
    CIRCUIT COURT OF LOUDOUN COUNTY
    Commonwealth of Virginia v. Luis Alberto Rodriguez
    August 26, 1996
    Case No. (Criminal) 10008
   By Judge Thomas D. Horne

This case came before the Court for trial, without a jury, on pleas of not guilty to the two felony counts of the indictment charging the defendant with repeated violations of § 18.2-370, Code of Virginia. The statute alleged to have been violated by the defendant provides, inter alia, that it is unlawful for:

[a]ny person eighteen years of age or over, who, with lascivious intent, [to] knowingly and intentionally: (1) Expose his . . . sexual or genital parts to any child under the age of fourteen years to whom such person is not legally married ....

In the instant case, the court finds that the defendant exhibited to persons proscribed by the statute a videotape containing footage of his wife performing fellatio upon the defendant. In the tape, he is portrayed with an erect penis.

Had such a display of the person of the defendant taken place at his invitation and in the presence of these children, the Court would have little difficulty in finding him guilty of the felony. However, in the instant case, although he invited the attention of the children to the tape, the exposure of the children to the display of his person was limited to that shown on the videotape.

At common law, indecent exposure might occur in places where the display of the person would likely be seen by the casual observer. The record is devoid of any evidence that others were present at the time the defendant and his wife made the visual record of their intimate sexual contact or that they did so with lascivious intent. More importantly, the General Assembly has distinguished between the obscene displays of the person and the display of obscene items. See, e.g., § 18.2-373, Code of Virginia. In the instant case, the defendant displayed an obscene item to children, albeit containing a depiction of both him and his wife.

While the Defendant’s conduct in this case is reprehensible and may be violative of other statutes, it does not constitute a violation of § 18.2-370, Code of Virginia. Accordingly, the Defendant will be found not guilty of the charges against him and the indictments dismissed.  