PEOPLE OF MI V RONALD ALLEN NEAL JRAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
June 9, 2005
Chippewa Circuit Court
LC No. 02-007382-FH
RONALD ALLEN NEAL, JR.,
Official Reported Version
Before: Murray, P.J., and O'Connell and Donofrio, JJ.
The prosecution appeals as of right the trial court's grant of defendant's motion for
directed verdict of acquittal following a jury verdict, MCR 6.419(B), thereby acquitting
defendant of indecent exposure, MCL 750.335a. Under the plain language of the statute,
defendant's conduct clearly constitutes both an open exposure and an indecent exposure.
Accordingly, we reverse the lower court ruling and remand for entry of judgment on the guilty
verdict on the charge of indecent exposure.
According to the victim, a minor female who was spending the night in defendant's
house, defendant called her into his bedroom after she had finished watching a movie. While the
victim was exiting the room, defendant exposed his erect penis through the zipper of his shorts to
the victim. Defendant was convicted by a jury of indecent exposure; however, the trial court
granted defendant's motion for directed verdict on the basis that, for indecent exposure to be a
crime pursuant to MCL 750.335a, the exposure must take place in a public place. The sole issue
on appeal is whether defendant could be properly convicted of indecent exposure for the
exposure made in his house.
MCL 750.335a, known as the "indecent exposure" statute, prohibits both "open" or
"indecent" exposures that are knowingly made. The statute provides in relevant part that "[a]ny
person who shall knowingly make any open or indecent exposure of his or her person or of the
person of another is guilty of a misdemeanor . . . ." (Emphasis added.) "The primary goal of
statutory interpretation is to give effect to the intent of the Legislature." In re MCI, 460 Mich
396, 411; 596 NW2d 164 (1999). The intent of the Legislature is discerned from the plain
language of the statute. Id. While the Legislature's use of the terms "and" and "or" in statutory
language has at times been inconsistent, "the words are not interchangeable and their strict
meaning 'should be followed when their accurate reading does not render the sense dubious' and
there is no clear legislative intent to have the words or clauses read in the conjunctive." AutoOwners Ins Co v Stenberg Bros, Inc, 227 Mich App 45, 50-51; 575 NW2d 79 (1997) (citations
omitted, punctuation deleted). "The word 'or' generally refers to a choice or alternative between
two or more things." Id. at 50. Here, the use of the word "or" reveals that the plain language of
the statute provides that one may be guilty of open exposure or indecent exposure, as it prohibits
two different types of conduct. See People v Williams, 256 Mich App 576; 664 NW2d 811
(2003) (separately discussing both "open exposure" and "indecent exposure.").
The trial court's conclusion that an indecent exposure can only take place in public is
incorrect. This requirement is neither found in the statute nor, when properly read, the case law.
Supreme Court precedent has, in fact, concluded that there is no such requirement. For example,
in People v Kratz, 230 Mich 334, 339; 203 NW 114 (1925), the defendant alleged error in the
charge against him for indecent exposure,1 arguing that it was not made plain to the jury that the
exposure must have been made in public. The defendant further contended that under the charge
given, a person could be convicted of the charge if the exposure was done in a private place. Id.
Rejecting the defendant's arguments and concluding that the trial court fairly instructed the jury,2
the Court indicated, "'Public' and 'private' as applied to places are not absolute in meaning but
relative as used in contradistinction of each other. The statute makes no reference to place,
either public or private. The gist of the offense is an intentional or designedly made 'open,
indecent or obscene exposure of the person,' necessarily in the presence of others." Id. at 339.
The Kratz Court made it clear that an "indecent exposure" need not take place in public, and
specifically reaffirmed the plain language of the statute, which makes no reference to place.
In Kratz, the statute provided, "If any man or woman, married or unmarried, . . . shall
designedly make any open, indecent or obscene exposure of his or her person, . . . every such
person shall be punished by imprisonment in the county jail." Id. at 336; see also 1915 CL
The trial court had instructed the jury as follows with regard to the offense of indecent
"The term 'openly' as used in this information and in the law under which
the prosecution is had, means public in the sense that it was not concealed, that it
was not private, that it was made in such a place and such a manner as to be a
public exposure, that it was not within a concealed place or enclosure, but that it
was made publicly to the people who were there in view, and by that, gentlemen,
is not meant necessarily that it was a public ground or in a public place in the
sense of its being upon public property. It may have been upon private property,
but it must have been openly and publicly within relation to the people that were
there situate." [Kratz, supra at 339 (emphasis added).]
In a plurality opinion, the Michigan Supreme Court later addressed the issue whether
there could be indecent exposure in a private nudist camp. People v Hildabridle, 353 Mich 562;
92 NW2d 6 (1958) (opinion by Volker, J.). The Hildabridle defendants were prosecuted and
convicted under a former version of MCL 750.335a, which was substantially similar to the
present version of the statute. Id. at 566. Although the Court ultimately determined that the
defendants' convictions should be reversed because of an illegal search and seizure, the plurality
also discussed whether the private practice of social nudism constituted a violation of the
indecent exposure statute, and determined that it did not. Id. at 580-582. The Court focused less
on the location of the exposure and more upon the intent of the exposer and the circumstances of
the exposure, indicating that the statute envisages a combination of two things: "a reasonably
inferable indecent intention by the exposer as well as a reasonably-to-be expected reaction of
shock and shame on the part of the probable exposee." Id. at 589. The Court noted, "the plain
fact is that usually there is involved an aggressive and unmistakably erotic attempt to focus the
attention of others solely on the sexual organs of the exposer, and, as any weary patrolman
knows (if some judges may have forgotten), most usually on a certain engorged portion of the
male anatomy." Id. at 592. Again, our Supreme Court focused not on the location of the
indecent exposure, but on the act of intentionally exposing oneself to others who would be
expected to be shocked by the display.
More recently, Justice Boyle expounded on this issue in her concurring opinion in In re
Certified Question (Jewell Theatre Corp v Oakland Co Prosecutor), 420 Mich 51; 359 NW2d
513 (1984). There, Justice Boyle indicated that the statutory proscription against "open"
exposure was meant to prohibit the display of any part of the human anatomy under
circumstances that create a substantial risk that someone might be offended. Id. at 63. Justice
Boyle concluded, "[W]e would like to make clear that under the above test, exposure that was
not 'open,' because it did not take place under circumstances that created a substantial risk that
someone might be offended, could still be proscribed under the statute as 'indecent' if it violated
the minimum standards of Miller v California, [413 US 15; 93 S Ct 2607; 37 L Ed 2d 419
(1973)] . . . ."3 Id. at 64. Justice Boyle thus made it clear that an exposure could be either open
or indecent, and that an "indecent exposure" need not take place in a public area.
Defendant relies on Williams and People v Vronko, 228 Mich App 649; 579 NW2d 138
(1998), for the conclusion that an indecent exposure must take place in a public place; however,
such reliance is misplaced. Neither Williams nor Vronko, upon which the Williams opinion was
based, preclude defendant's conviction in this case.
Justice Boyle previously indicated in the opinion that the statute should be construed in
conformity with the minimum standards set forth in Miller to proscribe only the "patently
offensive exhibition of ultimate sex acts, normal or perverted, actual or simulated," or "patently
offensive exhibitions of masturbation or excretory functions, and lewd exhibition of the
genitals." In re Certified Question, supra at 63.
In Vronko, the precise issue was whether a person's exposure must actually be witnessed
by another person in order to constitute the crime of indecent exposure. Vronko, supra at 651.
In that case, the defendant was sitting in the driver's side of a vehicle parked in front of a house
near two elementary schools where children were passing by on their way to school. Although
the vehicle's doors were shut, the passenger-side window was down. The main witness, who was
living in the house in front of which the vehicle was parked, saw that the defendant's legs were
bare, and that "it looked like [the] defendant had something in his hand, although she could not
see what it was." Id. The witness testified, however, that the defendant's "'right hand was in his
crotch and it was just going like gangbusters.'" Id. Although the witness believed the defendant
was exposing himself to the passing school children, she never actually saw the defendant's penis
and never saw the children react to the defendant in any way. Id.
In addressing whether a witness to the exposure is required in order to prosecute for
indecent exposure, the Vronko Court noted that while the standard criminal jury instruction
purported to include as an element of the crime that the exposure be witnessed by another
person, "the language of the statute does not explicitly require the existence of such a witness . . .
." Id. at 655. The Court stated that if the statute did, in fact, include such an element, it must be
contained within the phrase "open or indecent exposure." Id. Indicating that courts will construe
a statutory crime by resorting to the common-law definition where the statutory provision
employs the general terms of the common law to describe an offense, the Court stated that it was
not required at common law that an "indecent exposure" be observed in order to constitute a
punishable misdemeanor. The Court held that "there is no requirement that the defendant's
exposure actually be witnessed by another person in order to constitute 'open or indecent
exposure,' as long as the exposure occurred in a public place under circumstances in which
another person might reasonably have been expected to observe it." Id. at 657 (emphasis
added). The Vronko Court thus did not hold that every circumstance of indecent exposure need
occur in a public place. Rather, it merely determined that the phrase, "open or indecent
exposure" itself did not encompass a requirement that the exposure actually be witnessed by
another person if the exposure occurred in a public place under circumstances in which another
person might reasonably have been expected to observe it.
Williams likewise does not contain a requirement that the exposure occur in public.
Indeed, Williams actually supports defendant's conviction in this case. In Williams, the
defendant entered the bathroom of a private residence while his eight-year-old niece was taking a
bath. Williams, supra at 577. Although the niece asked the defendant to leave, he refused and
then drew a picture of her, including a depiction of her vagina and breasts. Id. Thus, in
Williams, the defendant did not expose himself to anyone, but caused his niece to be exposed to
him when he went into the bathroom and the child did not leave the bathroom.
The Williams Court bifurcated its discussion of the indecent exposure statute into, first,
whether there was an "open exposure" and, second, whether there was an "indecent exposure."
In finding that the defendant did not make an "open exposure," the Court relied in part on Justice
Boyle's test for "open exposure" of "'whether anyone might reasonably have been expected to
observe it and, if so, whether the person might reasonably have been expected to have been
offended by what was seen.'" Williams, supra at 583 (citation deleted). Regarding open
exposures, the Court found that the Legislature's aim was to punish exposures that would be
offensive to viewers, actual or potential, and not to the person who caused the exposure. Id.
Thus, the defendant in Williams could not be convicted of open exposure because there was no
"viewer" who would have been offended by what was seen.
Although raised for the first time on appeal, the Williams Court also discussed whether
the defendant could be convicted of "indecent" exposure. The Williams Court reaffirmed the
Vronko Court's definition of "indecent exposure" as "'an "intentional exposure of part of one's
body (as the genitals) in a place where such exposure is likely to be an offense against generally
accepted standards of decency in a community."'" Williams, supra at 585 (citations deleted). As
in Vronko, the Williams Court indicated that an exposure need not "'actually be witnessed by
another person in order to constitute "open or indecent exposure," as long as the exposure
occurred in a public place under circumstances in which another person might reasonably have
been expected to observe it.'" Id. at 585 (emphasis added, citations deleted). Hence, because the
Williams defendant was the person creating the exposure, and there was no actual witness to the
exposure other than himself, the exposure was required to be in public. Id. In other words,
because the defendant/viewer/exposer would not have found the exposure offensive, he could not
be prosecuted under the statute because he did not expose the person of another in a public place
under circumstances in which another person might reasonably have been expected to observe it.
Vronko, supra; Williams, supra. Thus, Williams does not require that every "indecent" exposure
be made in a public place, but that, when the exposure is not witnessed by another, it must be
made in a public place.
Recently, this Court addressed the issue whether an exposure made on a television
program fell within the scope of the indecent exposure statute as an "open or indecent exposure."
People v Huffman, 266 Mich App ___; ___ NW2d ___ (2005). The Court reiterated the Vronko
definition of "open exposure" in determining that the indecent exposure statute was properly
applied to encompass an "open or indecent exposure" in the form of a televised image. Id., at
___. The Court refused to read into the statute a "limitation that would prevent its application to
[the] defendant's televised and, therefore, powerfully effective exposure." Id., at ___. The Court
determined that a televised exposure, while qualitatively different from a physical exposure,
could be more offensive and threatening, because it is likely a more shocking event to be
subjected to a televised exposure in the privacy of one's own home than an exposure by some
stranger in a public forum. Id. at ___. The Court noted that the televised exposure was "likely
more of an immediate close up than would occur if [the defendant] had been physically present
with those subject to his exposure," and further that the defendant's exposure lasted much longer
than it would have likely been allowed in a public square. Id. at ___.
Here, defendant's exposure clearly falls within the definition of an "open" exposure. The
victim would have reasonably been expected to observe it, and she might reasonably have been
expected to have been offended by what was seen. Huffman, supra; Williams, supra; Vronko,
supra. Indeed, the evidence shows that defendant intentionally exposed his genitals to a minor
and that the victim was offended by the exposure. As seen in Huffman, an exposure, although
not made in a public place, may fall within the definition of an "open exposure" if it is comprised
of "conduct consisting of a display of the human anatomy under circumstances which created a
substantial risk that someone might be offended." Huffman, supra at ___ (citations omitted).
Additionally, defendant's conduct also falls under the definition of "indecent" exposure.
Defendant, just as in the example discussed in Hildabridle, made a knowing and intentional
exposure of part of his body (his genitals) to a minor child in a place (a house) where such
exposure is likely to be an offense against generally accepted standards of decency in a
community. Williams, supra. It was not necessary that the exposure occur in a public place
because there was in fact a witness to the exposure itself.4 Thus, defendant's exposure could be
properly categorized not only as an "open" exposure, but also as an "indecent" exposure for
purposes of MCL 750.335a.
This is not to say that each and every exposure made inside one's home constitutes an
"indecent" or "open" exposure for the purposes of the statute. Rather, the statute makes it clear
that the "indecent" or "open" exposure must be knowingly made. As indicated above, Michigan
case law has provided additional protection against an over-inclusive interpretation of the statute
through the precise standards to be applied in this type of case. Further, the Miller case also sets
forth specific minimum standards that must be met in order for there to be an "open" or
"indecent" exposure. Miller, supra; see also In re Certified Question, supra.
Finally, it is significant to note that a statutory scheme exists that specifically prohibits
"indecent or obscene conduct in a public place." See MCL 750.167(1)(f); MCL 750.168.
Unlike the statute we are faced with today, the "disorderly person" statute expressly prohibits
"indecent" conduct in a public place, which by its very terms, encompasses acts of indecent
exposure. MCL 750.167(1)(f). The "disorderly person" statutes thus proscribe precisely the
type of public conduct defendant seeks to have read into the indecent exposure statute.
In conclusion, under the plain language of the statute and prior case law interpretation of
it, defendant made an "open or indecent exposure" for the purposes of MCL 750.335a. Focusing
not on the location of the exposure, but on defendant's conduct, his intent in making the
exposure, and the reasonable reaction to the exposure by the viewer, defendant's conviction
under the indecent exposure statute must stand.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
/s/ Christopher M. Murray
/s/ Peter D. O'Connell
/s/ Pat M. Donofrio
In light of our conclusion, the Standing Committee on Standard Criminal Jury Instructions may
want to review CJI2d 20.33(4).