                          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 MJ 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 MJ 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 MJ 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 MJ
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.

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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 MJ 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 MJ 402, 406 (2000); United States v. Richter,

51 MJ 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 MJ 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 MJ 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 MJ at 96, quoting United

States v. Choate, 32 MJ 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 MJ 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).

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