APPEAL from the Circuit Court of McHenry County; the Hon.
LEONARD BRODY, Judge, presiding.
MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
The defendant was charged, by complaint, with the offense of public indecency in violation of section 11-9(a)(3) of the Criminal Code. (Ill. Rev. Stat. 1971, ch. 38, § 11-9(a)(3).) After a bench trial, he was found guilty and fined $100. He appeals claiming that he was not proven guilty beyond a reasonable doubt, that his actions did not occur in a public place, and that in reaching the decision the trial court erroneously considered a videotape of the defendant.
After an April 9 conversation with a neighbor of the defendant, a Crystal Lake police officer came to the neighbor's home at 4:30 P.M. on April 12, 1973. The neighbor had two minor daughters, approximately 13 and 14 years of age. The officer set up an observation post at the picture window of the neighbor's living room. The vantage, because of the grade of the lots, offered the officer a view of the neighbor's back yard, defendant's back yard, residence, and the interior of defendant's dining room which was visible through sliding glass doors. The two homes were approximately 70' apart, on back-to-back lots which were separated by a row of bushes.
At about 8:30 P.M., the officer (with his naked eye) observed the defendant, with a light overhead, stand up from the dining room table and, without any attempt to veil the glass doors, throw his bathrobe back behind his hips, expose his nude thigh and crotch area, take his penis into his hand and move his hand about. Defendant repeated these actions at different times during the course of approximately 30 minutes.
The officer had arrived equipped with a 35-mm. tripod-mounted still camera and a mounted videotape camera with a zoom lense. After observing the first incident, he started the videotape camera and manually operated the still camera. A 22-minute videotaping of the defendant and eight still photographs resulted. The still photographs, admitted into evidence over defendant's objections, corroborated the testimony of the officer concerning defendant's actions.
After first asking whether defense counsel had any objections, and having received a negative response, the trial court viewed the videotape. The State failed to formally introduce the videotape into evidence, and it is not part of the record before this court. The officer was the only witness to testify.
• 1-3 Defendant claims that he was not proven guilty beyond a reasonable doubt in that the evidence failed to show that it was his intent to arouse or to satisfy his own sexual desire. For a conviction under section 11-9(a)(3), it must be proved that a defendant has committed "a lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of the person." Committee Comments state:
"Subsection (a) (3) would replace the former statute aimed specifically at exhibitions (Ill. Rev. Stat. 1961, ch. 38, § 159a). The prevailing opinion is that the exhibitionist is much more offensive than he is dangerous * * *. It should be noted that the exposure necessary is an exposure of the `body' and not of a particular part. This does not imply an intent to regulate swim fashions or proscribe by state law the wearing of `short shorts' on public streets. The sexual intent qualification of the provision as drafted is deemed adequate to prevent such a stretch of this subsection. However, certain exposures of the body could occur which would justly deserve attention as shocking and disgusting public affronts." (S.H.A. ch. 38, § 11-9, 433. (1972).)
"* * * (Exhibitionists are said to gain sexual gratification from their acts by the shock and consternation caused in those to whom the exposure is made. * * *)" (S.H.A. ch. 38, § 11-9, 431-32 (1972).)
To sustain a conviction for this type of crime the evidence must be clear and convincing or substantially corroborated. (People v. Grear, 42 Ill.2d 578, 580 (1969).) The credibility and weight to be given the testimony of the witnesses is left to the trier of fact and his decision will be reversed only if the evidence is not sufficient to remove all reasonable doubt of defendant's guilt. (People v. Neidhofer, 126 Ill. App.2d 65, 68 (1970).) Intent is typically proved by circumstantial evidence and, in the absence of circumstances inconsistent with the requisite intent, intent is inferred from the evidence establishing the other essential elements of the crime. People v. Mikota, 1 Ill. App.3d 114, 118 (1971).
• 4 In the present cause, the officer testified that he observed the defendant at different times on the same evening stand up from his dining room table, throw his bathrobe back behind his hips, expose his nude crotch area, take his penis in his hand and move his hand about. The defendant performed these acts before unveiled glass doors, with a light overhead, in plain view of the casual observer in the neighbor's living room. The defendant made no attempt to conceal his activities. To the contrary, the evidence reveals that he did everything possible in order to expose his lewd acts to others. The still photographs substantially corroborate the officer's testimony. This evidence is clear, convincing and uncontradicted. It leaves no doubt that the defendant's intent was to gain sexual gratification by causing shock and consternation in those who observed his exhibition.
Defendant next contends that the interior of his dining room, which opens onto a private backyard bordered by a row of shrubbery, is not a "public place" within the meaning of the statute. Within the section charging the defendant, "public place" is specifically defined as "any place where the conduct may reasonably be expected to be viewed by others." (Ill. Rev. Stat. 1971, ch. 38, § 11-9(b).) In discussing what constitutes a public place, the Committee Comments state:
"Section 11-9(b) was added to forestall unnecessary ambiguities arising over the phrase `public place' absent statutory definition. It was considered by the Illinois Supreme Court in People v. Simcox, 379 Ill. 347, 40 N.E.2d 525 (1942). In reviewing a conviction under the `class libel' act (Ill. Rev. Stat. 1961, ch. 38, § 471), the court noted the variety of fine gradations of meaning that have been attached to the term and ruled that for purposes of that act, exhibition and sale of allegedy criminal matter in private homes by door to door solicitation was not distribution in a `public place.' The holding is a narrow one, one that can hardly be said to preempt further discussion of the meaning of the phrase in Illinois. The meaning which has been written into this section is one that is tailored specifically for the purposes of this section protection of the public from shocking and embarrassing displays of sexual activities.
Generally speaking, the `reasonable expectation of public view' test adopted, is but a minute refinement of the publicity test employed in the 1953 exhibitionist statute. It is the probability of public view that is crucial rather than the ownership or use of the particular real estate upon which the act occurs. For example, a person standing nude before a lighted window of his private apartment at night, adjacent to a well traveled public sidewalk would be, for purposes of this statute, in a public place. Contrawise, a couple in a parked car on a public right-of-way but in a lonely country lane might not ...