Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 62673-6
Title of Case: State, Res. V. Jeffrey L. Vars, App.
File Date: 08/16/2010
SOURCE OF APPEAL
Appeal from King County Superior Court
Docket No: 08-1-02338-5
Judgment or order under review
Date filed: 11/17/2008
Judge signing: Honorable Steven C Gonzalez
Authored by J. Robert Leach
Concurring: Mary Kay Becker
COUNSEL OF RECORD
Counsel for Appellant(s)
Washington Appellate Project
Attorney at Law
1511 Third Avenue
Seattle, WA, 98101
Lila Jane Silverstein
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3647
Counsel for Respondent(s)
Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104
Randi J Austell
Attorney at Law
King Co Pros Attorney
516 3rd Ave Ste 5th
Seattle, WA, 98104-2385
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) NO. 62673-6-I
Respondent, ) DIVISION ONE
) PUBLISHED OPINION
JEFFREY L. VARS, )
Appellant. ) FILED: August 16, 2010
Leach, A.C.J. -- Jeffrey Vars appeals his convictions for two counts of
indecent exposure with sexual motivation. He challenges the sufficiency of the
evidence to establish that he exposed his genitalia, that he knew that this
exposure would cause affront or alarm, and that he did so with sexual
motivation. He also claims that one of his convictions violates double jeopardy
because the two counts were based on separate witness observations during a
single extended period of exposure.
Because a witness need not observe the defendant's exposed genitalia
and the State presented sufficient circumstantial evidence that Vars exposed
himself with the knowledge that he was likely to cause reasonable affront or
alarm, sufficient evidence supports one conviction for indecent exposure. A
reasonable trier of fact could infer from the evidence that Vars's actions were
sexually motivated. But because his behavior constituted only a single unit of
prosecution, one of his two convictions violates double jeopardy. We affirm in
NO. 62673-6-I / 2
part, reverse in part, and remand.
At around 2:00 a.m., May 3, 2008, Jeffrey Vars drove to a Kirkland
neighborhood, parked his car, removed his clothing, and began wandering
naked through the streets. Approximately 30 minutes later, A.C. looked out the
bedroom window on the second story of his condominium and saw a man, later
identified as Vars, walking swiftly down the street. Vars was "completely nude"
except for his shoes. A.C. felt ambivalent about the sighting, but since he
considered the conduct inappropriate, he decided to call 911. A.C. saw Vars's
buttocks but he did not see his genitalia.
Shortly after 5:00 a.m., D.B. was driving his car in the area when a man,
later identified as Vars, ran across his headlights. D.B. could see that Vars was
naked, though he appeared to be wearing a ski mask. Vars held his hands "up
in sort of a menacing kind of posture." D.B. pulled into the post office parking lot
and observed Vars crouching in the bushes along the road and watching him as
D.B. turned his car around. D.B. called 911 and reported the sighting to the
police. Like A.C., D.B. saw Vars's buttocks but not his genitalia.
Officer Spak responded to these two calls but was unable to locate
anyone. About an hour after D.B.'s call, Officer Spak observed Vars, still nude,
but holding a bundled garment in front of his genitalia. When the officer's patrol
car became visible, Vars fled. Soon afterward, Officers Anderson and Davidson
found Vars naked and squatting against a fence. As they approached, Vars
NO. 62673-6-I / 3
again turned and ran into a nearby business lot. The officers pursued and
eventually found him pulling on a pair of pants and wearing a black stocking cap,
shoes, and a gray shirt. A large 10-inch rip ran along the left leg of his pants,
allowing the officers to notice that he was not wearing any underwear. After the
officers read Vars his Miranda1 warnings, he denied walking nude through the
neighborhood. He claimed to be in the area looking for a place to defecate. A
car registered to Vars was found 15 blocks from where he was arrested.
The State charged Vars with two counts of indecent exposure, each
committed with an aggravating factor, sexual motivation. Vars waived his right to
a jury trial and stipulated to facts underlying eight prior convictions for indecent
exposure, two of which were felonies. The State moved in limine to admit
evidence of these prior convictions under ER 404(b). The court granted the
motion as to three convictions for the purposes of showing common scheme or
plan, knowledge, absence of mistake or accident, and sexual motivation.
The first of these prior convictions stemmed from an April 2000 incident
when Vars was near Interstate 90 at 4:50 a.m. He was naked, except for his
shoes and socks, and holding a jar of Vaseline. When the officer approached,
Vars ran until the officer caught up with him. His car was parked at the end of a
bike path, and his clothes were folded neatly underneath the driver's seat.
The second conviction resulted from a December 2000 incident where
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
NO. 62673-6-I / 4
Vars was observed standing nude, with the exception of his shoes and socks, in
a gas station parking lot in Renton just after 1:00 a.m. When the officer asked
what he was doing, he replied that he was looking for a place to defecate.
The third conviction arose from an August 2004 incident. At 6:30 p.m. a
witness saw Vars jump in and out of the roadside bushes while keeping a watch
on the witness. Vars was naked except for his shoes and socks. When the
police arrived, Vars attempted to flee. When caught, he explained to the officer
that he needed a place to defecate, took exit 31, and did not see any of the
nearby restaurants or gas station.
The court found Vars guilty on both counts and that he had committed
each count with sexual motivation. He received two concurrent 60-month
This appeal followed.
Vars first argues that the State failed to present sufficient evidence of an
indecent exposure as none of the witnesses saw his naked genitalia. He also
contends that since he was in a dark residential area in the very early hours of
the morning, the State failed to prove that he knew that his conduct was likely to
cause reasonable affront or alarm.
Whether the State must prove that a witness observed the defendant's
naked genitalia as an element of the crime of indecent exposure is a matter of
first impression for Washington courts. We review de novo this question of law.2
NO. 62673-6-I / 5
The relevant statute, RCW 9A.88.010, provides,
(1) A person is guilty of indecent exposure if he or she intentionally
makes any open and obscene exposure of his or her person or the
person of another knowing that such conduct is likely to cause
reasonable affront or alarm. The act of breastfeeding or expressing
breast milk is not indecent exposure.
(2)(a) Except as provided in (b) and (c) of this subsection,
indecent exposure is a misdemeanor.
(b) Indecent exposure is a gross misdemeanor on the first
offense if the person exposes himself or herself to a person under
the age of fourteen years.
(c) Indecent exposure is a class C felony if the person has
previously been convicted under this section or of a sex offense as
defined in RCW 9.94A.030.
This statute does not define or expressly incorporate any definition for the
phrase "any open and obscene exposure of his or her person." "'When a statute
fails to define a term, the term is presumed to have its common law meaning and
the Legislature is presumed to know the prior judicial use of the term.'"3 Since at
least 1966, Washington common law has defined this phrase as "a lascivious
exhibition of those private parts of the person which instinctive modesty, human
decency, or common propriety require shall be customarily kept covered in the
presence of others."4 This conduct is the essence of the crime of indecent
2 State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005) (questions of
statutory construction are reviewed de novo).
3 State v. Torres, 151 Wn. App. 378, 384-85, 212 P.3d 573 (2009)
(quoting State v. McKinley, 84 Wn. App. 677, 684, 929 P.2d 1145 (1997)).
4 State v. Galbreath, 69 Wn.2d 664, 668, 419 P.2d 800 (1966).
5 State v. Eisenshank, 10 Wn. App. 921, 924, 521 P.2d 239 (1974)
NO. 62673-6-I / 6
In State v. Eisenshank,6 the court examined the elements of indecent
exposure. It concluded that the essential elements of indecent exposure do not
include any distressing emotion experienced by the person in whose presence
the exposure occurred.7
The offensive exhibition in the presence of another . . . [is] not
necessarily an assault or a personal offense against the individual
in whose presence the exhibition takes place. Creation of a sense
of shame or other distressing emotion is not an essential element
of the crime. It is sufficient if the acts are such that the common
sense of society would regard the specific act performed as
indecent and improper.
Thus, "the crime [of indecent exposure] is completed when the inappropriate
exhibition takes place in the presence of another,"9 without any consideration of
that person's response.
If the subjective experience of the witness is immaterial to guilt, then so
too is the witness's observation of the offender's genitalia. Simply because
RCW 9A.88.010 requires an exposure of genitalia in the presence of another, it
does not mean that the other person must observe the defendant's private parts
for an indecent exposure to have occurred. As previously noted, the gravamen
of the crime is an intentional and "obscene exposure" in the presence of another
6 10 Wn. App. 921, 521 P.2d 239 (1974). Eisenshank was charged under
former RCW 9.79.080(2) and RCW 9.79.120. The basis for these crimes was
indecent exposure. The "public indecency" statute, former RCW 9A.88.010, was
renamed "indecent exposure" in a 1987 amendment. See Laws of 1987, ch.
277, § 1 (1987). Accordingly, Eisenshank is pertinent to our decision in this
7 Eisenshank, 10 Wn. App. at 924.
8 Eisenshank, 10 Wn. App. at 924 (citation omitted).
9 Eisenshank, 10 Wn. App. at 924.
NO. 62673-6-I / 7
that offends society's sense of "instinctive modesty, human decency, and
common propriety." So long as an obscene exposure takes place when another
is present and the offender knew the exposure likely would cause reasonable
alarm, the crime has been committed.
A California case, People v. Carbajal,10 addressed this issue under a
similarly worded indecent exposure statute and reached the same result. There,
a witness had twice observed the defendant enter the restaurant and, after
eating, place his hand inside his pants and move his hand up and down.11 On
the second occasion, the witness watched the defendant wipe his hand with a
napkin and place a newspaper over a puddle of what appeared to be semen.12
The court affirmed the conviction for indecent exposure despite the absence of
any actual observation of naked genitalia because "there is no concomitant
requirement that such person actually must have seen the defendant's
genitals."13 Rather, the court concluded, indecent exposure may be proved by
circumstantial evidence sufficient to support the conclusion that an exposure
Here, the issue is whether sufficient circumstantial evidence exists to
prove that Vars intentionally exposed himself in the presence of another and in a
manner likely to cause affront or alarm.15 Sufficient evidence supports a
10 114 Cal. App. 4th 978, 986, 8 Cal. Rptr. 3d 206 (2003).
11 Carbajal, 114 Cal. App. 4th at 981.
12 Carbajal, 114 Cal. App. 4th at 981.
13 Carbajal, 114 Cal. App. 4th at 986.
14 Carbajal, 114 Cal. App. 4th at 986.
NO. 62673-6-I / 8
conviction when, after viewing all the evidence, a rational trier of fact could find
the essential elements of the crime proved beyond a reasonable doubt.16 This
test admits the truth of the State's evidence.17 All reasonable inferences are
drawn in the prosecution's favor and interpreted most strongly against the
The trial court in this case found that on May 3, 2008, at 2:37 a.m., A.C.
"observed the defendant walking naked down the street, wearing some form of
shoes and carrying something in his hands. . . . and called 911 to report the
incident to the police." Approximately three hours later, D.B. observed the
defendant cross the street in front of his car. "The defendant was naked,
wearing a black ski mask over his head and his arms were in the air. Once the
defendant cleared the street, he crouched down in the bushes along the road
and observed D.B. turn his car around." An hour later, Officer Spak observed
the defendant "walking . . . nude, partially covering his genitals with a garment."
15 The cases Vars cites do not alter our analysis. In Duvallon v. District of
Columbia, 515 A.2d 724 (D.C. 1986), the issue was whether a woman who
exposed her bare buttocks while wearing a cardboard sign over her naked body
as a form of political protest committed indecent exposure under D.C. Code.
Duvallon, 514 A.2d at 724-25. Notably, the defendant never exposed her
reproductive organs. And in People v. Massicot, 97 Cal. App. 4th 920, 118 Cal.
Rptr. 2d 705 (2002), the court determined that a man who repeatedly flashed a
woman while wearing a pair of woman's underwear did not commit indecent
exposure. Massicot, 97 Cal. App. 4th at 932. Again, the defendant never
exposed his reproductive organs. Because neither case involves an exposure of
naked genitalia, these courts did not address whether a witness observation of
naked genitalia is a necessary element of the crime.
16 State v. Mines, 163 Wn.2d 387, 391, 179 P.3d 835 (2008).
17 State v. Gohl, 109 Wn. App 817, 823, 37 P.3d 293 (2001).
18 State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006).
NO. 62673-6-I / 9
Officers Anderson and Davidson also observed the defendant naked on the
street squatting against a fence. When they approached, Vars ran into the lot of
a nearby business. When the officers caught Vars, he was pulling on his pants,
which had a 10- inch tear along the thigh allowing the officers to notice that he
was not wearing underwear.
These unchallenged findings are verities on appeal.19 And since they
indicate that Vars was "nude" and was seen walking "naked" through a
residential neighborhood with his arms in the air, the record contains sufficient
circumstantial evidence for a rational, objective trier of fact to conclude that Vars
exposed his genitalia in the presence of another.
The record also contains sufficient evidence to conclude that Vars knew
that this exposure was likely to cause reasonable affront or alarm. Over the
course of a three hour period, Vars intentionally removed his clothing and
walked 15 blocks through a residential neighborhood in the very early hours on
a Saturday morning. When he knew he was being watched, he furtively
crouched in roadside bushes, and when officers arrived, he attempted to flee the
scene of the crime. He did all this with a history of eight prior convictions for
indecent exposure, three of which were admitted in this case under ER 404(b) to
prove that he knew his conduct was likely to cause alarm.20 From the foregoing
evidence, we conclude that a rational trier of fact could have found each element
19 State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
20 Vars does not challenge the admission of these convictions for this
NO. 62673-6-I / 10
of indecent exposure proved beyond a reasonable doubt.
Turning to Vars's second argument, he claims that it was a manifest
abuse of discretion for the trial court to admit evidence of his prior indecent
exposure offenses under ER 404(b). He also alleges that, even if the prior
convictions were properly admitted, they were insufficient to support the
inference that his current offense was committed with sexual motivation.
Under the Sentencing Reform Act of 1981 (SRA), a finding of sexual
motivation is an aggravating circumstance that can support an exceptional
sentence.21 When the State charges a nonsex offense crime and "sufficient
admissible evidence exists, which, when considered with the most plausible,
reasonably foreseeable defense that could be raised under the evidence, would
justify a finding of sexual motivation by a reasonable and objective fact finder,"
RCW 9.94A.835(1) requires the filing of a special allegation of sexual
motivation. Sexual motivation means that one of the purposes for which the
defendant committed the crime was for the purpose of his or her sexual
gratification."22 In sum, the State must prove beyond a reasonable doubt that the
defendant committed the crime for the purposes of sexual gratification. It must
do so with evidence of identifiable conduct by the defendant while committing
In this case, the trial court based its finding of sexual motivation on the
21 RCW 9.94A.535(3)(f).
22 RCW 9.94A.030(43).
23State v. Halstien, 122 Wn.2d 109, 126, 857 P.2d 270 (1993).
NO. 62673-6-I / 11
three prior convictions for indecent exposure admitted under ER 404(b) to
establish motive. Thus, we must first decide whether the trial court properly
admitted evidence of Vars's prior convictions and, if so, whether this evidence
supports its finding that Vars's conduct was sexually motivated.
"The admission of evidence lies largely within the sound discretion of the
trial court."24 We will not disturb a trial court's determination to allow certain
evidence absent a manifest abuse of discretion.25 A trial court abuses its
discretion when it bases its decision on untenable grounds or reasons.26
ER 404(b) states:
Other Crimes, Wrongs, or Acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person
in order to show action in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.
To admit evidence of prior bad acts for any of the authorized purposes, the trial
court must (1) find by a preponderance of the evidence that misconduct
occurred, (2) determine that the prior conviction is relevant to a material issue,
(3) state on the record the purpose for which the evidence is admitted, and (4)
determine that the danger of undue prejudice is outweighed by the probative
value of the evidence.27
24 Halstien,122 Wn. 2d at 126.
25 Halstien, 122 Wn.2d at 126.
26 State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001).
27State v. Trickler, 106 Wn. App. 727, 732, 25 P.3d 445 (2001) (citing
State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997)).
NO. 62673-6-I / 12
Vars's three prior convictions satisfy these four factors. At trial, Vars
stipulated to the facts of each of his eight prior offenses. The trial court
determined that the prosecution had proved each prior conviction by a
preponderance of the evidence and that evidence of these convictions would be
admitted to show common scheme or plan, knowledge, to rebut an assertion of
mistake or accident, and to establish sexual motivation. The court stated on the
record that the probative value of this evidence was high.
The defendant's prior exposure behaviors assist in viewing his
behaviors surrounding the exposure incidents with context and
establish that the defendant had a particular pattern he used when
he exposed himself. . . . The defendant's prior exposures also
provide the motivation for his conduct when considering it has
gone on for more than two decades.
But, recognizing their potential prejudicial impact, the court compromised by
admitting evidence of only three of the eight prior convictions. Accordingly, we
cannot say that the trial court abused its discretion in admitting these
In the context of the facts of this case, these prior convictions
demonstrate common elements in Vars's offending behavior. He exposes
himself in urban settings and is often apprehended at some distance from his
parked car. When he is observed by civilians, he attempts to hide while
continuing to watch his victim. But when police arrive, he attempts to flee the
scene. And, when apprehended, he claims to be looking for a place to defecate
even if suitable restroom facilities are nearby.
NO. 62673-6-I / 13
These common elements permit the reasonable inference that the same
motivation underlies his offending behavior in each instance.28 As mentioned, a
sufficiency of the evidence challenge admits the truth of the State's evidence
while allowing all reasonable inferences to be drawn in the State's favor. The
facts of Vars's three prior convictions demonstrate sexual motivation. We
therefore conclude that an objective trier of fact could logically infer from this
record that Vars's indecent exposure on this occasion was sexually motivated as
Vars cites State v. Halstien29 and State v. Halgren30 for his argument that
prior convictions alone cannot support a finding of sexual motivation. These
cases do not support his claim.
In Halstien, the defendant was convicted of committing burglary with
sexual motivation. On appeal, he challenged on vagueness grounds the
constitutionality of the juvenile sexual motivation statute, which is nearly identical
to the adult statute. Our Supreme Court disagreed,
"Inherent in this subsection [RCW 13.40.135 (2)] is the requirement
that the finding of sexual motivation be based on some conduct
forming part of the body of the underlying felony. The statute does
not criminalize sexual motivation. Rather, the statute makes sexual
motivation manifested by the defendant's conduct in the course of
28 See, e.g., State v. Burkins, 94 Wn. App. 677, 688, 973 P.2d 15 (1999)
(holding that in first degree murder trial, it was not error to admit evidence of
defendant's sexual demands upon another woman under circumstances similar
to those leading up to the murder to show that defendant's motive was the
victim's refusal to consent to his sexual demands).
29 122 Wn.2d 109, 857 P.2d 270 (1993).
30 137 Wn.2d 340, 971 P.2d 512 (1999).
NO. 62673-6-I / 14
committing a felony an aggravating factor in sentencing."
Notably, nothing in Halstien prohibits a consideration of prior acts to show that a
desire for sexual gratification motivated the current crime. In fact, the court
expressly stated that evidence of prior contacts between the defendant and the
victim was relevant and admissible under ER 404(b) to prove motive.32 Our
holding here is consistent with Halstien as Vars's prior convictions were admitted
to prove that his recent exposure fit within a sexually motivated pattern of
Vars also cites to a statement in Halgren that the "sexual nature of the
current offense is the relevant inquiry" for determining sexual motivation, not
prior similar history and lack of amenability to treatment.33 But Halgren does not
prohibit a consideration of previous convictions to prove an allegation of sexual
motivation for two reasons.
First, Halgren addressed a very different question than that presented
here -- whether a trial court may apply the nonstatutory aggravating factor of
future dangerousness to support an exceptional sentence when the defendant is
charged with a nonsex offense crime and the State fails to allege sexual
motivation.34 The court analyzed this question in the context of the legislative
intent of the SRA. Thus, the cited dicta in Halgren provide no support for Vars's
31 Halstien, 122 Wn.2d at 120 (quoting State v. Halstien, 65 Wn. App.
845, 853, 829 P.2d 1145 (1992)).
32 Halstien, 122 Wn.2d at 126.
33 Halgren, 137 Wn.2d at 351.
34 Halgren, 137 Wn.2d at 346.
NO. 62673-6-I / 15
Additionally, in this dicta the Halgren court addressed the mistaken
assumption that a finding of sexual motivation, like a finding of future
dangerousness, required evidence of similar criminal history and lack of
amenability to treatment.35 The court explained that neither is generally relevant
to a sexual motivation determination,36 which looks to the underlying conduct of
the current crime. But the court did not hold that criminal history is never
relevant to this determination.
Prior misconduct, both criminal and noncriminal, may be admissible to
prove motive under ER 404(b).37 Accordingly, our analysis does not focus on
Vars's criminal history per se. It focuses on the common elements of Vars's
misconduct, which may or may not be evidenced by criminal history, and
whether that evidence is relevant to prove motive under the facts of this case.
We reject Vars's claim and conclude that evidence of his prior misconduct is
admissible to prove sexual motivation where, as here, his current actions
conform to a persistent pattern of prior behavior. From the admitted facts for
these prior convictions, a trier of fact could reasonably infer sexual motivation for
the conduct in each instance.
Lastly, Vars claims that his convictions for two counts of indecent
exposure violate double jeopardy because his conduct constituted one
35 See State v. Strauss, 119 Wn.2d 401, 414, 832 P.2d 78 (1992).
36 Halgren, 137 Wn.2d at 351.
37 See Halstien, 122 Wn.2d at 126.
NO. 62673-6-I / 16
continuing offense. The State concedes that the appropriate unit of prosecution
is the exposure, not the number of witnesses to it, but argues that under these
facts, separate exposures occurred.
The federal and state constitutional prohibitions against double jeopardy
are coextensive and protect an individual from being punished twice for the
same offense.38 When a defendant is convicted for violating one statute multiple
times, each conviction must be for a separate "unit of prosecution."39 The unit of
prosecution may be a single act or a continuing course of conduct.40
We must decide what act or course of conduct the legislature defined as
the punishable act for indecent exposure. To do so, we first analyze the
applicable statute using traditional tools of statutory construction,41 including an
analysis of the statute's plain language and legislative history.42 Unless the
legislature has clearly and unambiguously defined the unit of prosecution, we
apply the rule of lenity to avoid "'turn[ing] a single transaction into multiple
offenses.'"43 Next, we conduct a factual analysis to determine whether multiple
violations occurred.44 This step is necessary "because even where the
38 U.S. Const. amend. V; Wash. Const. art. I, § 9; State v. Sutherby, 165
Wn.2d 870, 878, 204 P.3d 916 (2009).
39 State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998).
40 Adel, 136 Wn.2d at 634; see also State v. Tvedt, 153 Wn.2d 705, 710,
107 P.3d 728 (2005) ("The unit of prosecution for a crime may be an act or a
course of conduct.").
41 Adel, 136 Wn.2d at 635; Sutherby, 165 Wn.2d at 878.
42 State v. Hall, 168 Wn.2d 726, 730, 230 P.3d 1048 (2010).
43 Hall, 168 Wn.2d at 736 (quoting State v. Jensen, 164 Wn.2d 943, 949,
195 P.3d 512 (2008)).
44 State v. Varnell, 162 Wn.2d 165, 168, 170 P.3d 24 (2007).
NO. 62673-6-I / 17
legislature had expressed its view on the unit of prosecution, the facts in a
particular case may reveal more than one 'unit of prosecution' is present."45
The State contends that a defendant commits two units of prosecution for
indecent exposure if he removes his clothes once but is observed twice in
separate locations at significantly separate times. Washington courts have
addressed the circumstance of multiple witnesses to a single exposure,46 but we
have found no Washington case that has addressed the circumstance of
consecutive victims of a continuing exposure.
RCW 9A.88.010(1) criminalizes "any open and obscene exposure of his
or her person . . . [with the] know[ledge] that such conduct is likely to cause
reasonable affront or alarm." As Eisenshank observed, this statute contains no
indication that an individual may be punished more than once depending on the
number of observers.47 Though Eisenshank addressed multiple witnesses to
one exposure, its logic applies to this case. Eisenshank characterized the
essence of this crime as an offensive exhibition in the presence of another, with
one crime being committed regardless of the number of persons present,
because "the crime [of indecent exposure] is completed when the inappropriate
exhibition takes place in the presence of another."48 Under this logic, we discern
no clear and unambiguous distinction between one exposure in the presence of
45 Varnell, 162 Wn.2d at 168.
46 See Eisenshank, 10 Wn. App. at 922, 924.
47 Eisenshank, 10 Wn. App. at 923-24.
48 Eisenshank, 10 Wn. App. at 924.
NO. 62673-6-I / 18
multiple persons simultaneously and multiple persons sequentially.
Recent Supreme Court case law supports our conclusion. In State v.
Hall49 a defendant making 1,200 phone calls from jail to induce a witness to
testify falsely committed only a single crime under RCW 9A.72.120, the witness
tampering statute.50 That statute provides that a person is guilty of witness
tampering "if he or she attempts to induce a witness . . . to . . . [t]estify falsely or,
without right or privilege to do so, to withhold any testimony."51 The court stated
that the statute turns on the defendant's attempt to interfere with "'a witness' in
'any official proceeding.'"52 Thus, the crime of witness tampering is completed
as soon as the defendant attempts to induce that witness not to testify or to
testify falsely, "whether it takes 30 seconds, 30 minutes, or days."53
Using this analytic framework, the indecent exposure statute focuses on
the defendant's improper exhibition of his or her genitalia. This crime is
complete when an inappropriate exhibition takes place in the presence of others,
whether the exposure lasts for mere moments or hours and without regard to the
number of simultaneous or consecutive observers.
Next, we must determine whether, under the facts of this case, multiple
units of prosecution occurred, as the State contends, or whether a single crime
was committed, as Vars alleges. Again, Hall is instructive. There, the court
49 168 Wn.2d 726, 230 P.3d 1048 (2010).
50 Hall, 168 Wn.2d at 729, 731.
51 RCW 9A.72.120(1)(a).
52 Hall, 168 Wn.2d at 731.
53 Hall, 168 Wn.2d at 731.
NO. 62673-6-I / 19
looked to the statutory elements of witness tampering and characterized the
defendant's behavior as "continuous and ongoing, aimed at the same person, in
an attempt to tamper with her testimony at a single proceeding."54 At the same
time, the court was careful to indicate that under different facts, for example, "if
he had been stopped by the State briefly and found a way to resume his witness
tampering campaign" or his "attempts to induce [were] interrupted by a
substantial period of time, employ[ed] new and different methods of
communications, [or] involve[d] intermediaries,"55 multiple units of prosecution
Here, the evidence shows that Vars undressed once and in the presence
of others walked naked through a Kirkland neighborhood for hours. The record
contains no evidence that Vars employed a new or different method of exposure,
temporarily stopped exposing himself, or dressed and disrobed again between
the witness observations. And since the number of witnesses is immaterial
where, as here, an ongoing exposure occurs, Vars committed a single
punishable act under RCW 9A.88.010(1).
Sufficient evidence in the record supports a conviction for a single
continuing act of indecent exposure with sexual motivation. Accordingly, Vars's
conviction for two counts of indecent exposure violated double jeopardy. One
54 Hall, 168 Wn.2d at 736.
55 Hall, 168 Wn.2d at 737-38.
NO. 62673-6-I / 20
count of indecent exposure is reversed and the case is remanded for
resentencing on the remaining count.