¶1SUPPLEMENTAL OPINION
¶2The appellant was convicted of a violation of A.R.S. § 13-981 (wearing a mask in the commission - of a public offense, namely, indecent exposure, as prohibited by A.R.S. § 13-531). On appeal to this court, the judgment and conviction of appellant were affirmed. See State v. Gates, 25 Ariz.App. 241, 542 P.2d 822 (1975). As appears from the addendum to our opinion, a three-judge panel of the United States District Court for Arizona found the Arizona indecent exposure statute, A.R.S. § 13-531, unconstitutional on the ground that it is vague and overbroad. See Attwood v. Purcell, 402 F.Supp. 231 (CIV 75-17 PHX 1975). Since the decision of the District Court was not filed until after the present case was submitted for decision in this court, it had no part in our consideration. In fact, the unconstitutionality of A.R.S. § 13-531 was not an issue before us.
¶3On a timely motion for rehearing, appellant now urges us to vacate his conviction and sentence by reason of the Attwoodcase. The State opposes the rehearing on several grounds.
¶4The first is that, wholly apart 'from the merits of the Attwoodcase, it should be treated as prospective only in operation, relying upon Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973). It is to be noted that Attwoodwas an action for declaratory judgment and injunction brought against authorities charged with the enforcement of the indecent exposure statute. We agree with the State on the issue of prospective application and interpret Attwoodas applying only to conduct occurring after *76September 8, 1975. We find the language of the Supreme Court in Wainwrighthelpful, although the court in that case referred to the power of a state court in giving either prospective or retroactive effect to its own decisions:
A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Great Northern R. Co. v. Sunburst Oil and Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932). Contrary to the judgment of the Court of Appeals, § 800.01 was not void at the time appellees performed the acts for which they were convicted. [414 U. S. 21, 24, 94 S.Ct. 193]
¶5In reaching the conclusion that Attwoodis only prospective in its application, we are impressed by the fact that the Arizona Supreme Court has previously made it clear that exhibitionism is proscribed by the indecent exposure statute, A.R.S. § 13 — 531. See State v. Wayman, 104 Ariz. 125, 449 P.2d 296 (1969). We are thus not dealing here with the possibility that a person might be held “criminally responsible for conduct which he could not reasonably understand to be proscribed.” U. S. v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954).
¶6While our determination of the question of retroactivity requires that we deny the motion for rehearing, there are also further grounds which deserve mention.
¶7The Attwoodcase considered A.R. S. § 13-531 as applied to “topless dancing” and held that this was a form of expression protected by the First Amendment. Here it is not contended that the right of free expression is involved. We are therefore inclined to interpret Attwoodas holding A.R.S. § 13-531 unconstitutional only insofar as it may be applied to conduct reasonably protected by the First Amendment. See, for a related issue, Yauch v. State, 109 Ariz. 576, 514 P.2d 709 (1973).
¶8For these reasons, we do not believe that Attwoodrequires that we rehear this case on constitutional issues not previously raised in the record before this court. Beyond this, we decline further to consider the constitutionality of the Arizona indecent exposure statute.
¶9The motion for rehearing is denied.