Simon v. Commonwealth
708 S.E.2d 245
Va. Ct. App.2011Background
- Appellant was convicted by jury of indecent liberties under Code § 18.2-370(A)(1) for acts against a 10-year-old girl, K.K.
- Evidence showed appellant was seen at a CVS parking lot with a vehicle and red shorts with a hole, exposing himself to K.K. on August 26, 2009.
- A second sighting occurred August 28, 2009; on August 31, 2009 police found red shorts with a hole and pornographic material in appellant's truck.
- K.K. and her father reported the incidents; a police stop led to discovery of the shorts and pornographic items.
- Appellant sought a jury instruction on indecent exposure as a lesser included offense; the court refused.
- The trial court denied motions to strike for insufficiency of evidence on lascivious intent; appellant did not present evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| whether indecent exposure is a lesser included offense | Simon argues Ashby/Hewitt imply lesser inclusion | Commonwealth contends exposure not lesser included due to different elements/intent | Not lesser included; court did not err |
| whether evidence proves lascivious intent | Simon asserts insufficient proof of lascivious intent | Commonwealth contends totality shows intent beyond reasonable doubt | Evidence sufficient to prove lascivious intent |
Key Cases Cited
- Ashby v. Commonwealth, 208 Va. 443 (1968) (dicta on indecent exposure; not controlling for lesser-included issues)
- Hewitt v. Commonwealth, 213 Va. 605 (1973) (cited as reference for lesser-included status; dictum in this context)
- McKeon v. Commonwealth, 211 Va. 24 (1970) (reiterates lascivious intent may be proven by various factors)
- Sanchez v. Commonwealth, 32 Va.App. 238 (2000) (defines test for lesser-included offenses; elements-based analysis)
- Dalton v. Commonwealth, 259 Va. 249 (2000) (articulates elements-inclusion test for lesser offense)
- Campbell v. Commonwealth, 227 Va. 196 (1984) (discusses interpretation of 'lascivious' intent)
- Mason v. Commonwealth, 49 Va.App. 39 (2006) (recognizes multiple avenues to prove lascivious intent)
- Kauffmann v. Commonwealth, 8 Va.App. 400 (1989) (notes variety of indicators for lascivious intent)
- Seibert v. Commonwealth, 22 Va.App. 40 (1996) (discusses abstract element-based analysis)