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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                               This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
November 4, 2004
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                               petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                                       Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                                and RULE 809.62.
                                                                                                                                                                Cir. Ct. No.   03CM001502
Appeal No.                                                                                    04-1181-CR
STATE OF WISCONSIN                                                                                                                                              IN COURT OF APPEALS
                                                                                                                                                                DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JAMES E. MILLER,
DEFENDANT-APPELLANT.
APPEAL from a judgment and orders of the circuit court for Dane
County:   DAVID T. FLANAGAN, Judge.   Affirmed.
¶1                                                                                            HIGGINBOTHAM, J.1    James E. Miller was found guilty by a jury
of lewd and lascivious behavior in violation of WIS. STAT. § 944.20(1)(b).   The
trial court entered a judgment of conviction after denying Miller’s postconviction
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2001-02).
All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.




No.   04-1181-CR
motions for a directed verdict and a judgment notwithstanding the verdict.   Miller
appeals the judgment of conviction and the orders denying his postconviction
motions.   Miller grounds his appeal on insufficiency of the evidence and error by
the trial court in finding that § 944.20(1)(b) was not unconstitutionally broad and
vague.    We conclude the evidence was sufficient to support the jury’s verdict
against him; we further conclude the trial court did not err in its ruling on the
constitutionality of § 944.20(1)(b).   We affirm the judgment and orders.
FACTS
¶2                                                                                          On Saturday, March 29, 2003, at approximately 11:15 a.m., City of
Madison police officer Jason Sweeney was on patrol at Olin Park; Olin Park is a
public park consisting of a boat launch, wooded conservatory and large shelter
rented out for parties and other public events.   Olin Park has two parking lots, a
north lot used  primarily for the boat launch, and a southern,  smaller lot that
connects  to  the  conservatory.    Testimony  at  trial  established  that  there  is  a
thoroughfare connecting the two parking lots, a “loop” which winds up and around
the shelter, located at the top of a hill.   A playground is near the shelter.   The
“loop” is, in essence, a circle in which you enter and exit from the same road; the
road is one-way.   This “loop” is the sole means of ingress and egress via land, is
frequently traveled and is one in which the public parks their cars to view the state
capitol and to use the playground.
¶3                                                                                          While  on  patrol  this  particular  Saturday,  Sweeney  observed
numerous parked cars in the large turn area near the shelter.   Sweeney testified
that  citizens  and  Madison  park  employees  had  complained  about  the  regular
occurrence of overt sexual activity in this area.   Sweeney began monitoring these
cars for any such activity.
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No.   04-1181-CR
¶4                                                                                        Sweeney observed a 1989 Nissan Sentra parked on the side of the
road, approximately 150-200 feet from the playground.   The car was a small, two-
door model sitting low to the ground; the car windows were not tinted.   Upon
approaching the vehicle on foot, Sweeney looked inside and observed a man, later
identified  as  Miller,  with  his  pant’s  zipper  undone  and  his  semi-erect  penis
sticking out being held by Miller’s left hand.   With his other hand, Miller was
observed pouring mouthwash onto his penis and rubbing it around.   At that time it
was bright outside and Sweeney had no difficulties observing Miller’s activities
inside the car.   Sweeney noted that if a family intended to use the playground, they
would have to pass by Miller’s car.
¶5                                                                                        Miller was subsequently charged with lewd and lascivious behavior
in violation of WIS. STAT. § 944.20(1).   A jury found Miller guilty and the trial
court denied Miller’s motion for directed verdict.   Miller then moved for judgment
notwithstanding the verdict, which was also denied.   Miller appeals.
DISCUSSION
¶6                                                                                        WISCONSIN STAT. § 944.20 prohibits lewd and lascivious behavior
and provides
(1) Whoever does any of the following is guilty of a Class
A misdemeanor:
(a) Commits an indecent act of sexual gratification with
another with knowledge that they are in the presence of
others; or
(b) Publicly and indecently exposes genitals or pubic area.
(2) Subsection  (1) does not apply to a mother’s breast-
feeding of her child.
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No.   04-1181-CR
Miller argues that the State failed to produce sufficient evidence supporting a
finding  of  guilt  beyond  a  reasonable  doubt  on  elements  one  and  two  of
§ 944.20(1)(b)2, that he exposed his genitals and that he did so  publicly.    In
essence, Miller challenges the sufficiency of the evidence presented at trial on
these two elements.
¶7                                                                                                     We  will  uphold  a  conviction  unless  the  evidence  viewed  most
favorably to the State and the conviction is so lacking in probative value that no
reasonable  jury could  have  found  guilt  beyond  a  reasonable  doubt.    State  v.
Poellinger,                                                                                            153  Wis. 2d  493,  501,  451  N.W.2d  752  (1990).    Once  the  jury
considers the evidence and draws the inferences necessary to support guilt, we
cannot reject those inferences unless the evidence is incredible as a matter of law.
Id.  at                                                                                                506-07.    If  any  possibility  exists  that  the  jury  could  have  drawn  the
appropriate inferences from the trial evidence to find guilt, we may not overturn
the verdict.   Id. at 507.
¶8                                                                                                     Miller does not dispute the facts.    Rather, Miller argues that the
undisputed facts fail to establish beyond a reasonable doubt he was guilty of lewd
and lascivious behavior.   We disagree.
¶9                                                                                                     We first note that Miller fails to apply the proper legal analysis for
determining whether the evidence was sufficient to support the verdict.   Instead,
2  To establish lewd and lascivious behavior, the State must prove (1) that the defendant
exposed, i.e. exhibited to the view of another person or persons, his or her genitals or pubic area;
(2) that the defendant exposed his or her genitals or pubic area publicly, that is, not in a hidden
manner but open to view; and (3) that the defendant exposed his or her genitals or pubic area
indecently.                                                                                            “Publicly” means in such a place or manner that the person knows or has reason to
know that the conduct is observable by or in the presence of other persons.”   WIS JI—CRIMINAL
1544.
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No.   04-1181-CR
Miller engages in an extended discussion of the facts in an attempt to show that
under his view of what “public” and “exhibit” mean in the context of WIS. STAT.
§ 944.20(1)(b), it was  unreasonable  for  the  jury to find,  and for  the  court to
uphold, that Miller engaged in an indecent act in public by exhibiting his genitals.
The proper approach to analyzing this case is to determine whether, based on
WIS JI—CRIMINAL  1544,  the  evidence  was  sufficient  to  establish  that  Miller
exhibited to another person his genitals publicly and that the exposure of his
genitals was indecent.   We do that here.
¶10    We first examine WIS JI—CRIMINAL 1544 to place our discussion in
context.   Lewd and lascivious behavior under WIS. STAT. § 944.20(1)(b) consists
of three elements:  (1) the defendant exposed his genitals,  “expose” meaning to
exhibit to the view of another person or persons; (2) the defendant exposed his
genitals publicly, that is, not in a hidden manner, but open to view; “publicly”
means in such a place or manner that the person knows or has reason to know that
the conduct is observable by or in the presence of other persons; and  (3) the
defendant exposed his genitals indecently.
¶11    Miller argues the evidence of record cannot support a finding of guilt
beyond a reasonable doubt because the evidence fails to establish he exposed his
genitals to the public.   More specifically, relying on two out-of-state cases, State v.
Broad, 61 Haw. 187, 600 P.2d 1379 (1979), and Commonwealth v. Ferguson,
384 Mass. 13, 422 N.E.2d 1365 (1981), Miller contends that his parked vehicle,
albeit in a public park in broad daylight, was a private place at the time of his
indecent acts and arrest.   Miller bases this argument on several factors: the only
witness to the indecency was the arresting officer, who approached the vehicle for
the singular purpose of viewing any possible indecency; the only way by which
the officer could observe the indecent acts performed by Miller was by being in
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No.   04-1181-CR
close proximity to Miller’s vehicle; and  “there was reasonable doubt that the
general public would be in such a position” to observe Miller while performing his
indecent acts as the public walked past his parked vehicle.
¶12    Viewed most favorably to the State, we conclude the evidence is
more than sufficient to support the jury’s verdict in this case.   Sweeney testified
that as he approached the car, he had a clear view of Miller’s penis; that he saw
Miller’s zipper was undone with his penis sticking out; that Miller’s penis was
semi-erect; that Sweeney had a clear view into the car; that the car had no tinted
windows or other obstructions; that the car sat low to the ground; and that it was
bright outside.   Miller’s car was parked on the side of a main, frequently traveled
public road in a public park near a playground.   The behavior at issue occurred in
the middle of a public park at lunchtime on a sunny Saturday.    The evidence
supports the inference that Miller knew or had reason to know that by parking in a
public parking lot of a public park and by exposing his genitals there, his genitals
would be “open to view” to other persons.   Indeed, that is precisely what occurred
here.
¶13    Miller attempts to distinguish the facts of this case where the person
observing the indecent exposure was a police officer looking through Miller’s car
window to determine whether illicit activity was in progress from the typical case
of a pedestrian passerby who inadvertently observes a person sitting in his vehicle
indecently exposing himself.    Miller’s distinction is without a difference.    The
police officer that observed Miller’s actions is a member of the public and may
also be a victim of a crime.   Miller’s arguments to the contrary are without merit.
Indeed, Miller’s car was parked in a location and at a time of day such that any
citizen could have walked up to the window of his car and observed the same
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No.   04-1181-CR
conduct as observed by the police officer.   The fact that the person observing the
indecent conduct was a police officer is of no consequence.
¶14    Miller also argues that the exposure was concealed, that he did not
intend for others to view him and that the exposure occurred at a time and place
where  he  had  a  reasonable  expectation  of  privacy.    First  of  all,  WIS.  STAT.
§ 944.20(1)(b) does not require a finding of intent.   Thus his argument that he did
not intend for others to view him is irrelevant.   In addition, the evidence of record
supports the inference that the indecent exposure occurred at a time and place
where Miller had no reasonable expectation of privacy.    As discussed earlier,
Miller was sitting in his car while parked in a public parking lot in a public park
on a sunny, late winter day in a place where anyone attempting to access the park
must pass his car.   Although the evidence shows that no one else was walking
around in the park when Miller committed the indecent acts, § 944.20(1)(b) simply
requires the State to prove that Miller’s genitals were exposed or exhibited to the
view of one or more persons.   In this case, that person was a police officer.   We
conclude the evidence was sufficient for the jury to find Miller guilty of lewd and
lascivious behavior under § 944.20(1)(b).
¶15    Miller next argues that the trial court’s decisions on the motion for a
directed verdict and the motion for judgment notwithstanding the verdict were
“both too broad and too vague to meet the standards of law.”    It is not clear
whether Miller is arguing that the WIS. STAT.  § 944.20 standards for the term
“public” are vague and overbroad or if the trial court’s decisions on his motions
are vague and overbroad.   In any event, we reject his arguments.
¶16    At first blush, Miller appears to argue that the trial court’s decision
itself was vague and overbroad.   However, Miller provides no legal authority that
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No.   04-1181-CR
a trial court decision must be written with a certain degree of specificity in order to
be valid.   Certainly, a clear and understandable written decision by a trial court is
desirable.     However,  we  decline  to  address  issues  inadequately  briefed  or
unsupported by legal authority.   State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d
633 (Ct. App. 1992).
¶17    We turn to the other possible argument, that WIS. STAT. § 944.20(1)
is  vague  and  overbroad  as  applied  to  Miller.                                       Whether  a  statute  is
unconstitutionally vague is a question of law.   State v. Pittman, 174 Wis. 2d 255,
276, 496 N.W.2d 74 (1993).  A vagueness challenge must satisfy a two-prong test:
The first prong of the  vagueness test is concerned with
whether the statute sufficiently warns persons ‘wishing to
obey  the  law  that                                                                      [their]                   ...  conduct  comes  near  the
proscribed  area.’    The  second  prong  is  concerned  with
whether those who must enforce and apply the law may do
so without creating or applying their own standards.
Id. (citations omitted).   A statute is not unconstitutionally vague “simply because
in some particular instance some type of conduct may create a question about its
impact under the statute.”   State v. Smith, 215 Wis. 2d 84, 91-92, 572 N.W.2d 496
(Ct.  App.                                                                                1997)                     (citation  omitted).    Furthermore,  a  statute  or  ordinance  is
overbroad when its language, given its normal meaning, is so sweeping that its
sanctions may be applied to conduct which the state is not permitted to regulate.
State v. Tronca, 84 Wis. 2d 68, 88-89, 267 N.W.2d 216 (1978).   However, there is
a  strong  presumption  a  legislative  enactment  is  constitutional  and  the  party
challenging the constitutionality of a statute must establish beyond a reasonable
doubt that the statute is unconstitutional.   State v. Chvala, 2004 WI App 53, ¶9,
271 Wis. 2d 115, 678 N.W.2d 880.
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No.   04-1181-CR
¶18    Miller does not address either above-mentioned standard of review
in his appellate brief, providing no discernable arguments concerning the supposed
vagueness or overbreadth of WIS. STAT. § 944.20(1).   Again, ordinarily we will
not address issues inadequately briefed or unsupported by legal authority. See
Pettit, 171 Wis. 2d at 646.   In addition, the Attorney General was not served with
notice  of  Miller’s  constitutional  objection  to                                     § 944.20(1).     See  WIS.  STAT.
§ 806.04(11).   Failure to serve the Attorney General with notice of allegations that
a statute is unconstitutional deprives the court of jurisdiction to hear the matter.
See Bollhoffer v. Wolke,  66 Wis. 2d  141,  144,  223 N.W.2d  902  (1974).    We
conclude we lack jurisdiction to address this issue.
CONCLUSION
¶19    The record contains sufficient evidence to support the jury’s verdict
that Miller was guilty beyond a reasonable doubt of lewd and lascivious behavior
contrary to WIS. STAT. § 944.20(1).   We therefore affirm the judgment and orders
of the trial court.
By the Court.—Judgment and orders affirmed.
This opinion will not be published.   WIS. STAT. RULE 809.23(1)(b)4.
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