COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia
PAUL L. COPELAND
OPINION BY
v. Record No. 0644-99-4 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 22, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge
James G. Connell, III, Assistant Public
Defender, for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General;
Kathleen B. Martin, Assistant Attorney
General, on brief), for appellee.
On appeal from his convictions of indecent exposure, in
violation of Code § 18.2-387, and peeping into a dwelling, in
violation of Code § 18.2-130, Paul L. Copeland contends (1) that
the evidence was insufficient to support his conviction of
indecent exposure, (2) that the evidence was insufficient to
support his conviction of window peeping, and (3) that the trial
court erred by denying his motion to strike either or both
counts, because the counts contained mutually exclusive
elements. We affirm the judgment of the trial court.
I. Background
On appeal, we review the evidence in
the light most favorable to the
Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
On July 12, 1998, at around 11:30 p.m., Kelley Rowe was
sitting in her home when, through a glass door, she saw Copeland
in her backyard looking at her. His pants were unzipped, his
penis was exposed and erect, and he was masturbating. Ms. Rowe
called the police, and Officer W.H. Crist responded. As Officer
Crist approached Ms. Rowe's fenced backyard, he looked over the
fence and saw Copeland in the yard. Copeland's pants were
disarrayed, and he admitted he was trespassing.
A jury convicted Copeland of window peeping, in violation
of Code § 18.2-130, and indecent exposure, in violation of Code
§ 18.2-387. He was sentenced to twelve months imprisonment and
a fine for the indecent exposure offense, and an additional six
months imprisonment for the window peeping offense.
II. Indecent Exposure
Code § 18.2-387 states:
Every person who intentionally makes an
obscene display or exposure of his person,
or the private parts thereof, in any public
place, or in any place where others are
present, or procures another to so expose
himself, shall be guilty of a Class 1
misdemeanor.
Copeland contends that the evidence was insufficient to support
his conviction for indecent exposure, because it failed to prove
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that his exposure went "substantially beyond customary limits of
candor in description or representation." Code § 18.2-372. We
disagree.
To be obscene, conduct must violate contemporary community
standards of sexual candor. See House v. Commonwealth, 210 Va.
121, 126, 169 S.E.2d 572, 576 (1969). However, expert testimony
regarding community standards is not required because the fact
finder may apply his or her knowledge in ascertaining the
acceptable standard in the community. See Hamling v. United
States, 418 U.S. 87, 105-07 (1974); Freeman v. Commonwealth, 223
Va. 301, 316, 288 S.E.2d 461, 469 (1982). Evidence that
Copeland exposed his genitals, that he was visibly aroused, and
that he was masturbating supports the jury's finding that his
conduct went "substantially beyond" acceptable community
standards. See VanDyke v. Commonwealth, 178 Va. 418, 426, 17
S.E.2d 366, 370 (1941). This evidence "established that his
actions had as their dominant purpose an appeal to the prurient
interest in sex," and were therefore obscene under the Code.
Hart v. Commonwealth, 18 Va. App. 77, 80, 441 S.E.2d 706 707
(1994).
Copeland further argues that the evidence failed to prove
that he exposed himself in a public place. He fails to note,
however, that the statute, tracked by the indictment, requires
that the exposure be in a public place "or where others are
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present." Code § 18.2-387. Ms. Rowe was present, satisfying
the statute.
III. Window Peeping
Code § 18.2-130(A) states:
It shall be unlawful for any person to
enter upon the property of another and
secretly or furtively peep, spy or attempt
to peep or spy into or through a window,
door or other aperture of any building,
structure, or other enclosure of any nature
occupied or intended for occupancy as a
dwelling, whether or not such building,
structure or enclosure is permanently
situated or transportable and whether or not
such occupancy is permanent or temporary.
Copeland contends that the evidence failed to prove that he
acted in a secret or furtive manner.
Copeland argues that he could not have been acting secretly
or furtively because Ms. Rowe saw him. We reject this argument.
Copeland was hiding in a fenced backyard while peeping into Ms.
Rowe's window, and she was initially unaware of his presence.
He did not have her permission to be in her yard or to act in
such a manner. The statute does not limit prosecution to those
who are wholly hidden from view. Rather, it forbids
surreptitious peeping with the intent to invade the privacy of
another. The interpretation proposed by Copeland would create
an absurd result. The "secretly or furtively" element, urged by
Copeland, would require proof that no one see the "peeping tom."
Thus, the arrest of the "peeping tom" caught in the act would
necessarily disprove an element of the crime. See Barr v.
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Town & Country Prop., Inc., 240 Va. 292, 295, 396 S.E.2d 672,
674 (1990) (holding that legislative intention must be gleaned
from the statutory language "'unless a literal construction
would involve manifest absurdity'").
IV. Motion to Strike
Finally, Copeland contends that the jury should not have
convicted him of both counts, because the counts contain
mutually exclusive elements. He argues that he could not have
secretly or furtively peeped into the window while
simultaneously being in a public place. However, as we have
already observed, the indecent exposure statute does not require
that the offense be committed in a public place. It is
sufficient that it be committed in a "place where others are
present."
The judgment of the trial court is affirmed.
Affirmed.
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