Edward Dorsey Ellis Rollins, III v. State of Maryland, No. 10, September Term, 2017.
Opinion filed on March 29, 2018, by Berger, J.

                                      HEADNOTES

CRIMINAL LAW - JURY INSTRUCTIONS - INDECENT EXPOSURE

The elements of indecent exposure are: (1) a public exposure; (2) made willfully and
intentionally, as opposed to inadvertently or accidentally; (3) which was observed, or was
likely to have been observed, by one or more persons, as opposed to performed in secret,
or hidden from the view of others. There is not an additional element of indecent exposure
requiring that a viewer be shocked and/or offended by the exposure.

CRIMINAL LAW - JURY INSTRUCTIONS - DEFINITIONS FOR SEPARATE
OFFENSES - DISORDERLY CONDUCT - INDECENT EXPOSURE

When a jury was instructed on the separate elements of the offenses of indecent exposure
and disorderly conduct, each of which required an element relating to the “public” or to a
“public place,” the circuit court did not abuse its discretion by declining to propound a
clarifying instruction specifically explaining that the statutory definition of “public place”
provided for the offense of disorderly conduct should not be applied to the “public” element
of indecent exposure.

CRIMINAL LAW - JURY INSTRUCTIONS - DISORDERLY CONDUCT

The circuit court did not abuse its discretion by including in its instruction on disorderly
conduct the legislatively enumerated examples of “public places” set forth in Md. Code
(2002, 2012 Repl. Vol.), § 10-201 of the Criminal Law Article.
Circuit Court for Worcester County
Case No. 23-K-16-000241

                                                    REPORTED

                                       IN THE COURT OF SPECIAL APPEALS

                                                 OF MARYLAND


                                                       No. 10

                                               September Term, 2017

                                     ______________________________________



                                      EDWARD DORSEY ELLIS ROLLINS, III

                                                         v.

                                             STATE OF MARYLAND


                                     ______________________________________


                                          Berger,
                                          Beachley,
                                          Thieme, Raymond G., Jr.
                                           (Senior Judge, Specially Assigned),

                                                       JJ.
                                     ______________________________________

                                               Opinion by Berger, J.
                                     ______________________________________


                                          Filed: March 29, 2018
       Following a jury trial, Edward Dorsey Ellis Rollins, III (“Rollins”), appellant, was

convicted in the Circuit Court for Worcester County of one count of indecent exposure and

one count of disorderly conduct based upon events that occurred on June 22, 2016. Rollins

received a sentence of ninety days’ incarceration, all of which was suspended. The court

ordered that Rollins serve eighteen months of supervised probation.

       Rollins raises three issues on appeal, which we have rephrased and consolidated as

two issues as follows:

              1. Whether the circuit court committed reversible error with
                 respect to its jury instruction on the elements of the crime
                 of indecent exposure.

              2. Whether the circuit court committed reversible error with
                 respect to its instruction that, in order to convict Rollins of
                 disorderly conduct, the State was required to prove that
                 Rollins “acted in a public place or public conveyance.”

For the reasons explained herein, we shall affirm.

                               FACTS AND PROCEEDINGS

       Many of the underlying facts relating to Rollins’s criminal conviction are unrelated

to the limited issues before us in this appeal. We set forth the facts relevant to this appeal,

as well as limited additional facts in order to provide the appropriate context for our

consideration of the issues.

       The events giving rise to this appeal occurred in Ocean City, Maryland on

June 21-22, 2016. Karen Lynn, Lisa Smith, Glorilyn Rowe, and Nancy Schrey were

visiting Ocean City and staying at the Atlantis condominium complex. During the same

time period, Rollins was a guest at the Clarion Hotel, which is adjacent to the Atlantis.
       At around 12:00 p.m. on June 21, Lynn and Smith were on the enclosed balcony of

their condominium unit. Rowe and Schrey did not arrive until later that evening. From

their balcony, Lynn and Smith observed a naked man, later determined to be Rollins, in

front of an open sliding glass door in a hotel room at the adjacent Clarion Hotel. The

women initially believed that Rollins had mistakenly walked in front of the sliding glass

door without realizing that the door was open and that he could be seen from outside.

Subsequently, however, Rollins opened the screen door and “looked right over at” the

women. The women then observed Rollins “holding” and “stroking” his penis while

making eye contact with the women. The women estimated that Rollins continued to

masturbate for approximately fifteen minutes.1 Smith contacted the Clarion Hotel to

inform them that there was a gentleman standing naked at his balcony window. The women

photographed Rollins, intending to show the photographs to the Clarion manager so that

hotel management would “make him stop.”

       That evening, Rowe and Schrey arrived at the Atlantis condominium. All four

women testified as to what they observed the following afternoon, on June 22, 2016. At

approximately 2:30 p.m., the women again observed Rollins naked in front of his open

sliding glass door. Rollins “looked like [he was] posing,” “rubb[ed] his butt,” and “ben[t]

over.” At some point, Rollins sat down on a piece of furniture in front of the open sliding




       1
         The women did not see Rollins ejaculate, but “assumed he did because he would
grab a towel or a pillow.”

                                            2
glass door and masturbated. The women could see that Rollins had an erection at this time.

Rollins had “his legs really far apart” and was “looking right at” the women.

       The women testified that Rollins masturbated in front of the open sliding door on

multiple occasions throughout the afternoon. Lynn testified that she observed Rollins

masturbating twice that afternoon. Smith testified that she observed Rollins masturbating

on “three separate occasions,” while Rowe and Schrey each testified that they observed

Rollins masturbating four separate times during the afternoon. Rowe testified that Rollins

was looking “directly at [her], directly in [her] eyes” while he was masturbating “with a

fully erect penis.” Lynn and Schrey similarly testified that Rollins looked directly at the

women while masturbating.

       The women contacted Atlantis security to report Rollins’s conduct.          Atlantis

security representative Michelle Jones arrived at the women’s unit to confirm the report.

The women pointed out the balcony where they had observed Rollins.                  Within

approximately two minutes after Jones began looking in Rollins’s direction, she observed

Rollins appear with a towel wrapped around his waist. Within “seconds,” Rollins “turned

around and dropped the towel,” exposing his penis. Jones observed as Rollins sat down on

a dark piece of furniture and “started to masturbate.” Jones testified that Rollins was

positioned in such a manner that she was concerned that Atlantis hotel guests, including

children, might be able to see Rollins from the pool area below. Thereafter, Jones contacted

the Ocean City Police Department.

       Officer Kevin Flower responded to Jones’s call and met with the women at their

condominium unit. While Flower was there, he observed Rollins walk to the sliding door

                                             3
of his hotel room and expose his buttocks. The next day, Officer Flower and Sergeant

Gregory DiGiovanni continued to investigate. Sergeant DiGiovanni stood in the position

in Rollins’s hotel room where Rollins had been observed standing the day prior, while

Officer Flower stood in the women’s condominium unit at the Atlantis. Officer Flower

testified that he could easily see Sergeant DiGiovanni standing at his balcony door in the

hotel room at the Clarion. Officer Flower and Sergeant DiGiovanni then switched places

with identical results.

       Rollins was charged with two counts each of disorderly conduct and indecent

exposure. One count of each was based upon Rollins’s alleged conduct on each of the two

days. Following a jury trial, the jury returned a not guilty verdict as to the charges based

upon Rollins’s conduct on June 21, 2016. The jury found Rollins guilty of disorderly

conduct and indecent exposure for his conduct on June 22, 2016.

       Additional facts shall be discussed as necessitated by our discussion of the issues

on appeal.

                               STANDARD OF REVIEW

       We review “a trial court’s refusal or giving of a jury instruction under the abuse of

discretion standard.” Stabb v. State, 423 Md. 454, 465 (2011). The Court of Appeals has

explained:

              We consider the following factors when deciding whether a
              trial court abused its discretion in deciding whether to grant or
              deny a request for a particular jury instruction: (1) whether the
              requested instruction was a correct statement of the law;
              (2) whether it was applicable under the facts of the case; and
              (3) whether it was fairly covered in the instructions actually
              given.

                                             4
Id. (citing Gunning v. State, 347 Md. 332, 351 (1997)). “The burden is on the complaining

party to show both prejudice and error.” Tharp v. State, 129 Md. App. 319, 329 (1999),

aff’d, 362 Md. 77 (2000).

       When determining whether the trial court abused its discretion with respect to a

particular jury instruction, we consider the following:

               Judicial discretion is a composite of many things, among which
               are conclusions drawn from objective criteria; it means a sound
               judgment exercised with regard to what is right under the
               circumstances and without doing so arbitrarily or capriciously.
               Where the decision or order [of the trial court] is a matter of
               discretion it will not be disturbed on review except on a clear
               showing of abuse of discretion, that is, discretion manifestly
               unreasonable, or exercised on untenable grounds, or for
               untenable reasons.

Bazzle v. State, 426 Md. 541, 549 (2012) (quotations and citations omitted).

                                       DISCUSSION

                                              I.

       Rollins raises two arguments relating to the circuit court’s indecent exposure

instruction.   First, Rollins contends that the circuit court failed to instruct the jury as to

one of the elements of indecent exposure. Second, Rollins asserts that the circuit court’s

instruction about the “public” element of indecent exposure constitutes an abuse of

discretion because it did not include certain limiting language requested by the defense.

As we shall explain, the circuit court’s instruction was neither improper nor an abuse of

discretion.

       The circuit court instructed the jury on the elements of indecent exposure as follows:



                                               5
                     Indecent exposure, it is an offense to willfully and
              intentionally expose in public the private parts of one’s body
              to another person or persons. The State must prove beyond a
              reasonable doubt that: Number one, the Defendant willfully
              and intentionally exposed the private parts of his body, namely
              genitalia. This exposure must not have been accidental or
              inadvertent; two, the Defendant’s act took place in public; and,
              three, at least one other person was present who saw or was
              likely to see the exposure when the Defendant exposed
              himself.

                     The Defendant’s conduct occurred in public if it
              occurred at a place open or exposed to the view of the public
              where anyone who happened to be nearby could have seen
              Defendant’s exposure if they had looked. That is the
              instruction for indecent exposure.

       Rollins had asked the court to instruct the jury that the “conduct must have been

shocking or offensive.” The circuit court judge declined to propound the requested

instruction, explaining that the instruction he intended to deliver “fairly and accurately

represents the law.” On appeal, Rollins asserts that the circuit court’s failure to deliver his

requested instruction constitutes reversible error. We disagree.

       Rollins asserts that, in order for a defendant to be convicted of indecent exposure,

the viewer must have been “shocked or offended” by the defendant’s conduct, and,

therefore, the jury should have been instructed accordingly. In support of his position,

Rollins cites the case of Wisneski v. State, 398 Md. 578 (2007). In Wisneski, the Court of

Appeals addressed whether the evidence was sufficient to support an indecent exposure

conviction when a defendant “suddenly exposed his genitalia to three other people in [a]

room [in a private home], who were not family members and who were deeply offended

by that conduct.” Id. at 580.


                                              6
       On appeal, Wisneski argued that he could not be convicted of indecent exposure

because the exposure did not occur in a public place and the people who saw his genitalia

were invited guests in a private home rather than “casual observers.” The issue before the

Court was whether “lewd conduct that occurred inside a private dwelling . . . can satisfy

the ‘public’ element of the offense of indecent exposure.” Id. The Court explained that a

casual observer “is one who observes the defendant’s acts unexpectedly” and that “the

determining factor [for the ‘public’ element] is not the actual locale of the conduct, but

rather the circumstances of the observation.” Id. at 601, 604. In Wisneski, the Court

emphasized that there was sufficient evidence to support Wisneski’s conviction because

Wisneski’s conduct was “willful and deliberate and subject to actual observation by two of

the people, one who became enraged while the other turned away. Both reactions reflect

that the two of them were casual observers to Wisneski’s exhibition and were offended by

it, thereby establishing that Wisneski ‘publicly’ indecently exposed himself.” Id. at 604.

       Rollins asserts that Wisneski requires an additional element of indecent exposure,

specifically, that an observer actually be “shocked” or “offended” by a defendant’s

exposure. We disagree. In our view, the Wisneski Court did not add an additional element

to the common law offense of indecent exposure. The discussion of observers who were

“shocked” or “offended” was within the context of explaining how, based on the facts and

circumstances of a particular case, an exposure in a private home could satisfy the public

element of indecent exposure.

       Furthermore, we have cited to Wisneski when listing the elements of indecent

exposure as “(1) a public exposure; (2) made willfully and intentionally, as opposed to

                                             7
inadvertently or accidentally; (3) which was observed, or was likely to have been observed,

by one or more persons, as opposed to performed in secret, or hidden from the view of

others.” Duran v. State, 180 Md. App. 65, 78 (2008) (citing Wisneski, supra, 398 Md. at

593), aff’d, 407 Md. 532 (2009).2 Indeed, the Court of Appeals also cited to Wisneski in

identifying the elements of indecent exposure, explaining:

              We already have had occasion to address the origins of the
              crime of indecent exposure as well as analyze its elements in
              Wisneski v. State, 398 Md. 578, 589, 921 A.2d 273, 279 (2007),
              wherein we noted that the misdemeanor offense of indecent
              exposure was “originally derived from English common law
              when our Declaration of Rights was adopted on November 3,
              1776.” In Wisneski, while addressing whether indecent
              exposure had to occur in a public place, we clarified that “[t]he
              authorities . . . are in substantial accord that at the common law
              indecent exposure was the wil[l]ful and intentional exposure of
              the private parts of one’s body in a public place in the presence
              of an assembly,” so that “its main elements were the wil[l]ful
              exposure, the public place in which it was performed, and the
              presence of persons who saw it.” Id. at 591, 921 A.2d at
              280-81.

State v. Duran, 407 Md. 532, 552 (2009) (footnote omitted).

       Neither the Court of Appeals nor this Court has ever articulated an additional

element of indecent exposure requiring that a viewer be shocked or offended by the

exposure. Contrary to Rollins’s assertion, the offense of indecent exposure does not require

that a viewer be shocked or offended. The circuit court, therefore, properly declined to



       2
         Further, requiring that an observer be “shocked” or “offended” would be
incongruous because an actual observation of an intentional public exposure is not
required. Indeed, all that is required is that the public exposure be “likely to have been
observed.” Duran, supra, 180 Md. App. at 78.

                                              8
propound Rollins’s requested instruction, as the requested instruction was premised upon

an incorrect statement of law.

       Rollins further argues that the circuit court abused its discretion by declining to

specifically instruct the jury that the statutory definition of “public place” provided for the

offense of disorderly conduct should not be applied to the “public” element of the indecent

exposure. As we shall explain, the circuit court acted within its broad discretion when it

declined to instruct the jury in the manner requested by Rollins.

       As we discussed supra, the circuit court instructed the jury that one of the elements

of indecent exposure was that “the [d]efendant’s act took place in public.” The circuit

court explained that “[t]he Defendant’s conduct occurred in public if it occurred at a place

open or exposed to the view of the public where anyone who happened to be nearby could

have seen Defendant’s exposure if they had looked.”

       The circuit court’s instruction on the elements of the offense of disorderly conduct,

which had been given prior to the instruction on the elements of indecent exposure, also

addressed an element relating to public places.3 Specifically, with respect to the offense of

disorderly conduct, the circuit court instructed the jury that a “public place means a place

to which the public or a portion of the public has access and a right to resort for business,

dwelling, entertainment or other lawful purpose.” The circuit court’s instruction continued

by identifying various examples of public places, including “a hotel or motel.” After


       3
         In Part II of this opinion, we address the State’s argument that it was not actually
required to prove that Rollins acted in a public place or public conveyance for the modality
of disorderly conduct with which Rollins was charged.

                                              9
identifying the various examples, the circuit court ended its disorderly conduct instruction

by stating, “That is disorderly conduct.”

       The circuit court clearly explained the definition of “in public” to be applied within

the context of indecent exposure and the separate definition of “public place” to be applied

within the context of disorderly conduct. Furthermore, the jury was provided with written

copies of the jury instructions on the offenses of disorderly conduct and indecent exposure,

further reducing the likelihood of confusion. Whether or not to propound the specific

clarifying instruction requested by Rollins was a discretionary determination for the circuit

court, and, as such, “it will not be disturbed on review except on a clear showing of abuse

of discretion, that is, discretion manifestly unreasonable, or exercised on untenable

grounds, or for untenable reasons.” Bazzle, supra, 426 Md. at 549. The circuit court clearly

differentiated between the two separate offenses and the separate elements for each offense

when instructing the jury. Accordingly, we hold that the circuit court acted within its

discretion when declining to give the clarifying instruction requested by Rollins.

                                              II.

       Rollins takes further issue with the circuit court’s disorderly conduct instruction.

The circuit court propounded the following instruction on the offense of disorderly

conduct:

                      As to disorderly conduct, it is an offense to willfully act
              in a disorderly manner that disturbs the public peace in certain
              public places. In order for the Defendant to be found guilty,
              the State must prove beyond a reasonable doubt that: Number
              one, the Defendant willfully acted in a disorderly manner to the
              disturbance of the public peace; two, the defendant acted in the
              actual presence of other persons; three, that the other person or

                                              10
              persons may have been disturbed or provoked to resentment;
              and, four, that the Defendant acted in a public place or a public
              conveyance.

                     The crime of disorderly conduct is the doing and/or
              saying of that which offends, disturbs, incites or tends to incite
              other persons gathered in the same area to the disturbance of
              the public peace.

                     A public place means a place to which the public or a
              portion of the public has access and a right to resort for
              business, dwelling, entertainment or other lawful purpose.
              Public place includes a restaurant, shop, shopping center, store,
              tavern, or other place of business; a public building; a public
              parking lot; a public street, walkway, or right of way; a public
              park or other public grounds; the common areas of a building
              containing four or more separate dwelling units, including a
              corridor, elevator, lobby, and stairwell; a hotel or motel; a place
              used for public resort or amusement, including an amusement
              park, golf course, racetrack, sports arena, swimming pool and
              theater; an institution of elementary, secondary or higher
              education; a place of public worship; a place or building used
              for entering or existing a public conveyance, including an
              airport terminal, bus station, dock railway station, subway
              station and wharf; and the public areas, sidewalks and other
              ground and structures, that are part of a public place. That is
              disorderly conduct.

The circuit court’s definition of “public place” was based upon the enumerated examples

of a “public place or conveyance” set forth in Md. Code (2002, 2012 Repl. Vol.), § 10-201

of the Criminal Law Article (“CL”). Rollins asserts that the circuit court erred by including

the examples of “public place” enumerated in the statute.

       The State first responds by arguing that the disorderly conduct instruction

propounded by the circuit court was incorrect because, under the modality of disorderly

conduct with which Rollins was charged, the State was not required to prove that Rollins

acted in a public place or a public conveyance. Instead, the State asserts that it was required

                                              11
to prove only that Rollins “willfully act[ed] in a disorderly manner that disturb[ed] the

public peace.” CL § 10-201(c)(2).4 The State asserts that the circuit court erred by

including this element in its instructions, but that by requiring the State to prove more than

was required, any error inured to Rollins’s benefit and does not require reversal.

        Critically, whether or not the State was required to prove the “public place” element

was not raised before or decided by the circuit court. Indeed, the prosecutor and defense

counsel both asked the circuit court to instruct the jury on the “public place” element of

disorderly conduct. This issue, therefore, is not properly before us on appeal, and we need

not address it. See Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any

other issue unless it plainly appears by the record to have been raised in or decided by the

trial court . . . .”).5

        We, therefore, turn our attention to Rollins’s assertion that the circuit court’s

disorderly conduct instruction was not an accurate statement of the law, assuming that

presence in a public place is an element of the modality of disorderly conduct with which



        4
         Other modalities of disorderly conduct specifically refer to a “public place or
conveyance.” Section 10-201(c)(1) of the Criminal Law Article provides that “[a] person
may not willfully and without lawful purpose obstruct or hinder the free passage of another
in a public place or on a public conveyance.” (Emphasis added.) Section 10-201(c)(5)
of the Criminal Law Article provides that “[a] person from any location may not, by making
an unreasonably loud noise, willfully disturb the peace of another: (i) on the other’s land
or premises; (ii) in a public place; or (iii) on a public conveyance.” (Emphasis added.)
        5
         We take no position whatsoever on the persuasiveness of the State’s argument that
the State was not required to prove that Rollins’s conduct occurred in a “public place or
conveyance.”



                                             12
Rollins was charged and convicted. Rollins and the State agreed on most of the language

of the disorderly conduct instruction, but Rollins had proposed that the circuit court avoid

listing the specific definitions of public place set forth in the statute and instead define

“public place” as “a place to which the public or a portion of the public has access and a

right to resort for business, dwelling, entertainment or other lawful purpose.” 6 The

prosecutor argued that it was appropriate for the circuit court to include the definition of

“public place” from the statute, including the examples of public places that had been

enumerated by the legislature. The circuit court gave the State’s requested instruction,

explaining that the language of the instruction “will track the statute.”

       On appeal, Rollins contends that the circuit court’s instruction did not accurately

reflect the law. Rollins asserts that the instruction should have articulated that only the

portion of a hotel or motel to which the public has access is properly considered a public

place under the statute. The State responds that the circuit court’s instruction, which was

a verbatim reading of the legislative definition of “public places,” including those examples

of public places provided by the legislature, was a correct statement of law. The State

asserts that the plain language of the statute does not limit the definition of “public place”

in the context of a “hotel or motel” in the manner suggested by Rollins.

       We agree with the State’s interpretation of the statute. If the General Assembly had

intended to limit the definition of “public place” to only the common areas of a hotel or

motel, it could have included limiting language. Indeed, the legislature included such


       6
           There is no Maryland pattern jury instruction on the offense of disorderly conduct.

                                               13
limiting language in the context of apartment buildings, defining a public place as “the

common areas of a building containing four or more separate dwelling units, including a

corridor, elevator, lobby, and stairwell.”        CL § 10-201(a)(3)(ii)(6).   In contrast, the

language regarding hotels or motels includes no limiting language, instead providing that

a “[p]ublic place includes . . . a hotel or motel.” CL § 10-201(a)(3)(ii)(7). We hold,

therefore, that, assuming that presence in a public place is an element of the modality of

disorderly conduct with which Rollins was charged and convicted, the circuit court’s

disorderly conduct instruction, including the legislatively enumerated examples of “public

places,” was a correct statement of law. The circuit court, therefore, did not abuse its

discretion in instructing the jury accordingly.

                                    JUDGMENT OF THE CIRCUIT COURT FOR
                                    WORCESTER COUNTY AFFIRMED. COSTS TO
                                    BE PAID BY APPELLANT.




                                             14
