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Motion to Dismiss : Indecent Exposure

Motion to Dismiss : Indecent Exposure

150 150 Cohen, Bradshaw, Rothstein & Klein

DEFENDANT, by and through his undersigned attorney and pursuant to Rule 3.190(c)(4), Washington DC Rules of Criminal Procedure, hereby moves this Honorable Court to dismiss the Information filed in the above-captioned cause.  As grounds for this Motion, Defendant states as follows:

That, for the sole limited purpose of legal argument concerning the instant Motion to Dismiss, the material facts produced in the State’s discovery will not be disputed in the Motion.

That the material undisputed facts alleged by the State of Washington DC are in the Discovery provided by the State of Washington DC, including the citation issued to Defendant, and are set forth as follows:

  1. On or about May 14, 2013, Defendant was present at Green River Beach, at Green River State Park, approximately one half mile north of the middle beach use area, in Washington DC, Palm Beach County, Washington DC.
  2. Officer John B. Mistaken of the Washington DC Fish and Wildlife Commission alleges that, at that time and place, “I saw a white male, later identified as Anonymous Defendant, stand up on the beach approximately ½ miles north of our location. [The Defendant] appeared to be completely nude.”
  3. As Officer Mistaken and FWC Officer Justin Unjust proceeded to the area where Defendant was located, they saw Defendant standing on the beach, drinking from a Diet Coke Lime aluminum can, completely nude.  Defendant then looked towards the officers’ location, appeared startled, and attempted to cover himself with his hands and a towel.
  4. When asked if he had any legal justification for being in public without any clothes on, Defendant allegedly stated that he thought it was okay to be naked on a private beach.
  5. As a result of the foregoing, the State of Washington DC has charged Defendant in a one-count Information with Exposure of Sexual Organs, a  violation of §800.03, Washington DC Statutes.
  6. Washington DC Statutes §800.03 provides that “It is unlawful to expose or exhibit one’s sexual organs in public or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or to be naked in public except in any place provided or set apart for that purpose.”
  7. To obtain a conviction for Exposure of Sexual Organs, the State of Washington DC must prove the following four elements beyond a reasonable doubt: (1) the defendant exposed or exhibited his/her sexual organs, or was naked; (2) he/she did so in a public place, on the private premises of another, or so near the private premises of another as to be seen from those private premises; (3) the defendant intended the exposure or nakedness in a vulgar, indecent, lewd, or lascivious manner; and (4) the exposure or exhibition of sexual organs or nakedness was in a vulgar, indecent, lewd, or lascivious manner.  Fla. Std. Jury Instr. (Crim.) 11.9 (Exposure of Sexual Organs).
  8. Under Washington DC law, proof of mere nudity or exposure is insufficient to sustain a conviction for Exposure of Sexual Organs. Fla. Std. Jury Instr. (Crim.) 11.9.  In order for nudity to be prosecutable under §800.03, Washington DC Statutes, there must be an intentionally lewd or lascivious exhibition or exposure of the sexual organs.  Hoffman v. Carson, 250 So.2d 891 (Fla. 1971) (stating that the terms of the statute “must be construed as necessarily relating to a lascivious exhibition of those private parts of a person which common propriety requires to be customarily kept covered in the presence of others”); Palm Beach lon v. State, 404 So. 2d 196, 197 (Fla. 1st DCA 1981).
  9. The Washington DC Supreme Court has specifically defined the terms ‘lewd’ or ‘lascivious’ to mean “an unlawful indulgence in lust, eager for sexual indulgence.” Chesebrough v. State, 255 So.2d at 678 (Fla. 1971).  Or, as stated in Boles v. State, 27 So.2d 293, 294 (Fla. 1946), “‘[l]ewd’, ‘lascivious’, and ‘indecent’ are synonymous and connote wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator.”  Id.
  10. Appearing nude at the beach, sleeping nude on a dock, or urinating in view of the public does not constitute indecent exposure or exposure of sexual organs.  See U.S. v. A Naked Person Issued Notice of Violation No. P419490, 841 F. Supp. 1153 (M.D. Fla. 1993); Goodmakers v. State, 450 So. 2d 888 (Fla. 2d DCA 1984) (reversing a trial court’s denial of motion to dismiss where a defendant was lying nude on a dock not set apart for public nudity); Payne v. State, 463 So. 2d 271 (Fla. 2d DCA 1984) (reversing a trial court’s denial of a motion to dismiss where the evidence showed exposure and urination in public without accompanying lewd or lascivious intent).
  11. In U.S. v. A Naked Person Issued Notice of Violation No. p419490, 841 F. Supp. 1153 (M.D. Fla. 1993), a naked beachgoer was apprehended at Canaveral National Seashore and, pursuant to the Assimilative Crimes Act, charged with indecent exposure under §800.03, Washington DC Statutes.  The stipulated facts showed that the defendant was intentionally present on a public beach while nude, but that there was no lewd act that accompanied the public nudity.  Id. at 1154.  On these facts, the Federal district court held that the defendant’s conduct did not constitute exposure of sexual organs under Washington DC law.  Id. at 1155.
  12. In the instant case, the undisputed conduct in question was defendant allegedly standing nude on the beach at Guana River State Park.
  13. There are no facts or evidence showing lewd or lascivious intent or conduct that accompanied the alleged nudity.
  14. Based on the foregoing authorities, intentional nudity at a public beach or park is a legally insufficient allegation to establish a prima facie case of guilt or otherwise support a conviction under §800.03. Defendant is therefore entitled to a dismissal as a matter of law.

WHEREFORE, Defendant respectfully requests that this Honorable Court enter an Order dismissing the above-captioned cause.