dissenting.
To the extent the majority's decision requires that someone see the offending body part, the effect of the decision is to prevent any conviction of public indecency based on cireumstantial evidence. That is inconsistent with the intent of the public indecency statute and I must therefore respectfully dissent.
When Officer Bryant found Townsend at the rear of the building, Townsend's pants were unzipped, a puddle of urine was flowing on the ground away from the building, and there was a wet spot on the front of Townsend's pants. Those facts, along with the fact Townsend was facing the building with his hands in front of him as if he were holding something, leads to the ineseapable conclusion that Townsend was holding his penis and urinating. At some point his penis must have been exposed, unless we are to believe Townsend urinated on the ground without removing his penis from his unzipped pants.
I also disagree with the majority's conclusion that "Townsend's deliberate walk to the rear of the premises suggests that any momentary display, and we have no direct evidence that any occurred, was not knowing or intentional." (Op. at 418.) I would decline to hold that urinating in a public place, without walls or any other sort of cover, cannot be knowing or intentional.
Finally, I disagree with the majority's opinion insofar as it distinguishes Whatley, where one or more persons observed the defendant's nudity, and the present case, where there were "no such casualties." (Op. at 418.) It is true that the purpose of the public indecency statute is "to protect the non-consenting viewer who might find such a spectacle repugnant." 708 N.E.2d at 69, quoting Thompson v. State, 482 N.E.2d 1372, 1375 (Ind.Ct.App.1985). The majority would require that the "non-consenting viewer" have actually seen Townsend's penis before public indecency could have occurred.
Essentially, what the majority has done is answer in the negative the age-old question, "if a tree falls in the forest, and no one is there to hear it, does it make a sound?" I would decline to hold that pub-lie urination is acceptable so long as no one *420views the perpetrator's penis, and I would accordingly affirm Townsend's conviction of public indecency.