Before this Court, Wisneski contends that, under the common law offense of indecent exposure, it is not the conduct of exposing oneself which the common law seeks to criminalize, but the public nature of the exposure. He argues that an indecent exposures occurs in a "public place" if, under our holding in Messina v. State, 212 Md. 602, 605-06, 130 A.2d 578, 579-80 (1957), it is "likely to be seen by a number of casual observers." Citing Messina, Regina v. Webb, 1 Den. 338 (1848), and State v. Goldstein, 72 N.J.L. 336, 62 A. 1006 (1906), he argues that, in this case, "casual observers" were those individuals who may have been passing by the outside of Penfield's home, and not those inside the home as invited guests.
Although appellant acknowledges that "[t]he term public place 'depends on the circumstances of the case,'" he avers that "generally [it has] been held to include only those places where exposure 'is likely to be seen by a number of casual observers.' Messina v. State, 212 Md. 602, 605, 130 A.2d 578 (1957) (emphasis added). . . .
Id. at 589- 93, 602; see Messina v. State, 212 Md. 602, 606 (1957); Neal v. State, 45 Md.App. 549 (1980); Dill v. State, 24 Md.App. 695 (1975). Citing Messina, where the defendant exposed himself to passing teenage pedestrians while sitting in a parked vehicle, Wisneski argued the evidence was not sufficient to convict him because "an indecent exposure[] occurs in a 'public place' if . . . it is 'likely to be seen by a number of casual observers'" who "may have been passing by the outside of [the host's] home, and not those inside the home as invited guests." Wisneski, 398 Md. at 587 (quoting Messina, 212 Md. at 605-06).
Thus, its main elements were the wilful exposure, the public place in which it was performed, and the presence of persons who saw it. Wisneski 398 Md. at 591, 921 A.2d 273 (quoting Dill v. State, 24 Md.App. 695, 698-700, 332 A.2d 690 (1975)); see also Messina v. State, 212 Md. 602, 605, 130 A.2d 578 (1957) ("Indecent exposure in a public place in such a manner that the act is seen or is likely to be seen by casual observers is an offense at common law."). In 2002, the Legislature enacted C.S. § 8-803, which provides, in pertinent part, as follows:
Article 27, § 335A now reads: "Every person convicted of the common-law crime of indecent exposure is guilty of a misdemeanor and shall be punished by imprisonment for not more than three years or a fine of not more than $1,000, or both." The common law crime of indecent exposure was described by this Court in Messina v. State, 212 Md. 602, 606, 130 A.2d 578 (1956): Indecent exposure, to amount to a crime, must have been done intentionally.
Thus, the intent may be inferred from the conduct of the accused and the circumstances and environment of the occurrence. Messina v. State, 212 Md. 602, 606, 130 A.2d 578, 580 (1957); Peyton v. District of Columbia, 100 A.2d 36, 37 (D.C. Mun. App. 1953); State v. Martin, 125 Iowa 715, 101 N.W. 637 (1904). The criminal intent necessary for a conviction of indecent exposure is usually established by some action by which the defendant either (1) 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.
The crime's mens rea consists of the general intent to expose oneself—not the specific intent to do so for a particular purpose. Ricketts v. State, 291 Md. 701, 713 (1981) ("Indecent exposure is a general intent crime that includes within its scope an innumerable variety of offenses, including acts that are reckless or negligent."); Messina v. State, 212 Md. 602, 606 (1957) ("Indecent exposure, to amount to a crime, must have been done intentionally. ... The essential intent is a general and not a specific intent.").
When the defendant exposes himself at such a time and place that a reasonable person knows or should know that his or her act will be observed by others, his acts are not accidental and his intent may be inferred. Messina [v. State, 212 Md. 602, 606 (1957)]. The intent element itself is infused with a "public" element in the distinction between accidental and wilfulness, as was explored in Van Houten v. State, 46 N.J.L. 16 (1884), a case in which the Supreme Court of New Jersey interpreted English common law, when faced with the situation in which the defendant had urinated outside in a place visible to the residents of several homes.
In light of the "attendant facts" involved, the Court concluded that the sentence imposed was within the discretion of the trial court and did not violate the constitutional provision against cruel and unusual punishment. In Messina v. State, 212 Md. 602, 130 A.2d 578 (1957), the appellant contended that a four-month sentence for the common-law offense of indecent exposure constituted cruel and unusual punishment. The court held that in light of the "corrupting effect" of appellant's act, the sentence "could scarcely be held to have been beyond a reasonable discretion, and certainly could not under the limitations of the decisions of this Court be declared either cruel or unusual."
He had argued to the trial court that the indecent exposure charge should fall as a matter of law because the conduct did not occur in a public place. The trial court, sitting non-jury, acquitted Neville on the indecent exposure count by reference to Messina v. State, 212 Md. 602, 605, 130 A.2d 578, 579-80 (1957). It reasoned that an essential element of the crime of indecent exposure was that the exposure must be seen or be likely to be seen by a casual observer and then held that Officer Brewer, who was "required to literally stalk the Defendant . . . was not a 'casual observer' as defined in Messina."