The attorney for former Town Administrator John Anderson has asked the 10th Circuit Court to drop two charges of indecent exposure and lewdness against his client.
Anderson’s attorney, James Rosenberg of the Shaheen and Gordon law firm, made his arguments in a hearing Friday with Judge Lucinda Sadler. Prosecutor Kirsten Wilson represented the alleged victim.
In a phone interview Monday, Rosenberg said the hearing lasted one hour and Sadler took the matter under advisement. “She will consider whether she will grant the motion to dismiss,” Rosenberg said.
Anderson, 50, was arrested July 11, 2013, after police were called to his home on Lane Road. A door-to-door salesman for DirecTV services alleged that Anderson, who was nude at the time, exposed himself to the salesman and also masturbated. The allegation resulted in the two charges of indecent exposure and lewdness. Anderson was placed on administrative leave July 12 and formally severed his relationship with the town at the end of October.
“We used two basic arguments,” Rosenberg said.
The first, he said, was that the statute used to charge Anderson was unconstitutionally vague. The “indecent exposure” statute is used when the alleged exposure causes “affront’ or “alarm,” Rosenberg explained.
“Suppose a bunch of old guys go to the YMCA to work out,” Rosenberg said. “They’re talking in the locker room and they’re nude. If someone was offended, that would make it a crime.”
Rosenberg contends that while one of the charges was that Anderson was nude in front of the salesman, the salesman did not have an appointment. “Applied to the context, no one could be nude in their own home,” he said. “The Constitution ought to protect the privacy issues of people in their homes.”
The other main point, Rosenberg said, concerns the New Hampshire Penal Code. It was taken from the Model Penal Code, a codification of “a lot of different crimes” that were being prosecuted in different ways around the country. “They looked at all the common-law crimes and put them in categories,” Rosenberg said.
In the Penal Code, Anderson’s alleged offense is classified as criminalizing a public offense, Rosenberg said. A person could be considered to commit a public offense if he were exposing himself from a well-lit bay window on a busy street. But Anderson was home alone on a Thursday night, Rosenberg said, and in his opinion that is not public indecent exposure.
“The statute refers to a public decency offense,” he said. “They are putting this in a category you wouldn’t expect it to be in.”
While the fact remains that the salesman gave his pitch and a brochure with his telephone number, Rosenberg said that was not a focus in this hearing. It came up in a previous hearing as a motion for discovery, he said. “Is it ‘affront’ or ‘alarm’ if the person chooses to remain?” he asked. “But that’s a question for another day.
Anderson also maintains that he did not masturbate in front of the salesman, one of the salesman’s allegations.
Rosenberg said the outcome rests on Judge Sadler’s ruling. “If she dismisses one of the charges, we’ll still have to go to court on the other,” he said. “If she dismisses both, we won’t have to go to court.”
Rosenberg said no date has been set for Sadler’s decision.
