{ "id": 711327, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Clifford ROMERO, Defendant-Appellant", "name_abbreviation": "State v. Romero", "decision_date": "1985-10-17", "docket_number": "No. 8308", "first_page": "532", "last_page": "536", "citations": [ { "type": "official", "cite": "103 N.M. 532" }, { "type": "parallel", "cite": "710 P.2d 99" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "80 N.M. 198", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5353992, 5358695, 5359383 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0198-03", "/nm/80/0198-01", "/nm/80/0198-02" ] }, { "cite": "80 N.M. 190", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363746 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0190-01" ] }, { "cite": "178 A.2d 434", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8111339, 8111294 ], "opinion_index": 0, "case_paths": [ "/a2d/178/0434-02", "/a2d/178/0434-01" ] }, { "cite": "351 N.Y.S.2d 788", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1973, "opinion_index": 0 }, { "cite": "75 Misc.2d 1032", "category": "reporters:state", "reporter": "Misc. 2d", "year": 1973, "opinion_index": 0 }, { "cite": "244 S.W. 962", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1922, "opinion_index": 0 }, { "cite": "211 Mo.App. 429", "category": "reporters:state", "reporter": "Mo. App.", "case_ids": [ 1785368 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/mo-app/211/0429-01" ] }, { "cite": "321 N.E.2d 164", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "24 Ill.App.3d 554", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5308896 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0554-01" ] }, { "cite": "72 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "194 Va. 241", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2162458 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/va/194/0241-01" ] }, { "cite": "51 N.E.2d 961", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1943, "opinion_index": 0 }, { "cite": "315 Mass. 20", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 904135 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/mass/315/0020-01" ] }, { "cite": "130 A.2d 578", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1957, "opinion_index": 0 }, { "cite": "212 Md. 602", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2215263 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/md/212/0602-01" ] }, { "cite": "248 A.2d 589", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1968, "opinion_index": 0 }, { "cite": "96 A.L.R.3d 692", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1979, "opinion_index": 0 }, { "cite": "260 Ark. 864", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616749 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "866" }, { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/ark/260/0864-01" ] }, { "cite": "94 A.L.R.2d 1353", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 6, "year": 1964, "pin_cites": [ { "page": "1355" }, { "page": "1355" }, { "page": "1357" }, { "page": "1364" } ], "opinion_index": 0 }, { "cite": "642 P.2d 607", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1981, "opinion_index": 0 }, { "cite": "97 N.M. 621", "category": "reporters:state", "reporter": "N.M.", "year": 1981, "opinion_index": 0 }, { "cite": "97 N.M. 141", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555140 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0141-01" ] }, { "cite": "97 N.M. 585", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555121 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0585-01" ] } ], "analysis": { "cardinality": 690, "char_count": 13364, "ocr_confidence": 0.77, "pagerank": { "raw": 1.8789090999818088e-07, "percentile": 0.7273122873186815 }, "sha256": "ae320c3f0a4246406d45f1eacad29039c93175c0247aaf297ac1f955831b9f12", "simhash": "1:2ff2cf813087ee6b", "word_count": 2193 }, "last_updated": "2023-07-14T15:39:32.898300+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BIVINS and MINZNER, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Clifford ROMERO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nDONNELLY, Chief Judge.\nDefendant was convicted of attempted sexual penetration of a child under the age of thirteen, criminal sexual contact of a minor, and two counts of indecent exposure. Initially, defendant appealed each of the convictions; however, following the filing of the docketing statement herein, defendant did not oppose this court\u2019s proposed summary affirmance of his convictions, except for the two convictions of indecent exposure to a minor. Issues raised in the docketing statement but not briefed on appeal are deemed abandoned. NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 205 (Repl.Pamp.1983); State v. Martinez, 97 N.M. 585, 642 P.2d 188 (Ct.App.1982); State v. Edwards, 97 N.M. 141, 637 P.2d 572 (Ct.App.), cert. denied, 97 N.M. 621, 642 P.2d 607 (1981).\nThe single issue presented on appeal is whether defendant\u2019s deliberate display of his genital area, on two different occasions before a minor' child in the household wherein he was living, constituted the offense of indecent exposure. We reverse.\nFACTS\nDuring the spring and fall of 1983, defendant was romantically involved with Christine C., not his wife. Defendant lived during this period at the home of his girlfriend and her two daughters, ages eight and twelve. On one occasion, during September 1983, the eight-year-old daughter of defendant\u2019s girlfriend was in the living room of the home when defendant entered the room and opened his robe. The youth testified that defendant was wearing no clothes under his robe and that he appeared to deliberately open the robe to her view. No other persons were present in the room when this incident occurred.\nOn another occasion, in October 1983, during her mother\u2019s absence from the house, the twelve-year-old daughter was in the kitchen washing dishes, when defendant came into the room and opened his robe so as to expose himself in full view. Defendant was wearing nothing underneath the robe, and the child testified that defendant started \u201cplaying with himself.\u201d Defendant was acquitted of a third charge of indecent exposure alleged to have occurred in the bathroom of the residence at a time when the older daughter was taking a shower. The older child stated that she did not initially reveal these incidents to her mother because she was afraid of defendant; she also stated that during October 1983, defendant threatened her with a knife when she told him that she was going to tell her mother.\nOFFENSE OF INDECENT EXPOSURE\nDefendant admitted that the two incidents of exposure occurred, but on appeal argues that since the exposures occurred inside the confines of a private home, the evidence was insufficient to support a finding that he had indecently exposed himself to \u201cpublic view\u201d as proscribed by the statute.\nThe offense of indecent exposure as defined by NMSA 1978, Section 30-9-14 (Repl.Pamp.)\nIndecent exposure consists of a person knowingly and intentionally exposing his primary genital area to public view. Primary genital area means the mons pubis, penis, testicles, mons veneris, vulva or vagina. [Emphasis added.]\nThe statute declares that the offense of indecent exposure before a child under thirteen years of age is a misdemeanor. In all other cases, commission of the offense is declared to be a petty misdemeanor. The words \u201cpublic view\u201d are not defined by statute, and the appellate courts of this state have not previously interpreted this language.\nIndecent exposure was an offense under common law. Annot., 94 A.L.R.2d 1353, 1355 (1964). Section 3 of Annot., 94 A.L. R.2d states that: \u201cthe elements of the offense of indecent exposure at common law are a wilful and intentional exposure, [occurring] in a public place and in the presence of an assembly.\u201d Id. at 1355. In State v. Black, 260 Ark. 864, 545 S.W.2d 617 (1977), the court noted that in an Arkansas statute prohibiting sexual indecency, \u201cpublic place\u201d was defined as \u201ca publicly or privately owned place to which the public or substantial numbers of people have access.\u201d Id. at 866, 545 S.W.2d at 618. See also Annot. 96 A.L.R.3d 692 (1979).\nUnder the majority English common law view, the public place element required the presence of more than one person; however, American jurisdictions have split on the question of whether more than one viewer is required in order to constitute the offense of indecent exposure. State v. Pallman, 5 Conn.Cir. 202, 248 A.2d 589 (1968). A number of jurisdictions adhere to the rule that in order to support a charge of indecent exposure, it is not necessary to show that more than one person actually saw the act if it was performed in a place subject to public view where others might have witnessed the incident. Annot., 94 A.L.R.2d 1353, 1357. See Messina v. State, 212 Md. 602, 130 A.2d 578 (1957); Commonwealth v. Broadland, 315 Mass. 20, 51 N.E.2d 961 (1943); Noblett v. Commonwealth, 194 Va. 241, 72 S.E.2d 241 (1952). E.g. People v. Legel, 24 Ill.App.3d 554, 321 N.E.2d 164 (1974). But see State v. Wolf, 211 Mo.App. 429, 244 S.W. 962 (1922).\nBy statute in some jurisdictions, when a child or children are the victims, commission of the offense is not restricted to a public place. Annot., 94 A.L.R.2d 1353, 1364 (1964). New Mexico previously enacted a similar statute but has subsequently revised the statute to add the requirement that the offense occur in \u201cpublic view.\u201d See NMSA 1953, \u00a7 40-34-21 (1949 N.M. Laws, ch. 140, \u00a7 1). As discussed in Section 9 of Annot., 94 A.L.R.2d 1353, 1364-65:\nA number of states have statutes expressly prohibiting indecent exposures to children. The elements of the offense under such statutes appear to be similar to those which are found under the more general statutes, but with the important exception that they apply only to exposures to children under a specified age, and they include no requirement that the exposure be in a public place or where persons other than the child involved might see it.\nExamination of the legislative history of the offense in New Mexico reveals that this state prior to 1975 had two separate statutes proscribing the offense of indecent exposure and other lewd sexual behavior. See NMSA 1953, \u00a7 40-34-20 (1903 N.M. Laws, ch. 117, \u00a7 1); NMSA 1953, \u00a7 40-34-21 (1949 N.M. Laws, ch. 140, \u00a7 1). These early statutes consisted of a general statute declaring indecent exposure in a \u201cpublic place\u201d to constitute criminal behavior (a misdemeanor), and a separate statute prohibiting indecent exposure or lewd behavior upon a child under the age of eighteen (a felony). Id.\nAs provided in former statute NMSA 1953, Section 40-34-21, \u201cany indecent demonstration or exposure upon, or in the presence of any person under the age of eighteen (18) years\u201d was declared to be a felony. As originally enacted, this statute had no requirement that the offense be committed in a \u201cpublic place\u201d or in \u201cpublic view.\u201d NMSA 1953, Section 40-34-20 was designed to protect persons over eighteen years of age from being subjected to indecent and offensive sexual exposure and provided that \u201cany person who shall ... indecently expose his person in or upon the streets or other public places in any unincorporated village, town or city * * * shall be guilty of a misdemeanor * * *.\u201d [Emphasis added.]\nThe 1963 revised Criminal Code rewrote the two statutes, but continued treating the offenses separately. See NMSA 1978, \u00a7 40A-9-8 (1963 N.M. Laws, ch. 303, \u00a7 9-8); NMSA 1978, \u00a7 40-9-9 (1963 N.M. Laws, ch. 303, \u00a7 9-9). The 1963 revision of these statutes provided that any indecent demonstration or exposure of a person\u2019s nude body before a child constituted a felony, but lowered the age of the victim from \u201cunder eighteen years\u201d to \u201cunder sixteen years.\u201d Laws 1963, ch. 303, \u00a7 9-9. The 1963 revision also materially rewrote the general statute pertaining to indecent exposure and deleted the words \u201cexpose his person in or upon the streets or other public places\u201d to provide that: \u201cIndecent exposure consists of knowingly and indecently exposing the private parts or sexual organs of a person to the public view.\u201d [Emphasis added.] Laws 1963, ch. 303, \u00a7 9-8.\nIn 1975, the legislature again amended the two statutes, this time combining the general indecent exposure statute with the statute proscribing lewd and indecent exposure in the presence of a child. NMSA 1978, \u00a7 30-9-14 (1975 N.M. Laws, ch. 109, \u00a7 5). The 1975 legislative amendment lowered the age of a minor victim from sixteen years to thirteen, and changed the penalty for indecent exposure before a child from a felony to a misdemeanor.\nSince the legislature in 1963 added the requirement that indecent exposure must oce.ur in \u201cpublic view\u201d, the legislative enactment criminalizes indecent exposure which occurs in a location rendering it subject to \u201cpublic view.\u201d Webster's New Collegiate Dictionary at 932 (1977), defines \u201cpublic\u201d as \u201ca place accessible or visible to the public * * NMSA 1978, UJI Crim. 9.70 (Repl.Pamp.1982), delineates the elements of the offense of indecent exposure. The Committee Comment to UJI Criminal notes that the scope of the term \u201cpublic\u201d is not defined in the statute. The committee, without citing authority, interpreted the import of the statute to mean that it was designed to protect \u201cany group of persons who would ordinarily expect to be protected against a visual assault.\u201d In Robey v. State, 75 Misc.2d 1032, 351 N.Y.S.2d 788 (1973), a New York court construed the term \u201cpublic view\u201d as it was utilized in a New York statute and declared it to be a criminal offense for an individual to expose to public view a defaced United States flag or standard. The court interpreted the words \u201cpublic view\u201d literally and held that the placing of an American flag or banner on an interior wall of a mobile van did not constitute exposure to \u201cpublic view.\u201d\nIntent is an element of the crime of indecent exposure. Section 30-9-14. The intent necessary is a general intent, not a specific intent, i.e., it is not necessary that the exposure be made with the intent that some particular person see it, but only that the exposure be made where it is subject to being viewed by a person or persons which the law seeks to protect from exposure to such lewd conduct. To come within the reach of the offense of indecent exposure, the act must involve an open display of one\u2019s genital area coupled with the intent to indecently expose one\u2019s self. Unintentional or inadvertent acts involving exposure of a person\u2019s body to either an adult or child as a result of carelessness, particularly when the events occur in the privacy of one\u2019s home, do not constitute a criminal offense. Hearn v. District of Columbia, 178 A.2d 434 (D.C.App.1962). What constitutes a public place within the meaning of the statute depends on the circumstances of each case. Messina v. State, 212 Md. 602, 130 A.2d 578 (1957).\nSince the legislature has added the words \u201cpublic view\u201d to the first paragraph of the redrafted statute, the offense must be intentionally perpetrated in a place accessible or visible to the general public to come within the ambit of proscribed criminal behavior. The second paragraph of Section 30-9-14 provides that \u201cwhoever commits indecent exposure before a child under the age of thirteen is guilty of a misdemeanor.\u201d [Emphasis added.] This portion of the statute evinces an intent that the exposure, in order to constitute criminal conduct, need only occur in the presence of a single child. The first and second paragraphs of Section 30-9-14 read together indicate that the offense of indecent exposure occurs when the act is intentionally perpetrated before a child under the age of thirteen, in a place accessible or visible to the general public.\nGiven the legislative history, it may be that the words, \u201cpublic view\u201d were inadvertently inserted in the 1975 amendment. In practical effect, what the 1975 amendment accomplished was the broadening of situations in which adults can be the victims of indecent exposure and the narrowing of circumstances in which children are victimized by indecent exposures. Until the legislature sees fit to remedy this incongruity, however, we are bound to interpret the statute by its plain and clear meaning.\nIt is undisputed that the acts of defendant upon which the state relied to establish the convictions of indecent exposure occurred within the confines of a private residence. Defendant\u2019s acts were not subject to being viewed by the public generally or by persons situated outside the home. Under these facts, the evidence does not support a finding that defendant intentionally exposed himself to \u201cpublic view\u201d as proscribed by the statute. Compare State v. Leyba, 80 N.M. 190, 453 P.2d 211 (Ct.App.) (defendant\u2019s acts of indecently touching a minor and talking indecently to the child constituted contributing to the delinquency of a minor), cert. denied, 80 N.M. 198, 453 P.2d 219 (1969).\nDefendant\u2019s convictions of indecent exposure are reversed.\nIT IS SO ORDERED.\nBIVINS and MINZNER, JJ., concur.", "type": "majority", "author": "DONNELLY, Chief Judge." } ], "attorneys": [ "Paul G. Bardacke, Atty. Gen., Alicia Mason, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Janet Clow, Chief Public Defender, Lynne Fagan, Asst. Appellate Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "710 P.2d 99\nSTATE of New Mexico, Plaintiff-Appellee, v. Clifford ROMERO, Defendant-Appellant.\nNo. 8308.\nCourt of Appeals of New Mexico.\nOct. 17, 1985.\nCertiorari Denied Nov. 6, 1985.\nPaul G. Bardacke, Atty. Gen., Alicia Mason, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nJanet Clow, Chief Public Defender, Lynne Fagan, Asst. Appellate Defender, Santa Fe, for defendant-appellant." }, "file_name": "0532-01", "first_page_order": 570, "last_page_order": 574 }