Appeal from the Superior Court of the District of Columbia (D-2773-03) (Hon. Erik P. Christian, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before GLICKMAN, KRAMER and FISHER, Associate Judges.
The appellant, David Parnigoni, challenges his convictions for two counts of indecent exposure, arguing that they should be overturned because the language of the statute under which he was convicted is unconstitutionally vague. He asserts that the conviction involving a young boy, O.J., eleven years old at the time of the events at issue, should be overturned on the additional grounds that the conduct was private, consensual and, according to Parnigoni, therefore not prohibited under the law. He further argues that the other conviction involving O.J.'s father, J.J., should be overturned because the evidence was insufficient to show that J.J. viewed his exposed genitalia, as the law requires, or if so, that the exposure was intentional. We affirm the convictions.
The factual background of this matter is as follows: Parnigoni had worked at Janney Elementary School, where he befriended O.J. and his family.*fn1 Over the course of several years,*fn2 Parnigoni spent considerable time with O.J., and the family grew to trust him, treating him as a family member and giving him keys to their home.
On the day of the events at issue here, the then--thirty-three-year-old Parnigoni spent the day with the then eleven-year-old O.J. That afternoon, the two were alone in O.J.'s home when Parnigoni suggested that they play a game of ping-pong. O.J. agreed, and they went into the basement where there was a ping-pong table. Parnigoni suggested an additional rule for this particular game of ping-pong: that whoever lost a game would have to play the next game naked. O.J. agreed to play according to that rule and proceeded to beat Parnigoni at the first game they played. Parnigoni then took off all of his clothes and began to play the next match naked. O.J. testified that he was able to see Parnigoni's "whole body except for his legs down," including his "private parts."
At about 2:45 p.m., while Parnigoni and O.J. were still in the basement playing their second game of ping-pong, O.J.'s father, J.J., returned home. J.J. was running late for a dentist appointment and was stopping at home to pick up his son to take him to the appointment as well. While J.J. was still outside, walking to the front door, he heard the sound of ping-pong being played from the basement window wells. He then walked through the house, down the stairway to the basement and had almost reached the bottom when he observed Parnigoni facing him, completely naked.*fn3 Once Parnigoni noticed that J.J. had come down the steps into the basement, he acted surprised, covered his genitals and ran to a nearby bathroom which was five to six feet from the ping-pong table.
Parnigoni was subsequently arrested and charged with two counts of indecent exposure, one as to J.J. and one as to O.J. At the conclusion of a jury trial, he was found guilty of both offenses.*fn4
We first address Parnigoni's argument that his convictions for indecent exposure should be vacated because the statute under which he was charged is unconstitutionally vague:
A criminal statute is void on vagueness grounds when it provides no standards by which conduct falling within its scope may be ascertained. Such a statute infringes upon due process rights by failing to provide fair warning of what is prohibited and inviting capricious and arbitrary enforcement by public officials.
Leiss v. United States, 364 A.2d 803, 806 (D.C. 1976); see also Parker v. Levy, 417 U.S. 733, 752 (1974) (quoting Smith v. Goguen, 415 U.S. 566, 572-573 (1974) ("The doctrine [of void for vagueness] incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent 'arbitrary and discriminatory enforcement.'")). When addressing the vagueness doctrine, the Supreme Court has said that "clarity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute." United States v. Lanier, 520 U.S. 259, 266 (1997), quoted in McNeely v. United States, 874 A.2d 371, 382 n.14 (D.C. 2005). ...