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Inmates can still commit indecent exposure

A statute prohibiting indecent exposure by inmates does not pre-empt the common-law offense of indecent exposure, the Court of Appeals held Tuesday.

The decision affirms Daniel Genies’ conviction under the common law crime, even though a jury found him not guilty of the statutory offense. The difference is that the statute, §8-803 of the Correctional Services Article, requires proof that the inmate acted “with intent to annoy, abuse, torment, harass, or embarrass a correctional officer or authorized personnel.”

Genies was incarcerated in the Montgomery County Correctional Facility in 2008 when he masturbated in front of a female correctional officer while smiling and making eye contact with her, according to court documents. The officer ordered him to stop but he continued.

Tried for both offenses, Genies argued unsuccessfully that the statute pre-empts the common law offense. A jury acquitted Genies of the statutory offense, but convicted him of the common law offense. He was sentenced to three years in prison.

Genies later sought a new trial, saying the jurors had been intimidated during the decision process. The judge denied his motion without a hearing, and the Court of Special Appeals affirmed.

Genies then petitioned the state Court of Appeals on both pre-emption and the denial of his motion for a retrial.

On pre-emption, he contended that §8-803 “altered the belief that the common law offense of indecent exposure did not apply in a correctional facility.”

Genie argued that §8-803 was intended to narrow the scope of the common law in correctional facilities, so that inmates cannot be “charged under the common law offense for a strip search ordered by a correctional officer.”

He also contended that “because the common law and statutory offenses share the same penalty, three years imprisonment and $1,000 fine maximum penalty that §8-803 was intended to supersede the common law offense.”

The court disagreed on both counts, in a 4-2 decision. (Judge Joseph F. Murphy Jr., who retired in September, heard argument as a recalled judge last October; however, he went into private practice the following month and did not participate in the adoption of the opinion.)

“Section 8-803 was intended to serve as a discrete offense, supplementing rather than supplanting the common law, so both prevail,” Judge Lynne A. Battaglia wrote for the majority.

Chief Judge Robert M. Bell dissented, joined by Judge Clayton Greene, Jr.

“Preemption may be implied; it need not always be express,” Bell noted.

“In fact, in my view, the facts of this case, and the legislative history of §8-803 demonstrate that the statute was intended, clearly and specifically, to preempt that category of common law indecent exposure in which an inmate exposes him or herself, in the correctional setting, to a correctional officer or authorized personnel,” Bell wrote.

Brian Kleinbord, chief of the Criminal Appeals Division in the Office of the Attorney General, did not return calls for comment. Assistant Public Defender Bradford Peabody, who represented Genies, said he could not comment on the case.

BATTAGLIA

WHAT THE COURT HELD

Case:

Daniel Genies v. State, CA No. 11, Sept. Term 2011. Argued Oct. 6, 2011. Decided May 1, 2012. Reported. Opinion by Battaglia, J.

Issue:

Did the lower court err in ruling that a state law prohibiting indecent exposure by inmates does not preempt a common law offense of indecent exposure?

Holding:

No, affirmed. The state law regarding indecent exposure by inmates was intended to supplement, not supplant the common law.

Counsel:

Asst. PD Bradford Peabody for petitioner; Chief of AG Criminal Appeals Division Brian Kleinbord for respondent.

RecordFax #12-0501-21 (26 pages)