JUAN MESEN, a/k/a JUAN OSCAR MESEN v. STATE OF FLORIDA
Case No. 2D16-4971
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
May 3, 2019
Appeal from the Circuit Court for Pinellas County; Chris Helinger, Judge.
Chris Westmoreland, Clearwater; and Donald J. Kilfin of The Kilfin Law Firm, P.C., St. Petersburg, for Appellant.
Ashley Moody, Attorney General, Tallahassee, Susan D. Dunlevy, Assistant Attorney General, and Helene S. Parnes, Senior Assistant Attorney General (substituted as counsel of record), Tampa, for Appellee.
ATKINSON, Judge.
Juan Mesen appeals his conviction and sentence for lewd or lascivious exhibition in the presence of an elderly or disabled person. He argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to
On October 1, 2013, two employees were driving back to a nursing facility following their lunch break when they saw Mr. Mesen with a woman in a wheelchair on a sidewalk just past the facility‘s private driveway. This area was not visible from the facility. They circled back to get another look at the situation and ultimately parked across the street. They saw Mr. Mesen‘s pants unzipped and the victim‘s arm extending into his pants, moving back and forth, but they could not see the victim‘s hand. His pants were not pulled down; they may have been unbuttoned but were definitely unzipped. Neither witness saw his genitals.
Mr. Mesen denied any wrongdoing, claiming that he took the elderly dementia patient off-site so she could get some fresh air and sunshine. He said that he had been doing range-of-motion exercises with her, like the ones that he did with his wife, who was also a resident at the facility. He said that his fly was down because he had been experiencing urinary issues, including leakage and the frequent urge to relieve himself. Three months prior to the incident, he visited his urologist complaining of those symptoms. Although an investigating officer testified that Mr. Mesen initially said nothing happened with the victim that could have been misconstrued by the witnesses, Mr. Mesen subsequently admitted to the officer that the victim touched him on her own, reaching out and squeezing a fist over his genitals while his pants were on before he immediately stepped back.
The State charged Mr. Mesen with two crimes arising out of this incident—lewd or lascivious battery upon an elderly or disabled person, in violation of section
” ‘Lewd or lascivious exhibition in the presence of an elderly person or disabled person’ occurs when a person, in the presence of an elderly person or disabled person,” “knows or reasonably should know that the elderly person or disabled person either lacks the capacity to consent or fails to give consent to having such act committed in his or her presence” and:
- Intentionally masturbates;
- Intentionally exposes his or her genitals in a lewd or lascivious manner; or
- Intentionally commits any other lewd or lascivious act that does not involve actual physical or sexual contact with the elderly person or disabled person, including but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity[.]
Mr. Mesen stipulated that the victim was elderly or disabled and that he knew or reasonably should have known that she lacked the capacity to consent. He moved for a judgment of acquittal on both counts. The trial court granted his motion as to the lewd or lascivious battery count, finding no evidence that Mr. Mesen encouraged, forced, or enticed the victim to engage in sexual activity, which is defined as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or
A denial of a motion for judgment of acquittal is reviewed de novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). Statutory interpretation is a question of law also subject to de novo review. Acevedo v. State, 218 So. 3d 878, 879 (Fla. 2017). A claim of insufficient evidence fails as long as “there is substantial competent evidence to support the verdict and judgment.” Spinkellink v. State, 313 So. 2d 666, 671 (Fla. 1975). The State contends in its brief that the “exposes” element of lewd or lascivious exhibition can be satisfied by the inference that the defendant exhibited his genitalia to the victim “through her sense of touch” by “situating his groin area extremely close to her and well within her reach and unzipping his shorts,” allowing her to place her hand on his genitals—“whether directly or on top of his underwear.”
Courts must afford statutory language “its plain and ordinary meaning, giving due regard to the context within which it is used.” Hampton v. State, 103 So. 3d 98, 110 (Fla. 2012); see also Brittany‘s Place Condo. Ass‘n, Inc. v. U.S. Bank, N.A., 205 So. 3d 794 (Fla. 2d DCA 2016). A reasonable reader would understand “exhibition” by “exposure” to require that the defendant‘s genitals are visually observable—an ordinary meaning of those words that is all the more reasonable in light of their context in section
The State argues that the “victim was exposed to Mesen‘s genitals via her hand, which was placed in his genital area beneath his outer clothing.” The fact that the victim had her hand in the defendant‘s pants is merely incidental to what is proscribed by the statute, which criminalizes actions taken by the defendant, not the inducement of an action taken by the victim. The evidence supports only one action alleged to have been taken by the defendant: unzipping his fly within reach of a victim who is disabled or elderly, so as to place his genitals within reach of her touch without making them visible.
The State‘s contention that this conduct is within the meaning of “exposes” in section
The State‘s interpretation of section
Section
The legislature declined to include the same proscription in the elderly and disabled statute as it did in the minor statute. When the legislature has included a provision in one statute but omitted it in an analogous statute, courts should not read it into the statute from which it has been excluded. See Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 914 (Fla. 1995) (declining to “imply [a term] where it has been excluded” when the term was used in one section governing the implied warranty for developers but not another implied-warranty section governing contractors); see also Rollins v. Pizzarelli, 761 So. 2d 294, 299 (Fla. 2000) (explaining that “[j]ust as the legislative use of different terms in different portions of the same statute is evidence that different meanings were intended,” the language of statutes in different chapters can be compared for the same purpose); Ocala Jockey Club, LLC v. Rogers, 981 So. 2d 1245, 1247 (Fla. 5th DCA 2008) (finding that language in one statute “reveal[ing] that the Legislature knows how to make provision” for an award of both actual and treble damages implied that another statute lacking such language did not permit both). Rather, courts must “presume that [the] legislature says in a statute what it means and
Some might find it perplexing that the legislature did not choose to protect elderly or disabled people from being forced or enticed to touch someone‘s genitals as it did people under sixteen. Defense counsel even suggested during his judgment-of-acquittal argument that he thought that the legislature‘s omission of the reciprocal language was not intentional.2 But unless it can be said “with absolute confidence that no reasonable legislature would have intended for the statute to carry its plain meaning,” courts should “presume that [our] legislature says in a statute what it means and means in a statute what it says there.” Maddox v. State, 923 So. 2d 442, 452 (Fla. 2006) (alteration in original) (Cantero, J., dissenting) (quoting BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004)). The absurdity doctrine “exception to the plain meaning rule should not be used to avoid an unintended result, only an absurd or patently unreasonable one.” Id. at 452–53. Cf. Stelmack v. State, 58 So. 3d 874, 877 (Fla. 2d DCA 2010) (“We do not mean to suggest that the possession of composite images of real children that simulate lewd [or] lascivious exhibition of the children‘s genitals should not be criminalized.” (emphasis added)).
Other contextual indicators further undermine the State‘s interpretation
The doctrine of noscitur a sociis (a “word is known by the company it keeps“) is relied upon “to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words.” Cosio v. State, 227 So. 3d 209, 213 (Fla. 2d DCA 2017) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995)). This canon of construction is applicable here, where the State is ascribing a meaning to a term (“exposure“) that is more expansive than the term (“exhibition“) used in the name of the crime the former word is used to describe. A meaning of the word “exposes” that includes merely exposure to a grasp through or under clothing cannot be employed to describe a term—“exhibition“—that indicates the presentation of something to another‘s viewing.
In addition to the exposure of one‘s genitals, “[l]ewd or lascivious
Nothing in the context of section
Although the evidence of Mr. Mesen‘s conduct might reasonably support a theory that Mr. Mesen “force[d] or entice[d]” the victim to touch his genitals “or the clothing covering them” under section
The plain and ordinary meaning of the word “expose” in the context of section
Reversed and remanded.
SALARIO, J., Concurs specially with an opinion in which CASANUEVA, J., Concurs. CASANUEVA, J., Concurs in part with an opinion.
SALARIO, Judge, Concurring specially.
I agree with the majority on three points that dispose of this appeal. First, the undefined term “exposes” in section
The majority‘s extensive analysis of other principles of statutory construction is, to my mind, not necessary to explain our reasons for deciding the case or to address any argument the State has made. We are deciding the case on the unambiguous language of the statute, which is typically conclusive of a statutory construction question. See Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931)). And the State‘s only
CASANUEVA, J. Concurs.
CASANUEVA, Judge, Concurring.
Notes
Intentionally commits any other lewd or lascivious act that does not involve actual physical or sexual contact with the elderly person or disabled person, including but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity[.]§ 825.1025(4)(a)3. (emphasis added). The word “other” only has meaning in relation to the preceding enumerated acts, which include exposure. Use of the word “other” to indicate that the preceding enumerated acts are also “lewd or lascivious” would be gratuitous, since the crime itself only encompasses “lewd or lascivious” exhibition and the subsection enumerates all the ways in which a “[l]ewd or lascivious exhibition” can “occur[.]” § 825.1025(4)(a). A reasonable reader would assume that the word “other” is instead being used to indicate that the preceding enumerated acts, including exposure, also “do[] not involve actual physical or sexual contact,” § 825.1025(4)(a)3., since it would be needless to specify that, like the acts previously enumerated, these other acts must also be done in a lewd or lascivious manner. And it would be unreasonable to read the phrase “any other . . . act that does not involve actual physical or sexual contact” to mean that, while the previously enumerated acts (“masturbates” and “exposes“) do include those that involve physical or sexual contact, the catch-all encompassing “any other” acts does not include any that involve physical or sexual contact. Id. Thus, to give effect to the word “other,” it must be understood to indicate that, like the preceding acts, which include exposure of genitals, these other acts in the catch-all provision also do not involve actual physical or sexual contact with the victim. Cf. Potts v. Ctr. for Excellence in Higher Ed., Inc., 244 F. Supp. 3d 1138, 1142 (D. Colo. 2017) (concluding that “reading ‘employee’ to mean ‘current employee’ is especially fitting in light of § 3730(h)(1)‘s catchall residual clause, which covers ‘other’ actions that likewise ‘discriminate[ ] . . . in the terms and conditions of employment’ ” (alteration in original) (quoting