COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia
HENRY D. MORALES
OPINION BY
v. Record No. 2520-98-4 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 22, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge
James G. Connell, III, Assistant Public
Defender, for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, 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, Henry D. Morales contends that the
evidence was insufficient to support either conviction. We
affirm the judgment of the trial court.
On appeal, we review the evidence in
the light most favorable to the
Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. The
judgment of a trial court sitting without a
jury is entitled to the same weight as a
jury verdict and will not be set aside
unless it appears from the evidence that the
judgment is plainly wrong or without
evidence to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
On April 26, 1998, Officer S.C. Bates was dispatched to a
Fairfax County apartment building after receiving reports of a
"Peeping Tom." He arrived at the building at approximately
11:00 p.m. and observed Morales kneeling in front of a lighted
window. Morales' pants were "down around his ankles," his penis
was exposed and erect, and he was masturbating. When he saw the
police officer, Morales attempted to flee. After arresting
Morales, Officer Bates observed inside the apartment two women,
neither of whom seemed to be aware of Morales' presence. In a
bench trial, Morales was convicted of indecent exposure, in
violation of Code § 18.2-387, and window peeping, in violation
of Code § 18.2-130.
I. 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.
Morales contends that the evidence was insufficient to
support his conviction for indecent exposure, because the
Commonwealth did not prove that the exposure was obscene, going
"substantially beyond customary limits of candor in description
or representation." Code § 18.2-372. We disagree.
The Commonwealth was obliged to prove that Morales' conduct
violated contemporary community standards of sexual candor. See
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House v. Commonwealth, 210 Va. 121, 126, 169 S.E.2d 572, 576
(1969). Proof that he was exposing his genitals, that he was in
a visibly aroused state, and that he was masturbating satisfied
this requirement. The trial court, as the trier of fact, was
familiar with the standards within the community and as such had
ample knowledge to determine whether Morales' conduct went
"substantially beyond" those standards. See Hamling v. United
States, 418 U.S. 87, 104-05 (1974); United States v. Garcia, 927
F.2d 1442, 1450 (8th Cir. 1991); United States v. Various
Articles, 709 F.2d 132, 135-36 (2d Cir. 1983).
The exposure of Morales' penis violated the proscription of
Code § 18.2-387. See Hart v. Commonwealth, 18 Va. App. 77, 79,
441 S.E.2d 706, 707 (1994). Further, he was in a visibly
excited state and was masturbating. These circumstances
"established that his actions had as their dominant purpose an
appeal to the prurient interest in sex," and were therefore
obscene under the Code. Id. at 80, 441 S.E.2d at 707.
Morales next argues that the Commonwealth failed to prove
that he exposed himself in a public place. He fails to note,
however, that the statute provides, and the warrant charged,
that the exposure be "in any public place, or in any place where
others are present . . . ." Code § 18.2-387 (emphasis added).
Officer Bates, the two women in the apartment, and the
complainant who called the police were all "present" within the
meaning of the statute.
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II. 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.
Morales contends that the evidence was insufficient to
sustain his conviction of window peeping, because the
Commonwealth failed to prove that he was acting in a secretive
or furtive manner. He argues that he could not have been acting
secretly or furtively if others saw him. He argues that his
conviction for window peeping required proof that he was in a
public place, thus disproving that he acted "secretly or
furtively." We reject this argument.
Morales was peeping into the window of an apartment
containing two women who were unaware of his presence. 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 those inside the dwelling.
The interpretation proposed by Morales would create an absurd
result. The "secretly or furtively" element, urged by him,
would require proof that no one observe the "peeping tom." See
Barr v. Town & Country Prop., Inc., 240 Va. 292, 295, 396 S.E.2d
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672, 674 (1990). Thus, the arrest of the "peeping tom" caught
in the act would necessarily disprove an element of the crime.
The trial court found that the element of "secrecy or
furtiveness" was satisfied because Morales acted under "cover of
night without the knowledge of the two females inside the
apartment." This finding of a surreptitious invasion of the
privacy of the occupants of the apartment, which was supported
by the evidence, satisfied the statute.
The judgment of the trial court is affirmed.
Affirmed.
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