DA 07-0446

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 340

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

DAVID RAY OMMUNDSON,

 Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DC 06-536

Honorable Susan P. Watters, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender; Roberta R. Zenker, 

Assistant Appellate Defender, Helena, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General; Sheri K. Sprigg,

Assistant Attorney General, Helena, Montana

Submitted on Briefs: August 27, 2008

 Decided: October 9, 2008

Filed:

__________________________________________

Clerk

October 9 2008
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Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 David Ray Ommundson (“Ommundson”) was convicted of felony indecent 

exposure following a jury trial held in the Thirteenth Judicial District, Yellowstone

County. At trial, Ommundson moved for a directed verdict, appropriately referred to as a 

motion to dismiss for insufficient evidence, claiming the State failed to establish the 

elements of indecent exposure under § 45-5-504, MCA (2005). Ommundson appeals the 

District Court’s denial of his motion to dismiss for insufficient evidence. We affirm. 

¶2 The restated issue on appeal is:

¶3 Did the District Court err by denying Ommundson’s motion to dismiss for 

insufficient evidence on the charge of felony indecent exposure? 

BACKGROUND

¶4 At approximately 10:00 a.m. on Saturday, April 22, 2006, two women hiking 

along a trail on top of the “Rimrocks” in an area known as Airport Overlook Park in 

Billings, Montana, came across a totally nude male. The public trail, which is loosely 

maintained by the City of Billings, runs adjacent to Highway 3 and receives fairly heavy 

use from hikers, walkers, joggers, bicyclists, and view seekers. 

¶5 The naked man, later identified as Ommundson, was lying next to a fully clothed 

woman about eight to ten feet from the trail. In phone statements following the incident, 

one of the women stated that she “came across a man who was totally nude” and that she 

was “disgusted and offended that he [Ommundson] would be nude in a public place.” 

When asked whether she had any conversations with the man, the woman stated, “[n]o, 

because I wanted to get by him as quickly as possible. I was very uncomfortable.” The 
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woman also stated that the man made eye contact with her. Finally, she stated that while 

she did not see the man’s genitals, she would have if the woman on the blanket had not 

been sitting there. Similarly, the second woman stated that they “came across a very 

naked man” and that when both of them went back to the area after calling police, the 

man was in the same place, lying “completely nude.” Finally, the woman stated that 

Ommundson did not appear to care that he was lying nude in a public place. 

¶6 Approximately ten to fifteen minutes later, a Billings police officer responded to 

the area and found Ommundson lying on his back with his eyes closed, genitals fully 

exposed, in the same place described by the women. The officer told Ommundson to get 

dressed, which prompted Ommundson to grab a pair of nylon shorts that were within his 

reach. 

¶7 Ommundson was charged with two counts of felony indecent exposure, a charge 

later amended to a single count of the same. A two-day jury trial was held during which 

the State called the women as well as the officer to testify about the incident. The first 

woman testified that she saw a “nude” man sitting on a blanket. When asked how she 

knew whether he was totally naked, she said, “what I saw was open, nothing was 

covered, you know, and as far as I could see, nothing was covered.” The other woman 

testified that they “came across someone who was nude” and that she “was double 

shocked to see this nude person right on the trail.” Finally, the officer testified that when 

he got out of his patrol car upon responding to the area, that he “looked over to the side, 

and sure enough they [the women] were right, here’s some guy laying out there naked.” 

Ommundson did not testify in his defense. 
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¶8 At the close of the State’s case-in-chief, Ommundson moved for a directed verdict 

(motion to dismiss for insufficient evidence). Ommundson argued that the witnesses 

failed to positively identify Ommundson and that the State failed to establish the 

elements of indecent exposure since neither of the women testified that she actually saw 

Ommundson’s genitals. Specifically, Ommundson’s counsel stated, “[t]here’s been no 

testimony that either [woman was] exposed or viewed his genitalia.” When asked by the 

District Court whether Montana’s indecent exposure statute required the women to 

actually see Ommundson’s genitals, the State responded by stating that it did not, because 

the statute focuses on the defendant’s intent. Further, the State argued that, at minimum, 

there was “circumstantial evidence that he was exposed to those women on the rims that 

day.” 

¶9 The District Court denied Ommundson’s motion to dismiss for insufficient 

evidence, stating, “I don’t think [the] legislature would require these women to actually 

say that they then looked at his genitalia if they believed his genitalia was exposed, and 

from that, they were offended.” The jury subsequently found Ommundson guilty of the 

charge of felony indecent exposure, and the District Court entered its judgment and 

sentence. 

STANDARD OF REVIEW

¶10 We review de novo a district court’s denial of a motion to dismiss for insufficient 

evidence. State v. Rosling, 2008 MT 62, ¶ 33, 342 Mont. 1, ¶ 33, 180 P.3d 1102, ¶ 33.
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DISCUSSION

¶11 I. Did the District Court err when it denied Ommundson’s motion to dismiss 

for insufficient evidence on the charge of felony indecent exposure? 

¶12 Under § 46-16-403, MCA, the District Court may dismiss a criminal action and 

discharge the defendant if the evidence is insufficient to support a guilty verdict. Further, 

“[a] motion to dismiss for insufficient evidence is appropriate only if, viewing the 

evidence in the light most favorable to the prosecution, there is not sufficient evidence 

upon which a rational trier of fact could find the essential elements of the crime beyond a 

reasonable doubt.” Rosling, ¶ 35. At the District Court, and here, Ommundson contends 

the evidence is insufficient for a rational trier of fact to find the essential elements of 

indecent exposure under § 45-5-504, MCA, which required the State to establish: (1) that 

Ommundson knowingly or purposely exposed his genitals; (2) that he did so under 

circumstances that he knew were likely to cause affront or alarm; and (3) that he did so 

“in order to abuse, humiliate, harass, or degrade another” or to “arouse or gratify [his] 

own sexual response or desire . . . .” We address each element separately in the 

following discussion. 

¶13 A. Did Ommundson knowingly or purposely expose his genitals?

¶14 Ommundson claims the evidence is insufficient to find that he knowingly or 

purposely exposed his genitals. Specifically, Ommundson claims that exposure cannot be 

established in this case since the two female hikers did not directly observe 

Ommundson’s genitals, even though Ommundson admits in his brief to this Court that he 

was nude in Airport Overlook Park on April 22, 2006. Ommundson argues that a person 
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is not “exposed” for purposes of Montana’s indecent exposure statute unless a 

complaining witness directly observes the defendant’s genitals. Further, Ommundson 

appears to argue that circumstantial evidence is not sufficient to prove exposure. In 

response, the State contends that nothing in § 45-5-504, MCA, requires direct evidence of 

genital exposure, and further, that “direct observation of a person’s genitals is not 

necessary to support a finding that a person has exposed his genitals.” Rather, the State 

claims that “testimony that a person is ‘nude’ or ‘naked’ is sufficient to support a finding 

that the person’s genitals are exposed.” 

¶15 In this case, there is direct evidence from the investigating officer that 

Ommundson’s genitals were exposed. Upon arriving at the scene described by the 

women, the officer stated that he saw Ommundson, “laying on his back,” that “he didn’t 

have a stitch of clothing on,” and that he “was naked.” When asked whether

Ommundson’s genitals were exposed, the officer stated, “Yeah.” Indeed, Ommundson 

admits to being naked that morning, arguing only that the women did not directly observe 

his genitals. Given the officer’s testimony and Ommundson’s own admission, there was 

sufficient evidence for a jury to find that Ommundson was exposed for purposes of § 45-

5-504, MCA. 

¶16 The jury in this case could have reached the same conclusion from the women’s 

testimony. In Montana, “circumstantial evidence alone may be sufficient to obtain a 

conviction in a criminal case.” State v. Southern, 1999 MT 94, ¶ 92, 294 Mont. 225, 

¶ 92, 980 P.2d 3, ¶ 92. Circumstantial evidence is evidence that “tends to establish a fact 
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by proving another and which, though true, does not itself conclusively establish that fact 

but affords an inference or presumption of its existence.” Section 26-1-102(1), MCA. 

¶17 At trial, one of the women testified that she saw a “naked man” and that she did

not see any clothing on him. When pressed about how she knew the man was naked, she 

stated that, “when I looked at him, all I could think is that man is totally nude . . . .” 

Further, she testified that the only reason she did not see Ommundson’s genitals was 

because she chose not to. The other woman testified, “I didn’t see his genitals because he 

was faced the other way, but I know he was nude because you could just see his buttocks 

and, you know, just kind of straight on down, so I say that I did see a naked man.” From 

this testimony alone, a rational trier of fact could find that Ommundson’s genitals were 

exposed for purposes of § 45-5-504, MCA. 

¶18 B. Did the exposure of Ommundson’s genitals occur under circumstances in 

which Ommundson knew the conduct was likely to cause affront or alarm? 

¶19 Ommundson claims the evidence is insufficient to establish the second element of 

§ 45-5-504, MCA, which requires the exposure to occur under circumstances in which 

the defendant knew the conduct was likely to cause affront or alarm. In support of his 

argument, Ommundson appears to claim that this element can only be satisfied if a 

person intends to elicit “affront or alarm.” This is not true. Section 45-5-504, MCA,

requires only that the exposure take place “under circumstances in which the person 

knows the conduct is likely to cause affront or alarm.” (Emphasis added.) In Montana, 

“[w]hen knowledge of the existence of a particular fact is an element of an offense, 

knowledge is established if a person is aware of a high probability of its existence.” 
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Section 45-2-101(35), MCA. Given that a person’s mental state can rarely be established 

with direct evidence, “[a] mental state may be inferred from the acts of the accused and 

the facts and circumstances connected with the offense.” State v. Krum, 238 Mont. 359, 

361, 777 P.2d 889, 890 (1989); see also § 45-2-103(3), MCA. 

¶20 In this case, we agree with the State that the evidence presented during the course 

of the trial, when viewed in the light most favorable to the prosecution, was sufficient for 

the jury to find that Ommundson knew his conduct occurred under circumstances likely 

to cause affront or alarm. Both women testified that Ommundson was lying naked not 

more than eight to ten feet from a trail on a Saturday morning in a public park that is 

frequently used by hikers, bikers, and joggers and that he was clearly visible from both 

the trail and a nearby parking lot. The second woman testified that she “came across 

someone who was nude” and that she “was double shocked to see this nude person right 

on the trail.” Because the exposure occurred in such a place and time that was sure to be 

viewed by a member of the public, we conclude there was sufficient evidence for a 

rational trier of fact to find that Ommundson knew the exposure occurred under 

circumstances that were likely to cause affront or alarm. 

¶21 We also note that Ommundson conceded “knowledge” during pretrial discussions 

with the District Court about whether to allow evidence of Ommundson’s arrest in 2002 

for indecent exposure. In objecting to the evidence, Ommundson’s counsel stated the 

following: “Our client is not saying in any way, shape or form that he did not know that 

this conduct was not against the law.” Further, counsel conceded “that our client has 

knowledge that if his genitalia were exposed, that that would be against the law, and he 
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would also concede that if his genitalia were exposed, that that could reasonably cause 

the remaining portion and remaining elements in the statute.” Finally, counsel stated, 

“[s]o basically what we would like, Your Honor, is we would object to any testimony 

given by the officer, being that we would concede knowledge.” Although the District 

Court overruled Ommundson’s objection, the State ultimately did not introduce evidence 

of the 2002 incident, relying instead on the concession and posture of the trial at that 

point. Ommundson’s attempt to argue this element later at the District Court and on 

appeal to this Court is especially unpersuasive in light of his concession that he had the 

requisite knowledge required by the statute. 

¶22 C. Did Ommundson expose himself in order to “abuse, humiliate, harass, or 

degrade another” or to “arouse or gratify” his own sexual desire?

¶23 Ommundson argues the evidence is insufficient for a rational trier of fact to find 

that he exposed himself in order to “abuse, humiliate, harass, or degrade another” because 

his actions amounted to nothing more than nude sunbathing. We disagree. As previously 

stated, “[a] mental state may be inferred from the acts of the accused and the facts and 

circumstances connected with the offense.” Krum, 238 Mont. at 361, 777 P.2d at 890; 

see also § 45-2-103(3), MCA. We also note that determinations of witness credibility 

and the weight of evidence presented at trial is within the province of the jury. See State 

v. Kuipers, 2005 MT 156, ¶ 11, 327 Mont. 431, ¶ 11, 114 P.3d 1033, ¶ 11. 

¶24 A jury could have reasonably inferred from Ommundson’s actions and from the 

facts and circumstances presented at trial that he exposed himself in order to “abuse, 

humiliate, harass, or degrade another.” First, the jury heard testimony from three 
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different witnesses, including an investigating officer, that the exposure occurred in a 

very public setting near a frequently used trail on a warm Saturday morning. From this 

conduct, a jury could reasonably conclude that Ommundson knew he would be seen 

naked that morning. Second, the jury heard testimony that he was not merely sunbathing, 

but that he maintained prolonged eye contact with one of the women. In response, the 

woman stated that she stared back to “let him know that [she] was disgusted and that he 

[Ommundson] wasn’t intimidating [her] sitting there in the nude.” The jury could 

reasonably infer from this interaction that Ommundson’s conduct toward the women was 

deliberate and that he engaged in that manner of behavior in order to humiliate, harass, or 

degrade another. 

¶25 Finally, on a related matter, Ommundson argues on appeal that “the investigating 

officer’s testimony [was] not sufficient to establish the elements of the offense.” 

Therefore, according to Ommundson, the jury should not have considered the 

investigating officer’s testimony. However, we agree with the State that Ommundson 

provides no authority for this proposition. Accordingly, we do not address this issue 

further on appeal. 

¶26 Based on Ommundson’s actions and in consideration of all the facts and 

circumstances presented, we conclude that there was sufficient evidence for a rational 

trier of fact to find the essential elements of the charge of indecent exposure beyond a 

reasonable doubt. Therefore, we hold that the District Court did not err in denying 

Ommundson’s motion to dismiss for insufficient evidence. 

¶27 Affirmed.
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/S/ W. WILLIAM LEAPHART

We concur: 

/S/ KARLA M. GRAY

/S/ JIM RICE

/S/ PATRICIA COTTER

/S/ BRIAN MORRIS