PIERRE - South Dakota law does not require the presence of an offended victim to convict someone of indecent exposure, the state Supreme Court said Thursday in ruling upholding a Sioux Falls man's conviction.

Richard Aca Moss argued there was not enough evidence to convict him because there was no victim or witness present.

But the Supreme Court ruled 3-2 that the law does not require the presence of a victim. And even if the law did require the presence of a victim or witness, police officers could be victims in indecent exposure cases, the justices said.

"We reject Moss's suggestion that police officers cannot, as a matter of law, be offended by indecent exposure," Justice Steven Zinter wrote for the court majority.

Justices Richard Sabers and Judith Meierhenry dissented on part of the ruling because they believe the law requires the presence of victims in indecent exposure cases. But they agreed that Moss's conviction should be upheld because evidence indicated other people in the park could have been unwilling witnesses to the offensive conduct.

Moss was arrested Feb. 22, 2006, in Elmwood Park in Sioux Falls after he and another man met two undercover Sioux Falls Police Department detectives. After one of the detectives said they "were looking for a show," Moss and the other man engaged in sexual activity.

A jury later found Moss guilty of indecent exposure. He was given a suspended imposition of sentence and placed on probation for five years.

Moss argued the law requires he must have known his conduct would likely annoy, offend or alarm another person who was present.

The Supreme Court said the law requires only that someone exposed himself under circumstances he knew would likely offend, annoy or alarm another person. That does not require knowledge that the conduct will offend someone who is actually present, the justices said.

The Legislature rewrote the law in 1998 and took out language requiring the presence of a victim, the court majority said.

In any event, evidence indicated Moss's conduct occurred in a place within view of a parking lot, baseball fields, playground equipment and other areas in the park, the court majority said. That means he was aware the circumstances meant his conduct likely would annoy or offend another person, the justices said.

Moss contended his trial was unfair because the jury was not given an instruction explaining he could have been charged with public indecency, a less serious crime. The Supreme Court said he was not entitled to that instruction because it was not relevant to whether he was guilty of indecent exposure.