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	Jury Finds Frederick Priest Guilty of Indecent Exposure By Allen Messick Brighton Standard-Blade June 19, 2008 http://www.metrowestfyi.com/story_display.php?sid=9759 GREELEY – If a tree falls in the forest and nobody is there to witness it, does it make a noise? That was the defense Father Robert Whipkey, 54, of Frederick, used last week as he stood trial on charges of indecent exposure stemming from a June 22, 2007, incident when he was seen by Frederick off-duty police officer Zach Hahn. His reasoning: Walking naked in the middle of the night can't hurt anyone because no one would be out to see him. The defense wasn't convincing for the jury which, after 2 ½ hours of deliberation, found him guilty. He could now face up to 18 months in jail and could be required to register as a sex offender. Sentencing is set for Aug. 11 at 10:30 a.m. In presenting the case before Weld County District Judge Timothy Kerns Thursday, Steve Wrenn and Kent Leier of the district attorney's office said the argument against Whipkey's defense was easy. "He admitted he did this," Leier told the jury. "He said, 'I know what I did was wrong.' We all know it was wrong, because the law says it's wrong." The state argued that what happened in the early morning hours nearly a full year ago "is not up for debate. We all know what happened." After listening to Hahn and Frederick Police Officer Donald Loveless explain the events they saw, Leier summarized it up in his own words. "He decides to go for a jog, naked. He's walking around this track, naked. He decides he's done with his naked exercise … he strolls casually back home, back up Fifth Street, naked. "Past 21 houses, completely naked. Just going for a naked stroll," Leier continued, noting the proximity to two schools, a day care, the rec center, the police department and a shopping plaza as he painted a visual image. "If he didn't want to be seen, he'd have walked somewhere over here," pointing to a map drawn earlier by Hahn describing the scene. During cross examination and closing statements, Whipkey's attorney, Harvey Steinberg, said as the law is written, Whipkey must have "knowingly exposed his genitals" and done so with "practical certainty to cause result," in order to be in violation of the law. The defense did not produce any witnesses for the trial, and Whipkey did not take the stand. The defense, according to Steinberg, was the fact he believed no one would know. "Was it practically certain he was going to expose himself to another person? At 4:30 in the morning?" Steinberg asked. "Whipkey did not think it would be. "This law does not say it is illegal to walk down the street naked in Colorado," Steinberg noted. "And we may not like the fact that he walked naked. But for you to say, at 4:30 in the morning, there is not another person out, that he did this knowing he was practically certain …", Steinberg advised the jury to find Whipkey innocent as this could not be proven. It was during his casual, naked stroll back home that Hahn witnessed Whipkey and eventually confronted him, after contacting Loveless to respond. Hahn had just finished his shift with the Frederick police. He arrived home, let the dog out and was watering his lawn and garden before calling it a night. Hahn lives on Fifth Street, across from the Catholic Church and Whipkey's home. When he saw Whipkey "casually walking down the sidewalk" in front of the high school, Hahn said he was "shocked." To verify what he thought he saw, Hahn used his service flashlight and flashed a beam across the street. In order to show a pattern in Whipkey's behavior, the state's case also included testimony from Whipkey's neighbor, Robin Ciarobola, who said she and her family repeatedly witnessed Whipkey walking about in his house – curtains open – naked. "Many times. Twice a week on average. It was a common occurrence." Ciarobola said Whipkey was seen doing "ordinary things, daily activities" over the three-year period they have lived across the street. Jeanine Susan Bender also testified that Whipkey, a close personal friend of her father for 22 years, was witnessed during a family camping trip to Lake McConaughy 1988, simply walking through camp on his way to and from bathing in the lake. "Yes, I confronted him. I told him his actions were inappropriate," Bender said. After the state's case had been presented, Steinberg asked the court to move to immediate acquittal, as evidence had not been presented showing Whipkey had "knowingly" violated the indecent exposure statutes. Kerns denied the acquittal. After the verdict, Steinberg renewed his concern over the constitutionality of the sentencing portion of the statutes. Steinberg was given until July 14 to file a claim with the court that the sentencing for the lesser of two crimes holds the higher penalty A hearing to review this complaint is set for July 28 at 11:30 A.M.
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