Lead Opinion
UPON REHEARING EN BANC
Kenneth Samuel Moses challenges his conviction on two counts of making an obscene display or exposure in violation of Code § 18.2-387. Finding no error in the trial court’s application of the statute to this case, we affirm.
I.
On appeal, we review the evidence in the “light most favorable” to the Commonwealth. Commonwealth v. Hudson,
On August 8, 2001, Moses walked up to a 10-year-old girl at a Kmart. While he masturbated in front of the child, he told her she was “very beautiful.” The child saw his hand “through his pants” exercising his penis. Pale with fright, the child later told her mother what happened.
On December 4, 2001, Moses stalked an 11-year-old girl at a Wal-Mart. He made eye-contact with the child and passed her in the aisle several times. As he did so, Moses masturbated with a hand down his pants while looking directly at her. During a brief moment while the child’s mother spoke with a friend, Moses approached the girl. He told her she was a “pretty girl” and asked her how her “butt felt.” The child ran to her mother confused and upset.
After reviewing a sex offender evaluation of Moses, the trial judge found him to be a sexual “predator” and concluded “the least I can do in this case is to try to prevent you from committing these crimes again by incarcerating you.” Convicted of two counts of obscene display or exposure under Code § 18.2-387, Moses appeals both convictions.
H.
At trial, Moses argued that his conduct did not violate Code § 18.2-387 as a matter of law.
A. The Common Law Antecedents of Code § 18.2-387
The common law recognized any “open and notorious lewdness” as an indictable offense. 4 William Blackstone, Commentaries on the Law of England *64 (1769). The offense included any “grossly scandalous and public indecency.”
At common law, nudity or near nudity was never the all-important referent. The lewd nature of the conduct itself, if open and notorious, was the main characteristic of the offense. When state legislatures began codifying various subsets of this common law crime, they did not abandon its “open and notorious” characteristic. The history of these codification efforts
leads to one of two possible conclusions about the framers’ intentions with respect to the regulation of sexual intercourse and masturbation. On the one hand, it could be inferred that, because the framers so relentlessly prohibited even as little as public nudity, it necessarily follows that public intercourse and masturbation would have been regarded as even more odious and even more obviously subject to state regulation. On the other hand, it could be inferred that, although the framers understood that public nudity could be regulated, they apparently understood that public nudity while engaged in intercourse or masturbation could not (or that both were permissible as long as the offenders kept their clothes on). Frankly, given the evidence that we have described about antebellum public mor*362 als, statutes, and case law, we find the latter possibility to be remote, to say the least.
State v. Ciancanelli,
It follows that masturbation in a public place, in a manner obvious to all, falls squarely within reach of the common law. See generally Miller v. California,
B. Obscene “Display Or Exposure” Under Code § 18.2-387
Consistent with the common law, Virginia codified a particular type of lewdness offense in Code § 18.2-387. Leaving little doubt as to its intentions, the General Assembly criminalized the “obscene display or exposure” of one’s person or private parts in a public place. Code § 18.2-387 (emphasis added).
Moses argues the word “exposure” means nudity and “display” means nothing more, making the disjunctive no more than a redundant conjunctive. We find this reasoning inconsistent with first principles of statutory construction. As has been often said: ‘Words in a statute should be interpreted, if possible, to avoid rendering words superfluous.” Cook v. Commonwealth,
Unless the word “display” is superfluous, it must mean something different from “exposure.” If “exposure” can only mean some degree of nudity, then “display” necessarily means something different. And so it does. Among the definitions of “display” in ordinary speech (particularly where, as here, it is used as a noun rather than a verb) is the “demonstration or manifestation of something.” American Heritage Dictionary 407 (2d coll. ed. 1985).
For example, Code § 18.2-53.1 criminalizes the “display” of a firearm while committing a felony. A robber can effectively “display” a firearm in his pocket even though completely hidden from view. Cromite v. Commonwealth,
Properly understood, every visible exposure of one’s genitals necessarily involves a display of one’s genitals. But that does not prove the reverse: that every display necessarily includes an exposure. Hence, a robber can still display a handgun in his pocket while not exposing it to sight. So too a man masturbating in public can still display his “person” or “private parts” while not exposing his penis to sight. We thus reject Moses’s claim that the display-or-exposure formulation in Code § 18.2-387 codifies a mere semantic redundancy, a pairing of interchangeable synonyms.
III.
The trial court found Moses’s public masturbation to be an obscene “display” of his “person, or the private parts thereof’ in violation of Code § 18.2-387. This conclusion cannot be set aside simply because Moses made this display while fully clothed.
Affirmed.
Notes
. As he concedes on appeal, Moses never challenged the obscene nature of his conduct. Rule 5A:18 precludes him from asserting this challenge for the first time on appeal. No basis exists in this case for invoking the "good cause” or "ends of justice” exceptions to Rule 5A:18.
. The "best construction” of a statute codifying common law principles is the one "most near to the reason of the common law, and by the course which that observes in cases of its own.” Chichester v. Vass,
. This point demonstrates the irrelevance of cases like State v. Jaime,
. Under Virginia law, stare decisi s does not "foreclose inquiry” into an issue not previously "raised, discussed, or decided.” Chesapeake Hosp. Auth. v. Commonwealth, 262 Va. 551, 560,
Dissenting Opinion
with whom FITZPATRICK, C. J., and ELDER, J., join, dissenting.
The sole issue in this case is whether the evidence was sufficient to prove the offenses charged in the arrest warrant: that on two occasions Kenneth Samuel Moses “did unlawfully in violation of [Code § ] 18.2-387 ... intentionally make an obscene display of [his] person or private parts in a public place or in a place where a child under the age of 18 years and others were present.” Because I believe that Code § 18.2-387 codified the common law’s understanding of “expose” and “display” to mean without clothes, I do not believe Moses’s behavior falls within the purview of the statute. I would, therefore, reverse the misdemeanor convictions.
I.
This issue, whether Moses’s conduct fell within the purview of the statute, was clouded in this case from the beginning. At the bench trial, the prosecutor informed the judge as follows in his opening statement:
[W]e must tell the Court that the only issue before the Court from the Commonwealth’s perspective is does the defendant’s conduct constitute indecent exposure of his person as opposed to his private parts.
Judge, that issue is not decided in the Commonwealth, what does it mean to expose your person. The Commonwealth does have a case from Iowa in 1977. That’s the only jurisdiction that we found that provides some insight. I will tell you that that case is contrary to the Commonwealth’s position. Iowa said if you don’t expose the actual skin itself, there is no indecent exposure. This issue is not decided in the Commonwealth of Virginia. We’re going to ask the Court to basically make some law today. And I believe [Moses’s attorney] will argue that point.
(Emphasis added).
Moses’s attorney responded, in part, as follows:
Judge, if you’re going to make law today, I would submit to you it’s going to be bad law. Because what [the prosecutor]*366 is saying is if someone goes up, a male usually, in most cases it’s going to be a male, goes up and just scratches at his crotch area because he has an itch to scratch or something like that, that could possibly be considered to be exhibiting something.
And I would submit to the Court that can’t be the case. It would just be too easy for too many people to say I saw him grab his genital area. Without — our position is that without exposure of actual flesh, that that’s — there is no conviction. Just rubbing parts of your clothing should not be a crime. You know, you can’t protect people from — we would submit you can’t protect people from everything bad that’s going to happen. While this event shouldn’t have been done, it wasn’t in good taste, it obviously shouldn’t have been done, we don’t think it meets the meaning of a crime under the law.
At trial, a ten-year-old girl testified that when Moses began a conversation with her in a store he had his hands in his pants as he talked to her. She saw “his hand through his pants” and said his hand was rubbing his penis. She also testified that she did not see the “shape of his penis under his clothes.” The eleven-year-old girl testified she saw Moses in another store on another occasion behind a display rack. He was looking at her and “rubbing himself ... [i]n his private area.” She described it as the place “around his waist.” She told her mother “that ... man was adjusting himself.”
At the conclusion of the evidence, the prosecutor argued several points, including the assertion “that the statute is contemplating types of displays or exposures where private parts of an individual are not seen. And that’s why the statute has person or private parts.” Moses’s attorney argued that if the statute “taken to mean an obscene display, there certainly are no standards for deciding what a display is[, and in] our opinion — we would argue in this case that a display is not something you can decide.” He also argued that the statute required proof that the defendant “actually exposed some skin.”
And this fact finder is going to find that the conduct of Mr. Moses was not acceptable in our community and that it violates the standards of sexual candor. It’s clear that he was grabbing his parts when he approached these two young girls in Wal-Mart and Kmart. And that one girl testified he had his hand in his pants as if he were manipulating himself or masturbating himself. And the other girl testified he was grabbing his parts and looking at her. And that’s not the same as if you see a baseball player or football player or somebody else sometimes may grab their parts.
II.
Code § 18.2-387 provides as follows:
Every person who intentionally makes an obscene display or exposure of his person, or the private parts thereof, in any public place, or in any place where others are present, or procures another to so expose himself, shall be guilty of a Class 1 misdemeanor. No person shall be deemed to be in violation of this section for breastfeeding a child in any public place or any place where others are present.
(A)
The evidence failed to prove the conduct charged in the warrant: that Moses displayed his private parts. He outwardly exhibited nothing, not even a visible outline of his private parts. The testimony of both children establishes that they did not see his private parts. Although one child testified that Moses rubbed his penis, she expressly testified that she saw no objective physical manifestation of his penis. She saw his “hands through his pants.” The other child was less specific, testifying only he was “rubbing himself ... [i]n his private area.” Addressing Moses’s conduct, the trial judge only found that he was “grabbing his parts.”
Although, in both instances, the testimony established movement of Moses’s hand in his “private area,” this evidence
(B)
Furthermore, my review of the language of the statute itself and the common law of indecent exposure compels the conclusion that the words “display” and “exposure” as used in Code § 18.2-387 codify the common law and that the statute applies only when the body part in question was exposed without clothing and likely to be seen. See also 1960 Va. Acts, ch. 233 (first enacting Code § 18.1-236, the predecessor statute, which proscribed the same behavior, “obscene display or exposure,” as Code § 18.2-387).
The structure of the statute itself establishes that the legislature intended the term “display” to be synonymous with the term “exposure.” The legislature used the terms “display or exposure” in the first part of the statute to proscribe the behavior in which an individual may not himself or herself engage, but it used only the term “exposure” in the second half of the statute to set out the behavior in which an individual may not “procure” another to engage. It would be anomalous under the language of this statute to hold that the legislature intended to punish a defendant for engaging in either of two types of behavior himself but to punish him for enticing someone else to engage in only one of those two types of behavior. A court must construe the challenged statute “from its four corners and not by singling out particular words or phrases.” Smith v. Commonwealth,
Code § 18.2-387 is a codification of the common law, continuing the ban against indecent exposure.
“[T]he best construction of [a] statute is[ ] to construe it as near to the reason of the common law as may be” The reason is that the Legislature is presumed to have known and to have had the common law in mind in the enactment of a statute. The statute must therefore be read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law.
Id. (quoting Chichester v. Lass,
At common law, a conviction for indecent exposure required proof that the accused intentionally exposed private parts in a manner that they could reasonably have been seen by members of the public. Noblett v. Commonwealth,
Black’s Law Dictionary, which is referenced in Wicks, treats the terms “exposure” and “display” as synonymous, defining “indecent exposure” as “[a]n offensive display of one’s body in public, esp. of the genitals. Cf. Lewdness.... ” Black’s Law Dictionary 773 (7th ed. 1999) (emphases added); see also Noblett,
Moreover, our adoption of just such a definition of “expose” in Siquina v. Commonwealth,
“Expose” originated as an adaptation of the Latin verb “exponere,” which includes the following definitions: 1) to put or bring out into the open, or 2) to put on show or display. 5 The Oxford English Dictionary 578 (2d ed.*373 1989); Oxford Latin Dictionary 651 (1982). Today, the definition has remained true to its roots. Webster’s Third New International Dictionary 802 (1981), defines “expose” as “to lay open to view.” In Black’s Law Dictionary 579 (6th ed. 1990), “expose” is defined as: “To show publicly; to display; to offer to the public view....” Black’s definition of “indecent exposure” is also instructive: “This term refers to exhibition of those private parts which ... human decency ... require[s] shall be kept covered in [the] presence of others. Exposure ... becomes indecent when it occurs at such time and place where [a] reasonable person knows or should know his act [may be viewed by] others.” Id. at 768.
Siquina,
Thus, I would hold that the statutory language and the common law history require that an accused actually render visible or cause to be seen or likely to be seen the body or the proscribed part. The statute requires proof of some degree of nudity of the body or the private parts of the body under circumstances denoting obscenity and satisfying the other statutory requirements. Cf. Copeland v. Commonwealth,
III.
The statute is not a general bar to a person’s conducting himself or herself in an indecent or offensive manner. Thus, for example, the statute obviously does not purport to proscribe tight pants or sweaters or other garments that opaquely clothe the body but leave some portion of the population
Moses is serving a ten-year sentence, with four years suspended on various conditions, for the felony of taking indecent liberties with a child pursuant to Code § 18.2-370. Further, the prosecutor obviously selected among the various other statutes under which Moses could have been prosecuted in deciding how to proceed. See, e.g., Code § 18.2-67.3 (proscribing aggravated sexual battery); Code § 18.2-67.4 (proscribing sexual battery); Code § 18.2-370(1) (proscribing indecent liberties with children); see also Code § 18.2-26 (proscribing attempts to commit noncapital felonies). See also Jaime,
The dispositive issue in this case is whether Moses’s behavior constituted a “display or exposure of his person, or the private parts thereof,” analogizing to the common law definition of that offense. I would hold it did not, and I would reverse both misdemeanor convictions.
. An analogy between the use of the term "display” in the indecent exposure statute and Code § 18.2-53.1, which proscribes "display[ing]” a firearm in a threatening manner during the commission of certain felonies, is inapt for two reasons.
First, the Virginia cases construing the firearms statute to hold a weapon was displayed to a victim through a sense other than actual sight involved the sense of touch. See, e.g., Cromite v. Commonwealth,
Second, the evils at which the two statutes are directed are entirely different. The presence of a firearm as an aid to a felony may be just as effective even where the firearm is not displayed visually; one need not see a firearm in order to be motivated by fear of the potential harm it represents. See id. In the case of indecent exposure, however, the core of the offense is just that — the exposure itself, coupled with the related shock and embarrassment, People v. Massicot,
. Indeed, Code § 18.2-387 is titled "Indecent exposure.” Although the title of a statute is for "informative convenience,” Good v. Commonwealth,
. Wicks and Siquina suggest that we need to have an actual display of a person’s genitalia in order to find conduct sufficient to convict for indecent exposure under Code § 18.2-387. The facts in Wicks showed that while the police officer "could not be certain that he had actually seen the defendant’s organ because his hand was covering it,” the officer did testify that he saw the defendant "holding his hand in front of his trousers and ... urinating” as he walked.