Sixty-nine misdemeanor indecent exposure charges and one felony count of furnishing harmful items to a minor have been filed against a 19-year-old Arizona boy who exposed his penis in a yearbook photo prank. I call him a “boy” despite what the AP style manual says, because anyone who does this lacks the maturity to be considered an adult man. As the Red Mountain High School football team posed for its team picture last year, two players in the front row created a small gap for Hunter Osborn, standing in the second row, to expose his penis in the picture. Since the penile prank has come to light, Osborn has been very apologetic, indicating that he succumbed to peer pressure when his friends dared him to do it. Osborn was 18 when the photo was taken, so he has been charged as an adult.
The photo was included in the school yearbook and in the program sold at home games, but apparently, no one in a position of authority noticed the exposed penis for a year. Naturally, most people are not going to closely examine a high school football team picture, and they certainly are not going to expect to see an exposed penis on display. Thus, I can see how most people would assume they are seeing something more plausible, like a finger or thumb.
It appears that someone in the Mesa Police Department had a sense of humor by charging the Bevis and Butthead style giggle-inducing 69 counts, but Detective Steve Berry explained that he chose that number because there were 69 students and 10 faculty members present when the photo was taken. He further explained that he would drop a count for each “victim” over 18 who requests that the charge be dropped.
There is a common misconception that one cannot be charged with a crime if it was “just a prank.” As a criminal defense lawyer in a college town, I hear from parents and students alike who are absolutely shocked that criminal charges can arise from a “mere prank”. I am not sure where this misconception comes from, but you will never hear a judge give a jury instruction like this: >>Ladies and gentleman of the jury, the defendant has asserted the affirmative defense of “it was just a prank.” If you find by a preponderance of the evidence that it was “just a prank,” then you must find him not guilty.<<
Although I am aware of no jurisdiction, which recognizes a “but it was just a prank” defense, Mr. Osborn’s state of mind should be a mitigating factor when it comes to plea negotiations or sentencing. His actions were clearly the result of an immature mindset resulting in an inability to fully appreciate the consequences. This boy is not in the same category as a real criminal, let alone a sex offender. The embarrassing publicity itself has been its own form of punishment. The appropriate result would be a pretrial adjudication program where the charges are dropped after Mr. Osborn does some community service and pay court costs. Hopefully, the Arizona criminal justice has such an option for this case.
Matt McClenahen is a criminal defense lawyer is State College, Pennsylvania, home of Penn State University. He has represented so many students who have engaged in pranks, that he lost count years ago. http://www.mattmlaw.com/Criminal-Defense-Overview/Summary-Offenses.shtml