It was necessary, therefore, he says, that the "jury should have had a specific instruction" so that it might "properly consider the issue of identification." It is true, as the defendant points out, that in Noblett v. Commonwealth, 194 Va. 241, 247, 72 S.E.2d 241, 244-45 (1952), we reversed for the trial court's refusal to grant a similar instruction where, as here, identity of the accused was a vital issue. And it is likewise true that in Noblett, as here, the jury was told, in other instructions, that the accused was presumed to be innocent and that his guilt must be established beyond a reasonable doubt.
Id. at 699, 508 S.E.2d at 353 (emphasis added). In the second case, Noblett v. Commonwealth, 194 Va. 241, 244, 72 S.E.2d 241, 243 (1952), our Supreme Court relied on common law principles to support a conviction of indecent exposure. The Court in Holley cited Noblett for the proposition that "[a]n indecent exposure must be either in the actual presence and sight of others, or in such a place or under such circumstances that the exhibition is liable to be seen by others.
The cases he relies upon, however, do not once mention or discuss the word display as used in Code ยง 18.2-387. See, e.g., Wicks v. Charlottesville, 215 Va. 274, 274-75, 208 S.E.2d 752, 753-54 (1974) (interpreting local ordinance stating that no "person shall expose himself"); Noblett v. Commonwealth, 194 Va. 241, 72 S.E.2d 241 (1952) (affirming a conviction on an indictment alleging that the defendant exposed himself); Siquina v. Commonwealth, 28 Va.App. 694, 697-99, 508 S.E.2d 350, 352-53 (1998) (interpreting the indecent liberties statute, which forbids exposing one's sexual or genital parts to a child). They instead focus entirely on the meaning of "expose."
At common law, indecent exposure involved intentionally exposing one's private parts in a manner that same could reasonably have been seen by members of the public.Noblett v. Commonwealth, 194 Va. 241, 244-46, 72 S.E.2d 241, 243-44 (1952) (citing definitions indicating the offense is committed where the "`act is seen or is likely to be seen'" (quoting 67 C.J.S. Obscenity ยง 5, at 25 (1950))). The Supreme Court of Virginia has recognized a definition of common law "indecent exposure" that requires "`[e]xposure to sight.'"
" Id. In Noblett v. Commonwealth, 194 Va. 241, 72 S.E.2d 241 (1952), where the defendant was charged with indecent exposure, we held that " [i]n so far as the decision in Mullins ... approves the form of the instruction [on alibi], it is overruled." Id. at 248, 72 S.E.2d at 245.
Again, potential exposure to others because of placement and time could constitute publication. In Noblett v. Commonwealth, 194 Va. 241, 72 S.E.2d 241 (1952), the defendant challenged his conviction for indecently exposing himself while sitting in a car on the side of the street based upon the fact that only one person saw him. The court affirmed the conviction, stating that at common law, it mattered not that only one person saw the defendant's conduct; rather, the determinative factor was whether, under the circumstances of the case, the defendant "could reasonably have been seen, or was likely to have been seen by persons using the street."
The defendant gave no explanation or reason for his actions, and there is no suggestion that he was acting in extremis. In Noblett v. Commonwealth, 194 Va. 241, 245, 72 S.E.2d 241, 243 (1952), Mr. Justice Eggleston, later Chief Justice, made an exhaustive examination of the authorities defining common law obscenity and in his opinion said: It was stipulated that Officer D. L. Roberts of the Charlottesville City Police Department testified that:
Code ยง 18.2-387 requires that the "obscene display or exposure" occur "in any public place, or in any place where others are present," an element not included in the indecent liberties statute. Appellant relies on Wicks v. City of Charlottesville, 215 Va. 274 (1974), and Noblett v. Commonwealth, 194 Va. 241 (1952), to support his contention that he was improperly convicted of indecent liberties because he was not in public. However, both cases address indecent exposure, not indecent liberties with a minor.
Id. See also Noblett v. Commonwealth, 194 Va. 241, 244-45, 72 S.E.2d 241, 243 (1952). The Court noted that "indecent exposure" means "'[e]xposure to sight of the private parts of the body in a lewd or indecent manner in a public place.'"
Worth noting here is that the same result would obtain under Justice Scalia's approach, as both Section 2.34 and the Virginia indecent exposure statute cover the same basic "offence" categories of lewdness and indecent exposure "generally understood to be part of the common law." Lewis, 523 U.S. at 179 (Scalia, J., concurring); see Noblett v. Commonwealth, 72 S.E.2d 241 (Va. 1952) (discussing the common-law offense of indecent exposure and "[a]cts of gross and open indecency or obscenity") (quotations omitted); see also 50 Am. Jur.2d 269 (1995) (discussing lewdness, indecency, and obscenity); 94 A.L.R.2d 1353 (1964). Seeking to avoid this result, the government offers two arguments.