State v. Whitaker

In State v. Whitaker, 164 Ariz. 359, 793 P.2d 116 (Ariz. App. 1990), the defendant was charged with numerous counts of public sexual indecency involving a minor and public sexual indecency. Id. at 117. The indictments alleged that the incidents occurred in various places, including the bedroom and living room of the defendant's home. Id. Prior to trial, Whitaker moved to dismiss the charges related to his living room, arguing that a person's private home is not a "public place" and, alternatively, if it is, the public sexual indecency statute is unconstitutional as vague and ambiguous because it regulates protected activity. Id. The state countered that the term "public" refers to the presence of another person and not to the place where the act occurred. Id. The trial court held that the public sexual indecency statute could not reasonably be construed to encompass activities within a private residence. Id. In reversing, the court analyzed the common law tradition of the crime of public indecency. It noted that, as codified, Arizona had modified the meaning of "public place." The court concluded that, in order to commit the offense, the indecent act need not be done in a place open to the public, so long as the act occurred in the presence of another person. Id. at 118. The court added, id. at 120: It is therefore clear that the statute's proscriptions can be committed in one's own home. It is a question of fact whether an actor by his conduct knowingly exposes his activity to another and is reckless about whether such other would reasonably be offended or alarmed by such activity. Any constitutional considerations concerning the right to privacy and consensual acts in the home are guarded by the standard of reasonableness and the requirement that the actor must be reckless. The offense parallels indecent exposure in new A.R.S. 13-1402 in requiring that another person be present and that the defendant be reckless about whether this other person normally would be offended or alarmed. This reasonableness test presumably balances interests of free expression and privacy with a standard of public moral decency. Arizona Revised Statute 13-1402(A) states: A. A person commits indecent exposure if he or she exposes his or her genitals or anus or she exposes the areola or nipple of her breast or breasts and another person is present, and the defendant is reckless about whether such other person, as a reasonable person, would be offended or alarmed by the act.