SailorsAllen Law

The Playbook to defend exposing yourself allegations

Sometimes you don’t intend to write a blog this week and then you see a published case about a guy who claims he was drugged when he smoked a hookah which impaired him to such a degree that he did not know he was exposing himself.

On July 5, 2015, the appellant approached a family gathering in the front yard of a residence in Minneapolis, exposed his penis, and danced provocatively.  So more risque than the Macarena.    He was charged with indecent exposure.  He challenged whether indecent exposure was a general intent or a specific intent crime.   The importance of this is – that with a specific intent crime you can use voluntary intoxication as a defense.   Which he wanted to do because his testimony was this:

Prior to the incident, he smoked what he believed to be shisha—a flavored tobacco consumed through a hookah—with some men he met that day. He testified that after smoking the substance, he felt dizzy and disoriented. His reaction to the substance intensified and he vomited, blacked out, and woke up in the jail hours later— with no recollection of the incident.

So the COA took a stab at this one as this is a tough nut to crack.

When a statute simply prohibits a person from intentionally engaging in the prohibited conduct, the crime is considered a general-intent crime.” State v. Fleck, 810 N.W.2d 303, 308 (Minn. 2012). A specific-intent crime “requires an intent to cause a particular result.” Id. (quotation omitted).  The easiest way to explain it is assault intent to inflict bodily harm is a general intent.  If you slug someone and you don’t hurt them, you general intent is to slug so that is an assault.  If you attempt to assault someone by causing fear of immediate bodily harm or death then that is a specific intent crime.  The first one you cannot use voluntary intoxication as a defense, the second one you can.

Here they argued because of a case in our Supreme Court named Perry.  In Peery, the supreme court held that, to sustain a conviction for indecent exposure that does not occur in a public place, “the evidence must be sufficient to sustain a finding that the misconduct complained of was committed with the deliberate intent of being indecent or lewd.” 224 Minn. at 351, 28 N.W.2d at 854.  So here, they wanted to say “deliberate intent to be lewd,” should be in the jury instructions.  And maybe his provocative dance was more Shakira “Hips Don’t Lie” than indecent.   But Perry was in a private place and rules for private parts are different in private places.  So Perry does not work.

So know we look at voluntary intoxication after the judge said there is no specific intent instruction. Minnesota law provides:

An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.

They look at three factors

(1) the defendant must be charged with a specific-intent crime; (2) there must be evidence sufficient to support a jury finding, by a preponderance of the evidence, that the defendant was intoxicated; and (3) the defendant must offer intoxication as an explanation for his actions.” State v. Torres, 632 N.W.2d 609, 616 (Minn. 2001).

Indecent exposure is a general intent crime so the court was justified in not giving the instruction.

So the final thing they looked was did the court error by not giving a voluntary intoxication instruction?

He pursued a theory of innocent-involuntary intoxication. Innocent-involuntary intoxication occurs “when intoxication results from an innocent mistake by the defendant about the character of the substance taken, as when another person has tricked him into taking the liquor or drugs.”

But since he never identified the source of the intoxication, other than tobacco from the Hookah for something else, didn’t show the reaction was caused by something else other than what he took, and because he hide from the officers and put his genitalia back in his pants; knew what he was doing was wrong.  So he loses.  But we all gain from his loss to learn that next time you get messed up and nakedly dance like Shakira in a public place – there is no defense to that.