City man acquitted for alleged act in park

Posted: October 24, 2013

The Winchester Star

WINCHESTER — A city man has been acquitted on charges related to an allegation that he performed a sexual act in Jim Barnett Park in May.

Joshua Whirley, 21, of the 1000 block of Franklin Street appeared in Winchester General District Court on Wednesday for a bench trial on charges of indecent exposure and actual or simulated masturbation in public.

According to his attorney, Michael Robinson of Fairfax, they presented a two-pronged defense.

First, the defense pointed out that upon taking the alleged victim’s complaint, city police presented her with just one lineup photo — of Whirley.

“It’s very suggestive,” Robinson said of the procedure.

He added that the defense also presented five witnesses who said they were with Whirley on the date and time he was accused of the crimes.

According to a criminal complaint filed in the case, officers responded to the park walking trail at about 11 a.m. on April 7 for a report of indecent exposure.

The woman who reported the incident said she was running on the trail and saw Whirley three times.

On the third sighting, she said, she saw him expose himself and begin to masturbate, according to the complaint.

City Commonwealth’s Attorney Alexander R. Iden said Wednesday that the alleged victim testified at the trial that Whirley committed the acts.

After hearing evidence and arguments from the defense and prosecution, however, Judge David S. Whitacre found Whirley not guilty.

Robinson said Whitacre indicated that he had his suspicions, but that the evidence did not rise beyond a reasonable doubt.

Though pleased the prosecution made it past a motion to strike, Iden said that in the end the judge has to be convinced beyond a reasonable doubt, and that suspicion wasn’t enough.

— Contact Melissa Boughton at mboughton@winchesterstar.com