Published DateBELMONT — The local man who was found guilty of indecent exposure and lewdness last year in district court for masturbating while sitting naked in his car at Leslie Robert Beach has appealed the verdict to Belknap County Supreme Court.
Merrill Fitts, 64, of 28 Lakewood Drive is appealing the finding because he said the state cannot prove that he knowingly exposed himself, knowing other people were present. He said the only person who saw him was a N.H. Fish and Game Officer Mike Eastman whose report said he sneaked up on Fitts's car and observed him.
Eastman responded to assist police on March 23, 2012 at 2:38 p.m. after hearing the call from the Belmont Police dispatcher. After observing Fitts, Eastman waited until a Belmont Police Officer arrived and the two confronted him. Belmont Police had been notified by a female caller who reported a male had exposed himself at the beach.
Police reports said the Belmont officer made his presence known and Fitts covered himself. Fitt's lawyer, David Bownes said one element of the crime is that he had to know he would likely cause affront or alarm. He said Fitts was alone in his car at the end of the road with nobody around.
He cited case law whereby a similar conviction was overturned because the person accused of the crime thought no one was around and he was seen only on a security camera.
Police also said that during a conversation they had with him after he put on his clothes and got out of his car, Eastman explained to him that while it was okay for him to go to the beach it was not right for him to sit in his car and masturbate.
Eastman said Fitts replied, "Yeah, you're probably right."
The Belknap County Attorney's Office responded with a different case where a man was convicted when a store clerk looked out a window and saw a man masturbating in his truck. The County Attorney said there was no evidence in that case that the man knew he was being observed but his conviction was upheld.
"Similarly," wrote Atty Roni Karnis, "Fitts was sitting in a vehicle in a public place and, unbeknownst to him, a person (Officer Eastman) did observe his exposed penis."
After his conviction on August 11, 2012 in the 4th Circuit Court, Laconia Division, Fitts was sentenced to 12 months in the Belknap County House of Corrections with all but seven days suspended. A fine of $1,500 was also suspended.