Kenneth Samuel MOSES v. COMMONWEALTH of Virginia.
Record No. 0985-03-3
Court of Appeals of Virginia, Richmond.
April 12, 2005.
611 S.E.2d 607
Present: FITZPATRICK, C.J., and BENTON, ELDER, FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY and McCLANAHAN, JJ.
UPON REHEARING EN BANC
D. ARTHUR KELSEY, Judge.
Kenneth Samuel Moses challenges his conviction on two counts of making an obscene display or exposure in violation of
I.
On appeal, we review the evidence in the “light most favorable” to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle requires us to “‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.‘” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis in original and citation omitted).
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
II.
At trial, Moses argued that his conduct did not violate
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-
als, statutes, and case law, we find the latter possibility to be remote, to say the least.
State v. Ciancanelli, 181 Or.App. 1, 45 P.3d 451, 459 (en banc), petition for review allowed, 335 Or. 90, 58 P.3d 821 (2002).
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, 413 U.S. 15, 25 (1973) (noting that patently offensive “representations or descriptions of masturbation” are “obscene“); State v. Maunsell, 170 Vt. 543, 743 A.2d 580, 582-83 (1999) (upholding conviction for “open and gross lewdness” where defendant “massag[ed] his genitals through his pants” in a public place); see also United States v. Statler, 121 F.Supp.2d 925, 927 (E.D.Va.2000) (observing that “there is little doubt that masturbation in a public bathroom, if proven, fits well within the federal regulation proscribing ‘a display or act that is obscene‘“).
B. OBSCENE “DISPLAY OR EXPOSURE” UNDER CODE § 18.2-387
Consistent with the common law, Virginia codified a particular type of lewdness offense in
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, 268 Va. 111, 114, 597 S.E.2d 84, 86 (2004); Zhou v. Zhou, 38 Va.App. 126, 136, 562 S.E.2d 336, 340 (2002) (observing that “basic canons of statutory construction” exclude interpretations rendering statutory language “superfluous“). “It is the duty of the courts to give effect, if possible, to every word of the written law.” Hodges 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).3 It is just that definition we give to the word “display” when used in other provisions of the Code.
For example,
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
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
Affirmed.
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 [
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]
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.
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
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, 8 Va.App. 109, 113, 379 S.E.2d 374, 376 (1989). “If the several provisions of a statute suggest a potential for conflict or inconsistency, we construe those provisions so as to reconcile them and to give full effect to the expressed legislative intent.” Mejia v. Commonwealth, 23 Va.App. 173, 176–77, 474 S.E.2d 866, 868 (1996)
“[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. Vass, 5 Va. (1 Call) 83, 102 (1797)). Thus, where the statute has not expressly or by necessary implication changed the common law, we must assume the common law definitions apply. See People v. Massicot, 97 Cal.App.4th 920, 118 Cal.Rptr.2d 705, 711 (2002) (holding that the common law targeted genital exposure, therefore, in the “absence of express definitions, ... we may construe the statute to encompass indecent exposure as it was defined at common law“) (citing 2A J.G. Sutherland, Statutes and Statutory Construction § 50.03, at 435 (Norman J. Singer ed., 4th ed. 1984)). Further, penal statutes “must be strictly construed against the state and limited in application to cases
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, 194 Va. 241, 244-46, 72 S.E.2d 241, 243-44 (1952) (citing definitions indicating the offense is committed where the “‘act is seen or is likely to be seen‘“) (quoting 67 C.J.S. Obscenity § 5, at 25 (1950)). Indecent exposure statutes from other states “have generally adopted the common law requirements of the offense of indecent exposure; to convict someone of indecent exposure, there must be shown a wilful and intentional exposure of the private parts of the body.” 50 Am. Jur.2d Lewdness, Indecency, and Obscenity § 17, at 291-92 (1995). Thus, courts typically have held that “[i]ndecent exposure at common law consists of exposure in public of the entire person or of parts that should not be exhibited.” State v. Chiles, 53 Wash.App. 452, 767 P.2d 597, 599 (1989); see also Massicot, 118 Cal.Rptr.2d at 713. Significantly, the Supreme Court of Virginia has recognized a definition of common law “indecent exposure” that requires “[e]xposure to sight.” Wicks, 215 Va. at 276, 208 S.E.2d at 754 (quoting Black‘s Law Dictionary 909 (4th ed. 1951) (emphasis added)).
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, 194 Va. at 245, 72 S.E.2d at 243-44 (referring to exposure as an “exhibition“); Black‘s, supra, at 595 (defining “exhibitionism” as an “indecent display of one‘s body” (emphasis added)); Massicot, 118 Cal.Rptr.2d at 712 (noting that conduct sought to be prohibited by common law indecent exposure was “exhibitionism,” which it defined as “the display of the male genital organs for sexual gratification” (emphasis added)). The Oregon Court affirmed a conviction in State v. Ciancanelli, 181 Or.App. 1, 45 P.3d 451 (2002), involving an act
Moreover, our adoption of just such a definition of “expose” in Siquina v. Commonwealth, 28 Va.App. 694, 697-99, 508 S.E.2d 350, 352-53 (1998) (construing the portion of
“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.
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, 31 Va.App. 512, 515-16, 525 S.E.2d 9, 10-11 (2000) (holding that evidence of defendant‘s exposing his genitals and being visibly aroused in a woman‘s backyard was sufficient to support conviction for indecent exposure); Morales v. Commonwealth, 31 Va.App. 541, 543, 525 S.E.2d 23, 24 (2000) (holding evidence of defendant‘s exposing his erect penis and masturbating outside a lighted window sufficient to convict for indecent exposure).
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
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.
Notes
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, 3 Va.App. 64, 67-68, 348 S.E.2d 38, 40 (1986) (involving a robber who approached the victim with his hand in his pocket and “stuck something [‘hard‘] in his stomach ... that ‘felt ... like a pistol‘“). Here, Moses‘s conduct did not involve tactile experiences. Rather, they involved only sight of hand movement.
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, 97 Cal.App.4th 920, 118 Cal.Rptr.2d 705, 711–12 (2002), rather than the fear that it represents some intent to do physical harm to the victim. Other statutes criminalize sexual behavior that threatens direct physical contact or harm. As a result, what it means to display a firearm during the commission of a felony has little or no relevance to determining what types of displays violate the indecent exposure statute.