A Heavy Burden to Prove

Ferrel has already been in jail for 96 days for this 90 day violation.  He has never had a trial.

The only thing that can "up" the penalty  from 90 days to 12 months is the clause: and the exposure was done for the purpose of sexual gratification   

The charge is that he was defecating.  This means that he was taking a "dump."  That implies the he was actually "taking a dump." I am trying to be sensitive here!   This is why the "stool sample" is so important.  Hence, the term "sexual gratification" comes into play.  The jury will have to decide the difference between "defecating" and committing an act of "sexual gratification."  It can be argued that "actually defecating is merely a biological act of necessity not to be equated with "sexual gratification."  It also could be argued that one who is seeking sexual gratification is not likely to be doing so when one is actually defecating.   

§61-8-9. Indecent exposure.

(a) A person is guilty of indecent exposure when such person intentionally exposes his or her sex organs or anus or the sex organs or anus of another person, or intentionally causes such exposure by another or engages in any overt act of sexual gratification, and does so under circumstances in which the person knows that the conduct is likely to cause affront or alarm: Provided, That it is not considered indecent exposure for a mother to breast feed a child in any location, public or private.

(b) Except as provided in subsection (c), any person who violates the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not more than ninety days, or fined not more than $250, or both fined and confined.

(c) Any person who violates the provisions of subsection (a) of this section by intentionally exposing himself or herself to another person and the exposure was done for the purpose of sexual gratification, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500 or confined in jail not more than twelve months, or both. For a second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 and confined in jail for not less than thirty days nor more than twelve months. For a third or subsequent offense, the person is guilty of a felony and, upon conviction thereof, shall be fined not more than $3,000 and imprisoned in a state correctional facility for not less than one year nor more than five years.

Ferrel's lawyer has submitted a motion for discovery (namely a stool sample) and claims that this will exonerate him.  How?  Because it distinguishes between the criteria for the crimes.  Note the term "and" The penalty of 12 months rests solely upon the jury's interpretation of  whether the act was defecating or sexual exhibition.  The operative word is "and."

Ferrel has already served 96 days of a legal penalty of 90 days for defecating merely waiting for a jury trial.  All that remains is the charge that in addition to defecating he was doing it for the purpose of "sexual gratification."  the latter could result in a 12 month penalty.  This is why we call it a "half-crime."

A speedy trial would have rectified the situation.  He could have been tried before the question of a stool sample was raised by motion by his attorney.  A speedy trial would have made it possible for the investigation officer to have returned to the scene to obtain a stool sample.  (Why this was not done at the time of investigation is yet a mystery.)  If a person is accused of defecating it stands to reason that the product of the defecation be entered as evidence.  In the instant case, this motion has been denied.  

This increases the burden on the witnesses to testify if they actually saw Ferrel defecating or was he merely "mooning" the witnesses.  Ferrel does come from a generation that used "mooning" as a disgusting act.  

In the instant case, the investigating officer is not an actual witness to the crimes.  He is taking the word of the witnesses.  The burden of proof rests on the complaining witnesses as to whether they interpreted the act as merely defecation or an attempt to gain "sexual gratification."  Indeed the former would have been disgusting and would have deserved a 90 day stint in jail without doubt. (Fortunately Ferrel has already served 96 days just waiting for a trial.)  He could admit to the defecation and would not spend anymore time in jail than he already has.

Thus the bar of proof is elevated beyond the "fact" of defecation.  Tuesday's trial enters the nebulous arena of "intent."  Did Ferrel "intend" to stimulate the prurient thoughts and emotions of the witnesses?  (If so, he is guilty and deserves 12 months and a perpetual tag as a "sex offender.")

Did he even know that he had an audience?  How did the witnesses "know" that Ferrel "knew" that he had an audience and that he was performing for them?  Is it possible that Ferrel, a homeless man, merely had diarrhea and was trying to avoid soiling his pants?  How many times have you had a situation where you had to go or mess your pants?

Most people would agree that Ferrel doesn't have all his oars in the water at the same time.  He is a bottle short of a six-pack?  Should he have to spend 12 months in jail because of that disability?

He was denied a PR bond for a long time because he had no working address or a place to live?  Is that a requirement for bond nowadays?

Thus you can see that the trial

 in Magistrate Court Jan 14 at 9:00 A.M.

 is one you won't want to miss.