Id. at 96. We also said:
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United States v. Graham, No. 01-0227/MC
To establish intent where the act does not
occur in a public place or otherwise where
it is certain to be observed, some evidence
further than the act itself must be presented.
Ordinarily, intent is established [1] by
evidence of motions, signals, sounds or other
actions by the accused designed to attract
attention to his exposed condition, or
[2] by his display in a place so public and
open that it must be reasonably presumed that
it was intended to be witnessed.
Id., quoting Stackhouse, supra at 482, 37 CMR at 102, quoting
State v. Perry, 28 N.W.2d 851, 854 (Minn. 1947)(emphasis added).
Thus, in Shaffer and Stackhouse, this Court recognized two
distinct types of indecent exposure: (1) exposure in a public
place, the very fact of which tends to prove it was willful, and
(2) exposure “that does not occur in a public place” but which,
instead, occurs in a nonpublic place such as one’s “privately-
owned home.” The mere fact of this second type of exposure does
not prove it was willful, but it may still constitute the offense
of indecent exposure if other evidence proves that it was.
This second type of indecent exposure is what we deal with
today. Appellant exposed himself in the bedroom of his home –
clearly a nonpublic place. But he did so “willfully. . .[b]y
inviting his babysitter into the bedroom and then allowing his
towel to drop in front of her.” 54 M.J. at 610. In this way, he
made certain that an unsuspecting and uninterested member of the
general population had no choice but to see him naked. That is
indecent exposure, and as a result, appellant was properly
convicted under this Court’s precedent.
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United States v. Graham, No. 01-0227/MC
This result is consistent with the majority, state court
approach to this crime. In Shaffer, “we observed that ‘[o]ur
decisions addressing prosecutions for indecent exposure have
generally relied on the state court decisions representing the
majority approach to this crime.’” 46 M.J. at 96, quoting United
States v. Choate, 32 M.J. 423, 425 n.3 (CMA 1991). Those decisions
make clear that the focus of this offense is on the victim, not
on the location of the crime, and that the offense is committed
regardless of whether it takes place in the bedroom or on the
street. This is because the purpose of criminalizing public
indecency “is to protect the public from shocking and
embarrassing displays of sexual activities. A person need not be
in a public place to be a member of the public.” See State v.
Whitaker, 793 P.2d 116, 120 (Ariz.App. 1990), quoting People v.
Legal, 321 N.E.2d 164, 168 (Ill.App. 1974)(emphasis added).
Thus, the majority of state courts addressing the specific
question before us, i.e. whether a given exposure took place in
“public view,” have held that a willful and indecent exposure in
the bedroom of a home could take place in “public view” or in a
“public place” for purposes of the applicable indecency statute.
See Greene v. State, 381 S.E.2d 310, 311 (Ga.App. 1989)(exposure
to teenage babysitter in bedroom was public indecency, where
“public place” requirement was defined as “any place where
conduct involved may reasonably be expected to be viewed by
people other than ... family or household”); Whitaker, supra at
119 (exposure to minor daughters in bedroom can be public sexual
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United States v. Graham, No. 01-0227/MC
indecency, where “public” was not defined by statute but court
construed it to mean “a place where the actor might reasonably
expect his conduct to be viewed by another”); see also Legal,
supra at 167 (exposure in dining room observed from outside the
home was public indecency, where “public place” requirement was
defined as “any place where the conduct may reasonably be
expected to be viewed by others”).
The only case to the contrary cited by appellate defense
counsel is State v. Romero, 710 P.2d 99 (N.M.Ct.App. 1985). In
Romero, the defendant exposed himself to his girlfriend’s minor
daughter while in the living room of his home, and to her other
minor daughter while in the kitchen of his home. He was
convicted of two counts of indecent exposure, but the Court of
Appeals reversed, concluding that his crimes did not take place
in “public view,” as required by the statute there at issue. Id.
at 103.
At the outset, we note that Romero represents the minority
view, which we generally decline to follow. See Choate, 32 M.J. at
425 n.3. More importantly, however, we are unpersuaded by its
logic. As originally enacted, the statute in Romero criminalized
indecent exposure “in or upon the streets or other public
places.” However, it was later amended by deleting that language
and providing that indecent exposure consists of “knowingly and
indecently exposing the private parts or sexual organs of a
person to the public view.” 710 P.2d at 102.
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United States v. Graham, No. 01-0227/MC
The Romero court concluded that by changing the requirement
from “public place” to “public view,” the legislature
“criminalize[d] indecent exposure which occurs in a location
rendering it subject to ‘public view.’” Id. It then concluded
that because “public” meant “a place accessible or visible to the
public,” the new “public view” requirement meant the offense had
to occur “in a place accessible or visible to the general
public,” which the Romero court concluded did not include the
defendant’s living room and kitchen. Id. at 102-03.
We express no opinion regarding the Romero court’s
interpretation of New Mexico law. We simply note that because
Romero involved statutory modifications not at issue here, which
the court described as possibly “inadvertent” and producing an
“incongruity,” id. at 103, Romero does not persuade us that its
result is the correct one under the UCMJ. The question we must
answer is what does “public view” mean in paragraph 88b(1) of
Part IV of the Manual, as compared to “public place”? The answer
to that, it seems to us, is clear.
“Public place” means a location that is public, and in that
context, “public” is an adjective that describes the place as one
“accessible or visible to the general public,” to use the Romero
court’s definition. “Public view,” on the other hand, must mean
something else. In our opinion, consistent with a focus on the
victims and not the location of public indecency crimes, “public
view” means “in the view of the public,” and in that context,
“public” is a noun referring to any member of the public who
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United States v. Graham, No. 01-0227/MC
views the indecent exposure. It is this definition of “public
view” that governs the offense of indecent exposure in the
military. See Legal, 321 N.E.2d at 168 (recognizing the
difference between “public view” and “public place”; where “there
is a reasonable expectation of public view . . . the acts can be
held to have occurred in a ‘public place’”).
All of the above notwithstanding, appellate defense counsel
argues appellant was wrongly convicted because his acts more
properly constituted the offense of indecent liberties with a
child. This offense can occur when “one who with the requisite
intent exposes one’s private parts to a child under 16 years of
age.” Para. 87c(2), Part IV, Manual, supra. Because the victim
in this case was fifteen years old, appellate defense counsel
argues appellant should have been charged with indecent liberties
with a child.
The problem with this argument, however, is that whether
appellant was properly convicted of indecent exposure depends
solely on the meaning of “public view” and not on the age of the
victim. Had the victim here been seventeen, the offense could
not have been indecent liberties because that offense exists only
when the victim is under sixteen. Para. 87b(2)(d), supra. In
that event, the question would still be whether appellant’s
offense was indecent exposure, and the answer would still be yes,
for the reasons set out above. That said, if he would be guilty
of indecent exposure when the victim was seventeen, he is guilty
of it when she is fifteen. The fact that he could alternatively
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United States v. Graham, No. 01-0227/MC
have been charged with committing indecent liberties, which
incidentally carries a greater maximum punishment than indecent
exposure,3 is irrelevant.
DECISION
The decision of the United States Navy-Marine Corps Court of
Criminal Appeals is affirmed.
3
See paras. 87e and 88e, Part IV, Manual for Courts-Martial, United States
(2000 ed.)(seven years maximum confinement for indecent liberties; six months
for indecent exposure).
12