212 Md. at 605-06, 130 A.2d at 579-80. The State, therefore, contends that indecent exposure can occur within the confines of a private building even without evidence indicating that an exposure could be viewed from outside the building, citing State v. Pallman, 5 Conn. Cir.Ct. 202, 248 A.2d 589 (1968), People v. Legel, 24 Ill.App.3d 554, 321 N.E.2d 164 (1974), and Greene v. State, 191 Ga.App. 149, 381 S.E.2d 310 (1989), in support. The State further maintains that the characterization of a "private" home, versus a public place, for purposes of the Fourth Amendment protection against unreasonable searches and seizures is in no way applicable to the case at bar because this case does not implicate those protections, nor did the exposure occur in Wisneski's home, where he might have a legitimate expectation of privacy.
Id. at 424, 299 S.E.2d at 575. In People v. Legel, 24 Ill. App.3d 554, 321 N.E.2d 164 (1974), the defendant was convicted of public indecency based on conduct which occurred in his dining room. On appeal, the defendant argued that his conviction could not stand because the interior of his dining room was not a "public place."
Cases from other states involving differently worded statutes addressing the same or similar crimes have required more than a possibility that the offensive conduct will be observed, particularly where the appellant took steps to remain unseen. For example, in People v. Legel (1974) 24 Ill.App.3d 554 [321 N.E.2d 164], the court stated: โ โIt is the probability of public view that is crucial rather than the ownership or use of the particular real estate upon which the act occurs. For example, a person standing nude before a lighted window of his private apartment at night, adjacent to a well traveled public sidewalk would be, for purposes of this statute, in a public place.
Cases from other states involving differently worded statutes addressing the same or similar crimes have required more than a possibility that the offensive conduct will be observed, particularly where the appellant took steps to remain unseen. For example, in People v. Legel (1974) 24 Ill. App.3d 554, 321 N.E.2d 164, the court stated: "It is the probability of public view that is crucial rather than the ownership or use of the particular real estate upon which the act occurs. For example, a person standing nude before a lighted window of his private apartment at night, adjacent to a well traveled public sidewalk would be, for purposes of this statute, in a public place.
In adopting these statutes, state legislatures acted to protect public decency and morality โ not to prohibit conduct with communicative elements. See Duvallon v.District of Columbia, 515 A.2d 724, 729 (D.C.Ct.App. 1986) (Pryor, C.J., dissenting) (purpose is "to protect the public from being confronted in public places by annoying, shocking, or embarrassing displays of nudity or sexual activity") (citing 2 J. BISHOP, New Criminal Law, ยง 1125, at 671 (8th ed. 1892));People v. Legel, 24 Ill. App. 3d 554, 557, 559 (1974) (purpose of Illinois statute is "to protect the public from shocking and embarrassing displays") (citing legislative history). Section 5901 is of a piece with these innumerable statutes.
Townsend v. State , 750 N.E.2d 416, 418 (Ind. Ct. App. 2001) ("[The purpose of the statute is] to protect the non-consenting viewer who might find such a spectacle repugnant." (alteration in original) (citation omitted) (internal quotation marks omitted)); People v. Legel , 24 Ill.App.3d 554, 321 N.E.2d 164, 168 (1974) ("The purpose of [the public-indecency statute] is to protect the public from shocking and embarrassing displays of sexual activities."). Given the statute's purpose of remedying the mischief of people lewdly exposing themselves to others, limiting a definition of "present" to a shared geographical location would undermine the statute's ability to protect a non-consenting viewer from being exposed to vulgar, sexual conduct.
In no reported case under section 11-9 has the State attempted to prosecute a defendant for activities within the scope of first amendment concerns. (See, e.g., People v. Giacinti (1976), 44 Ill. App.3d 699; People v. Legel (1974), 24 Ill. App.3d 554; People v. Mikota (1971), 1 Ill. App.3d 114; People v. Tudla (1969), 110 Ill. App.2d 119.) Because section 11-9 does not apply to activities that are primarily expressive in nature and which may not be prohibited absent a finding that they are obscene within the constitutional standard, defendant's contention that the statute is overbroad must be rejected.
Commonwealth v. Davidson, 220 Pa. Super. 451, 289 A.2d 250 (1972); see generally Byous v. State, 121 Ga. App. 654, 175 S.E.2d 106 (1970); Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976). In People v. Legel, 24 Ill. App.3d 554, 321 N.E.2d 164 (1974), the Appellate Court for the Second District of Illinois reviewed a conviction under a statute punishing "public indecency" and defined "public place" as "any place where the conduct may reasonably be expected to be viewed by others." The court in dicta cited from the Legislative Committee Comment on the statute:
. . . We hold, therefore, that the victim's apartment was a "public place" as to this defendant under Code Ann. ยง 26-401(m).People v. Legel, 2A Ill.App.3d 554, 321 N.E.2d 164 (1974), is also noteworthy. There, a defendant was arrested for indecent exposure that occurred when he exposed his genitals while standing on the dining room table in front of a window of his home.
Rather, the law is well settled that a conviction will be affirmed on appeal despite the existence of errors not reaching constitutional dimension unless the defendant can prove that the errors affected the result and denied him a fair trial. ( People v. Scarpelli (1980), 82 Ill. App.3d 689, 697, 402 N.E.2d 915, cert. denied (1981), 450 U.S. 915, 67 L. Ed. 2d 340, 101 S. Ct. 1357; People v. Legel (1974), 24 Ill. App.3d 554, 559, 321 N.E.2d 164.) In contrast, constitutional errors will require reversal unless the State demonstrates that the error was harmless beyond a reasonable doubt.