*1 incarceration, judge for the the trial appellant has caused years though incarcerated three even final convic- tion imposed only years order a term of two of confinement. Judge As Coleman noted his dissent to the panel opinion [judge’s] “the trial failure to was award credit clear error” and judge’s statutory excess authority.2 I dissent.
Court
Salem.
Aug. 10, 2004. J., Kelsey, filed opinion. dissenting Judge opinion Benton judge continues to hold to his "that a trial has statutory authority impose jail neither nor inherent incarceration suspension imposed penitentiary condition for of an sentence.” 1083, 1087-92, Nuckoles v. (1991) (Benton, J., dissenting). *4 Peters, Sr., Eric Lynchburg, appellant. G. Malek,
Deana A. (Jerry Senior Assistant General Attorney General, brief), Kilgore, Attorney W. on for appellee. BENTON, KELSEY, Present: ELDER and JJ. JR., BENTON, Judge.
The trial judge convicted Kenneth Samuel Moses of the felony taking child, § indecent liberties awith 18.2- 370, and two misdemeanor an making counts obscene person his in violation of Code 18.2- 387. Moses contends the evidence was insufficient to support the misdemeanor convictions. agree, We and we both reverse misdemeanor convictions.
I. proved ten-year-old girl evidence a department was in store with her mother and her in August brother she walking Later, when saw Moses among aisles. in the line, began check-out Moses with conversation the girl. girl Moses told the was very she beautiful and told he her thought people other girl must have said this to her. The testified that Moses had his in his pants hands as he talked pants” her. She “his through saw hand and said his hand rubbing penis. also She testified that she did not see of his “shape penis under his clothes.” girl’s When the arrived, mother left girl the store with her mother and *5 store, the incident to girl reported the the brother. Outside her mother. eleven-year-old was in another girl
In December of an girl mother. The Moses department store with her saw “rubbing ... looking rack at her and himself display behind ... “that man was private area.” She told her mother [i]n merchandise, paid her mother adjusting himself.” After ap- from momentarily away girl. she walked the Moses alone the entrance and girl the when she was near proached ... was a little and asked how pretty girl “told that [her] [she] Later, lot, girl reported butt in the parking felt.” [her] her the conversation to mother. of violating
The trial convicted Moses two offenses judge § Code 18.2-387.1
II. § follows: provides Code 18.2-387 as Every intentionally display who makes an obscene person thereof, in exposure person, or of his or the present, or in others are any public place, any place where himself, of a expose guilty or another so shall be procures shall to be person misdemeanor. No be deemed Class any breastfeeding violation of this section for child place any place present. where others are or indecent, was proved evidence Moses’s conduct “an prove we failed to either but hold evidence or parts ... of his there person, private obscene ... or person, private of’ or “an obscene added). Our (emphases § thereof.” Code 18.2-387 parts and the review of the common law compels statute the conclusion that language of the itself felony supporting conviction 1. We do describe evidence not separate are not on a occasion and because those events occurred Furthermore, germane appeal. on because Moses to the issues this sufficiency prove acted challenge of the evidence to he does not appeal aspect on intentionally, we also need review an issue of the misdemeanor convictions. words and as used in “display” “exposure” 18.2-387 are synonymous applies that the when the body part question clearly was visible clothing without exposed clothing likely without be seen.2 See also *6 (first Acts, 18.1-236, § 1960 ch. 233 enacting Va. Code the statute, predecessor behavior, which proscribed the same “ob- 18.2-387). exposure,” § scene or as term exposure’ precise, “The ‘indecent had well meaning defined at common City law....” Wicks v. Char of (1974) lottesville, (inter 752, 215 Va. 755 preting a local containing “indecently ordinance the term expose”). construction
“[T]he best statute to construe it as [a] is[ ] be____” near to reason may the of the law common The reason Legislature is that the is to presumed have known and to had the in have common law mind in the enactment of a statute. The statute along must therefore be read with provisions law, the of the common and latter will be read into the it clearly statute unless from appears express language byor necessary implication purpose that the of the to change the common law. Vass, (1 Call.) Id. 83, (1797)); v. 5 (quoting Chichester Va. 102 Massicot, see People 920, v. 97 Cal.App.4th Cal.Rptr.2d 118 (2002) 711 in (holding that of express “absence definitions, may ... we to construe the statute encompass exposure indecent as it at was defined common law” 2A (citing Sutherland, Construction, 50.03, § J.G. Statutes Statutory (Norman ed.1984))). at ed., J. 4th Singer Further, penal statutes be strictly against “must construed the state and limited in application falling to within clearly cases the lan Commonwealth, guage of the statute.” v. Turner 226 Va. Both history of the common exposure law offense of the language indecent penis No evidence established that Moses's covered was visible in through clothing outline form in either of the incidents issue. Thus, we need consider such would whether behavior constitute a "display exposure” of Code violation 18.2-387. the successive code sections by enacting used legislature indecent fail to proscribed support that have change common legislature conclusion that the intended the word in its enactment of Code “display” law when used § 18.2-387. law,
At
inten
common
involved
in a
tionally exposing
one’s
manner that same
reasonably
public.3
could
have been seen
members
241, 244-46,
Noblett
S.E.2d
Va.
com
(citing
indicating
definitions
offense is
“
”
likely
mitted where the
‘act is
or is
seen’
seen
(1950))).
5,§
(quoting
Obscenity
Supreme
C.J.S.
at 25
Virginia
has
law
recognized
Court
definition
common
“
”
exposure”
requires
‘[ejxposure
“indecent
sight’
Wicks,
Law
(quoting
Va. at
S.E.2d at 754
Black’s
(4th ed.1951)
added)).
Dictionary 909
Black’s Law
(emphasis
Wicks,
terms
Dictionary, which is referenced
treats the
*7
as
“indecent
“exposure”
“display”
synonymous, defining
”
one’s
body
public,
as
offensive
of
exposure
display
“[a]n
”
genitals.
of the
Black’s
Dictio
esp.
Cf. Lewdness....
Law
(7th ed.1999)
Noblett,
added);
(emphases
773
see
nary
also
as
245,
(referring
194
at
72
at
to exposure
Va.
S.E.2d
243-44
Black’s,
“exhibition”);
supra,
(defining
an
at 595
“exhibition
added));
of
display
body” (emphasis
ism” as an
one’s
“indecent
Massicot,
(noting
sought
118
at 712
Cal.Rptr.2d
conduct
prohibited by
exposure
to be
common law indecent
was “exhi
bitionism,”
of
genital
which it defined
“the
the male
added)).
organs
gratification” (emphasis
sexual
just such a
of
adopted
“expose”
We
definition
Commonwealth,
694, 697-99,
v.
28
Siquina
Va.App.
“[sjtatutes
generally adopted
exposure
3.
have
the common
Indecent
requirements
exposure;
the offense
indecent
to convict
law
of
of
exposure,
a wilful and
someone
there must
shown
body.”
exposure
Am.Jur.2d
intentional
of the
50
Thus,
Lewdness,
(1995).
Indecency,
Obscenity §
at 291-92
law
typically have held that
at common
"[i]ndecent
courts
person
parts that
public of
entire
or of
consists of
Chiles,
Wash.App.
767 P.2d
should not be exhibited.” State
53
Massicot,
(1989);
Cal.Rptr.2d at
599
also
118
see
(1998),
where we
portion
construed the
of Code
18.2-370,
proscribing “knowingly and intentionally ‘ex-
”
posting]
genital
sexual or
to
parts
any
[one’s]
child.’ Noting
that the dispositive issue was whether the indecent liberties
statute required that the child actually see the perpetrator’s
genitals,
held,
we
based on analogy to the common law and the
Supreme Court’s interpretation
Wicks,
of it in Noblett and
that actual viewing was not required, but that the evidence
had
prove
the genitals were
or likely
“seen
to be seen.”
Siquina,
698-99,
“Expose” originated as an adaptation of the Latin verb “exponere,” 1) which includes the following definitions: put 2) or out bring into the open, or to put on show display. (2d English Dictionary ed.1989); Oxford Latin Dictionary 651 Today, the definition Oxford has remained true to its roots. Webster’s Third New Inter- national Dictionary (1981), defines “expose” as “to lay open to (6th view.” In Black’s Law Dictionary ed.1990), “expose” is defined as: “To show publicly; display; to offer to view....” Black’s definition exposure” “indecent is also instructive: “This term refers to exhibition of private those parts which ... human decen- cy ... require[s] shall be kept covered in presence of [the] others. Exposure ... becomes indecent when it occurs at such place time and where reasonable person [a] knows or should know his act [may by] be viewed others.” Id. at 768. 697-98, Id. at 508 S.E.2d at (emphases added); see also Brooker v. 41 Va.App. 616, 587 S.E.2d (adopting Siquina’s definition “expose”).
The structure of the statute itself also fails to that establish the legislature not did intend the term “display” to be synonymous with the term “exposure.” legislature used the terms “display exposure” in the first part of the proscribe statute to 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
574
in
not
to
may
“procure”
which an individual
another
behavior
It
the
of this
engage.
language
would be anomalous under
legislature
to
the
a
punish
statute
hold
intended to
for
types
either of two
of behavior
engaging
him for enticing
engage
himself but
someone else to
punish
types
A
must
only
one of those two
of behavior.
court
not
the
“from its four corners and
challenged
construe
statute
v.
Smith Com-
by singling
phrases.”
out
words or
particular
monwealth,
(1989).
8 Va.App.
109, 113,
376
a
for
suggest
potential
“If the several
a
provisions
statute
as to
inconsistency,
provisions
conflict or
we construe those
so
full
give
legisla-
reconcile them and to
effect to the expressed
Commonwealth,
Mejia
v.
intent.”
23
176-
Va.App.
tive
(en
banc).
should
S.E.2d
statute
“[A]
be
so that
it
results.”
never
construed
leads
absurd
Commonwealth,
Branch
Va.App.
S.E.2d
422, 424
to the
legislative
Absent
clear
intent
us to
contrary, principles
statutory
compel
construction
“display”
conclude the
intended that a
in violation
legislature
an
requires
“exposure.”4
of the statute also
analogy
"display”
the use of
indecent
4. An
between
the term
in the
18.2-53.1,
proscribes
"display[ing]”
which
statute and
threatening
during
in a
the
of certain
firearm
manner
commission
felonies,
inapt
is
two reasons.
First,
Virginia
construing
firearms
to hold a
cases
through
weapon
displayed
to a
a sense
than actual
victim
other
See,
sight
e.g.,
involved
sense of touch.
Cromite v.
64, 67-68,
(1986) (involving
Va.App.
a robber who
approached
pocket
with his
some-
the victim
hand in
and "stuck
Here,
”).
thing
...
pistol’
stomach
‘felt ...
like a
['hard']
Rather,
they
experiences.
Moses's
did not involve tactile
conduct
proved
vague visual
not
sufficient to show
involved
manifestations
penis
supra
trousers. See
footnote 2.
even
outline of a
beneath his
Second,
entirely
are
are
evils at which
two statutes
directed
may
just
felony
presence
different. The
of a firearm as an aid to
displayed visually;
need not
effective even
the firearm is
one
where
potential
of the
harm it
see a firearm in order to be motivated
fear
67-68,
Cromite,
In the
represents.
See
575 Thus, terms, its by plain statute that requires the the render actually accused visible or cause to be seen or likely body part. or the proscribed be seen the The statute of requires proof degree body of some of or the nudity body of under circumstances denoting ob scenity satisfying statutory and the other requirements.5 Cf. Commonwealth, v. Copeland 512, 515-16, 525 Va.App. (2000) S.E.2d (holding that evidence defendant’s exposing genitals his and in a being visibly aroused woman’s backyard was sufficient to support conviction for indecent Commonwealth, Morales exposure); 541, 543, Va.App. (2000) 525 S.E.2d (holding evidence of defendant’s his exposing penis masturbating erect outside a lighted window convict exposure). sufficient to for indecent
III. proved The evidence did not expose Moses his genitalia parts on private the children either occasion.6 proved fully evidence Moses was clothed and exposed no part proscribed of his body Hart v. by the statute. Cf. result,
tact or
display
during
harm. As a
what it
means
firearm
felony
determining
commission of a
has little or no relevance to
what
types
displays
exposure
violate the
statute.
indecent
supra
5. See
footnote 2.
Citing
Siquina,
suggests
Wicks and
that we
dissent
do not need to
person’s genitalia
have an
actual
in order to find conduct
§
sufficient to convict
under
18.2-387. The
showed, however,
police
facts in Wicks
that while
officer
"could not
actually
organ
be certain that he had
seen the defendant’s
because his
it,”
covering
testify
hand was
the officer
he saw
did
the defendant
"holding
urinating”
his
front of
...
hand in
his trousers and
as he
Thus,
walked.
(holding that a anus, pubic his area and buttocks penis leaving in an intentionally exposing violated exposed,” buttocks). in- area and In both pubic obscene manner *10 stances, clothing his “private parts” rubbed his beneath Moses and in a where the girls position at the while looking while instance, however, In did could his neither girls see conduct. body to of his that he rubbed. any part he cause visible be of penis that the his shape testified she did not see girl One that he was girl he it. other testified rubbed “rubbing private rack ... his area.” standing a behind She, likewise, genitalia. did not his see not general person’s is a bar a
The statute
in an
or offensive
conducting himself or herself
Thus,
obviously
statute
does not
example,
manner.
or
pants
gar
or
other
tight
sweaters
purport
proscribe
of
body
portion
clothe the
but leave some
opaquely
ments
sensitivity
tightness
due to
population
offended
about
not,
terms,
gestures
It
its
hand
garment.
of the
does
bar
Indeed,
nothing
might
considered offensive.
words,
ordinary par
meanings
when
their
statutory
given
or
lance,
rubbing
act of
himself
person
bars a
from
mere
more. The statute bars “obscene”
proof
herself without
conduct,
expose parts
does not
not indecent conduct that
See,
v.
body.
e.g., State
Jaime
Conn.Cir.Ct.
(1967)
“shaking his
(holding that defendant’s
A.2d
region”
exposing
underpants
in his
and
white
pelvic
hand
prohib
violating
a conviction for
support
insufficient to
State
indecently expos[ing]
person”);
and
his
iting “wantonly
(holding
Idaho
560 P.2d
Wymore, 98
“publicly exposing]
a
from
barring
person
that a statute
gestures
reach
person
genitals”
or his
does not
obscene
expose
private parts).
the accused did
comments where
whether
disagreement
over
case is not about
This
rude,
It also is not
disgusting,
indecent.
Moses’s acts were
sen-
serving
ten-year
is
Moses
freeing
pedophile.
about
tence,
years suspended
conditions,
with four
on various
for the
felony
taking
pursuant
indecent liberties with a child
§
Further,
Code
18.2-370.
prosecutor obviously
selected
among the various other statutes under which Moses could
prosecuted
See,
have been
in deciding
proceed.
how to
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
children);
indecent liberties with
see also
18.2-26 (proscribing attempts to commit noncapital
felonies); Jaime,
Thus, in this case is whether dispositive issue person, ... of his constituted “an obscene behavior of his exposure or “an ... parts thereof’ obscene private thereof,” to the com- analogizing private parts or the person, that either proof of that offense. Absent mon law definition Moses’s likely to have seen reasonably saw or was girls uncovered, evidence was insuffi- at partially least genitals, statute at particular under the support cient to the convictions case, with which Moses of the intent regardless issue in this laws the apply and job interpret It is our acted.7 otherwise, holding, present Although contends our the dissent law, compel existing the conclusion that conjunction case does not with bathing wearing thong suit violates a swimmer a female masturbating his trench coat a man beneath exposure statute whereas requires proscribed act both a The indecent does not. in Hart involved not swimmer particular intent. Our decision and shorts supply store who wore Velcro a man in an office at the beach but "form-fitting” “G-string” skimpy,” dropped a “real to reveal which he coverage provided for his penis and no the outline of his that showed remaining 441 S.E.2d at pubic area and buttocks. because his choice We Hart violated the statute 706-07. held person, or the 'an of his of attire "constituted ” buttocks, thereof,’ groin because his by exposing but also his behavior, clerk about including suggestive statements to the store his on, shorts, delay putting his back and his G-string shorts later, wearing days indicated an the same shorts six return to the store 79-80, exposure.” Id. at display or intent to make "an obscene S.E.2d at 707-08. Hart, Thus, G-string wearing a swim suit at the under sunbather statute, "exposure” portion of the but more might beach violate *12 requisite intent. In required prove acted with the to she would be masturbating beneath his trench coat obvious fashion of a man in case view, just the to exposing person or his without that his would establish likely true—the evidence would reverse requisite exposure of would not establish the was obscene but behavior gap a in the parts. possible existence of person private The his permit the does not and lewd behavior proscribing obscene statutes of indecent expand scope of the offense judiciary to statutory law bounds. beyond and common its reasons, we reverse both For these enacted.8 has legislature convictions. misdemeanor
Reversed and dismissed.
KELSEY, J., dissenting.
I. pedophile— admitted August 4, the defendant—an On defendant a The girl a at Wal-Mart.9 approached 10-year-old She pretty girl.” a real to and said: “You’re up girl came a “You look He followed. you” away. “thank and walked said then The defendant my like he added. granddaughter,” lot of his picture” grand- if “like to asked her she would see he her a waiting for showed response, daughter. Without “Do oral sex with a man. performing of a woman photo young give you “I’ll want do it?” the defendant asked. you $20.” mother, crying hysterically. The ran to her girl August 8, up 10-year- walked to a On at a of the girl old Kmart. While he masturbated front child, The his “very he told her she was child saw beautiful.” penis. Pale with pants” exercising hand “through happened. later told her what fright, child mother 4, 2001, 11-year-old the defendant stalked an On December at a He made with child and girl eye-contact Wal-Mart. If, posits, pedophilef’s] as the case involves "a dissenter Moses's being masturbating young front of a as he tries to talk her into child victim,” his next that was matter for the Commonwealth to consider charge determining charge. failure under what offenses appropriate justify upholding statute does not our Moses’s convic- prove of an evidence he tions two counts offense the does not committed. appeal, "light favor- 9. On we should review the evidence in most Hudson, able” to the Commonwealth v. 265 Va. Commonwealth. principle requires us to S.E.2d "That with Com- 'discard the evidence of the accused in conflict that of the monwealth, regard to the as true all the credible evidence favorable ” may and all fair be drawn therefrom.' Commonwealth inferences Seaton S.E.2d (citation omitted). *13 passed so, her the aisle several times. As he did defendant masturbated with a down his pants hand while looking directly During at her. a moment while brief spoke friend, child’s mother a approached with defendant He girl. told her she was a “pretty girl” and asked her how her felt.” The child ran to her “butt mother confused and upset. arrest,
After his the defendant he admitted showed lewd photo to the first and child oral sex her. solicited from He him, also admitted the two According other incidents. to he operandi modus used a similar about to 50 times with It young girls. “Mnda He became habit.” showed the same photo “probably girls. to half a dozen” young pattern This behavior, confessed, he began about four months earlier when for “some unknown he approached young girl reason” and told her “she was very girl away attractive.” The walked after he offered to “take her back to cabin” [his] mountains. he following stayed week at a friend’s “I home. found
myself recounted, walking my sleep,” he slept-walked “my buddy’s Thereafter, into daughter’s bedroom.” the de- began fendant to frequent Wal-Mart and Kmart because you is “[t]hat’s where the crowd and where can around wander at people.” and look “It became method of letting off steam,” explained, he I no “because had other sexual outlet.” He went to several libraries for the same His purpose. said, problem, the underlying was the “need to fulfill my sex drive.”10 majority disagree I with the this contextual has no evidence legal bearing It relevance. has direct for it establishes the defendant's See, subjective underlying mens rea—the intent his criminal conduct. e.g., Hart v. that, statute, (holding Virginia’s indecency under the defendant's establishing acting statements the victim "aided in as he intent in did”). that, suggestion implicit perhaps, facts These also refute (as merely "adjusting phrase by defendant was used himself” was mother) 11-year girl speaking express an old to her or the assertion that, by maybe, appeal made on defendant’s counsel the defendant evaluation, the sex offender the defendant’s reviewing
After “predator” a sexual found the defendant judge trial try I in this case is to least can do concluded that “the again incarcer- committing crimes you from these prevent taking indecent liberties of one count of ating you.” Convicted and two counts of indecent a child under Code 18.2-370 with *14 18.2-387, § or under Code the defendant display exposure only his latter two convictions. appeals
II.
mas-
public
holds that the defendant’s
majority opinion
law,
as
turbation,
§
a matter
not violate Code
18.2-
does
statute,
majority
can
the
the
387. Such behavior
offend
in the
reasons,
partly
if
at least
place
the masturbation takes
however,
opinion
open
the
leaves
explanation,
nude. Without
(one inconsistent with its
the
possibility
holding)
the
“the
may
fully
clothed masturbation where
also forbid
“through
form” of
can
discerned
his
penis
outline
at 571 n. 2 & 575 n.
5,
n. 2
Ante
clothing.”
Under bench at the beach could masturbate under boardwalk doing a what he is way brazenly trench coat—in reveals every passerby—and expose “person” or display thong § under Code But a wearing 18.2-387. a swimmer See, Hart e.g., v. Common- suit would. bathing arguably wealth, (1994) (exposure S.E.2d area,” wearing “pubic “G-string” “buttocks” and while a statute).11 suit, swim indecent In the first violates scratching ivy.” finding patch “poison to be a In defendant "predator,” rejected suggestions. sexual the trial court doubt such no appeal, arguing that "the 11. The defendant in Hart raised two issues on (1) ‘an evidence to show that his behavior constituted insufficient example, activity the man sexual all. In displays obvious to second, displays activity any the swimmer no sexual swimmer, masturbator, Yet a greater nature. not the has violating risk of element of 18.2- display-or-expose 387.12 is
Equally incongruent
that the children in our
actually
case
was,
masturbating.
all,
saw
He
after
standing
in front of
right
them. His obscene
was considerably
more
requires.
communicative than the statute
exist-
Under
ing precedent,
public
indecent
can occur
place
no
even if
one in
long
fact observes it—so
as it could have
See Wicks v.
been observed
looking.
had someone been
Charlottesville,
(1974)
215 Va.
that, if
seen,
is
(noting
exposure likely could be
it
irrele-
vant
actually
by
person
“whether
seen
several”
single
because
still “is an act of
‘gross
open indecency,
” (citation
Siquina v.
injurious
omitted));
morals’
694, 697-99,
28 Va.App.
352-
that,
(holding
statute,
under the
liberties
*15
an object
actually
“whether
is
seen
its
by
intended audience is
person,
of his
or the
thereof' and
that his
78,
behavior was obscene." Id. at
leads inter- regulation to the of sexual respect intentions with hand, it could On the one course and masturbation. that, relentlessly prohibited the framers so inferred because necessarily follows that public nudity, as little as even re- and masturbation would have been public intercourse obviously even more sub- garded as even more odious and hand, other it could be to state ject regulation. On *16 that, public understood that although the framers inferred understood regulated, they apparently could nudity be in intercourse or masturbation nudity engaged while (or long as permissible could not that both were on). Frankly, the evi- given their clothes kept offenders public mor- that we have described about antebellum dence 584
als, statutes, law, and case we find the latter possibility remote, to say the least. Ciancanelli, 1, (Or.Ct. State v. Or.App. 451, 181 45 P.3d (en App.) banc), petition for allowed, 90, review 335 Or. P.3d 821
It follows that open and notorious
in public
masturbation
place,
all,
a manner obvious to
falls
within
squarely
reach of
the common law. See generally Miller v. California, 413 U.S.
15, 25,
2607, 2615,
(1973)
93 S.Ct.
(2004) added); (emphasis Zhou, Zhou v. (observing that “basic canons of statutory construction” exclude interpretations rendering stat utory language “superfluous”). then, The question, is whether it is possible to do so in this I case. think so.
The majority opinion interprets “exposure” word nudity mean and “display” to mean nothing more. The dis- junctive thus becomes a conjunctive. redundant Virginia No case has interpreted ever this statute in this manner. And for good reason: Unless the word “display” superfluous, is it must mean something different from “exposure.” If “exposure” can
585 necessarily “display” nudity, of then only degree mean some Among it does. different. And so something means where, ordinary (particularly “display” speech definitions verb) is the rather than a here, as a noun as it is used American something.” or manifestation “demonstration coll, ed.1985).13 (2d just that It is 407 Heritage Dictionary in other when used “display” to the word give definition we Virginia of the Code. provisions “display” § criminalizes the example, For Code 18.2-53.1 effectively can felony. A robber committing firearm a a while completely though in his even “display” pocket a firearm 64, v. 3 hidden from view. Cromite “not 67, 38, “display” 40 The word means to the exhibiting view or only spreading the notion of before any of a victim’s also that is manifested sight, but which ” Smallwood, 164, 346 A.2d v. (quoting senses.... Id. State (Del.1975)). to a manifested weapon may “Thus a ability to not see it” because the though may victim even he itself is a manifesta- weapon’s presence discern the otherwise effective, putting as a statutory purpose, for the “just tion State, Id.; A.2d see Deshields v. gun plain view.” also (Del.1998) weapon 502, “displays” (finding robber handling and then by pocket his hand in his putting 758, Butts, 432, 580 181 A.D.2d N.Y.S.2d weapon); People weap- (holding displays that robber (N.Y.App.Div.1992) if it jacket asking on victim by putting hand inside gun).14 if he had a would “make difference” Jaime, State v. 4 Conn.Cir. point 13. This demonstrates the irrelevance of 197, 474, (1967), Wymore, and State v. 98 Idaho Ct. 236 A.2d (1977), by majority. Ante at 560 P.2d cited indecency both cases make it unlawful S.E.2d at 168. The laws in goes person private parts. further "expose” or Neither "display” person private parts, as does of the or and criminalizes § 18.2-387. "absurd,” nothing at 600 S.E.2d at ante I see "anomalous” Assembly using expose” phrase in the the "so about the General § I understand how this procurement portion of Code 18.2-387. Nor do meaning, leaving any phrase empties "display” of substantive the word legally even the statute. immaterial that it is in- persuasive, concluding finds none of this majority by has been foreclosed meaning “display” stead that the cases cited Virginia cases. The three prior Virginia however, word “dis- do not mention or discuss the majority, Wicks, See, e.g., as used in Code 18.2-387. Va. play” stating local ordinance (interpreting at 754 (emphasis indecently expose no shall himself’ “person *18 241, 241 added)); 194 72 S.E.2d Noblett v. Va. that alleging on an indictment (affirming a conviction himself); Va.App. 28 at 697- Siquina, the exposed 99, the liberties (interpreting at 352-53 508 S.E.2d statute, genital parts one’s sexual or exposing which forbids child). on of entirely meaning instead focus the They “expose.” law, inqui- stare decisis does not “foreclose Virginia
Under “raised, discussed, or decided.” ry” previously into an issue not Commonwealth, 262 Va. Auth. v. Chesapeake Hosp. Hall, 55, (2001); Finnerty v. Thornton see also 554 S.E.2d Inc., 639-40, 568, The Va.App. S.E.2d therefore, justified cannot as a neces- majority’s holding, precedent. of settled sary application so, majority’s singu- with the deeper problem I see a Even From a “expose.” the interpreting lar focus on cases word view, begs question. of the entire discussion point logical necessarily in- will genitals one’s Every visible concept, by former of one’s The display genitals. volve a (That’s Law Black’s definition, why the latter. subsumes “display.” Ante at to include Dictionary “exposure” defines 166.) the reverse: prove that does not at But Hence, a an necessarily exposure. includes every display not in his while handgun pocket display can still robber (Which Law Dictio- why Black’s sight. explains it to exposing This “exposure.”) to include “display” defines nary nowhere it And was majority’s reasoning. permeates sequitur non believe, Assembly I General just misunderstanding, this disjunctive “display using by conspicuously to avoid sought § 18.2-387. formulation in Code or exposure” curious contains a caveat. Finally, majority opinion display opinion’s ratio decidendi collapses together the words But in dicta synonyms. them as exact exposure, treating interpreta- its says it “need not” decide whether majority non-nudity in cases tion of 18.2-387 would criminalize could be discerned under- penis where the “outline” n. 2 & 575 n. Ante at 571 clothing. neath the defendant’s 2). at n. 2 n. 5 n. (cross-referencing & 167 Hart, attempts keep This caveat alive the remark legal signifi- at which found S.E.2d defendant’s penis cance in the fact that the “outline” clothing. underneath his could be discerned If majority ways. I do not think the can have both exposure, degree means means some nudity, keeps pants then a masturbator who on cannot be as a matter of much his penis convicted law—no matter how I clothing. distorts the outer contours of his thus do by my they understand how it can be said colleagues Ante at 571 n. point. “need not” decide this 600 S.E.2d at *19 165 n. 2. they already It seems to me did. believes, however, majority apparently interpreta-
The its tion of necessarily the statute would not foreclose a conviction in this if girls simply they case the two had said could discern penis clothing. the “outline” of the defendant’s underneath his so, If I any principled do not see basis to draw the line there. If applies the statute to a victim “outline” of the seeing the clothes, no penis through defendant’s should be less objectionable similarly that the victim sees the outline of the masturbating defendant’s hand his non-outlined The penis. in arguably visual assault the latter scenario is more obscene than in the former.
III. factfinder, Sitting judge the trial found the defendant’s masturbation to be an “obscene exposure” “person, or the thereof’ violation of “any appeal 18.2-387. The issue on is whether rational trier of fact” could have come to this conclusion. Seaton v. Com- monwealth, omitted).
(emphasis original question and citations sure, To be I can think of few more things answers itself. pedophile masturbating young obscene than a front being child as he tries to talk her into his next victim. I respectfully dissent. STYLES,
Douglas Jr. W.
CITY OF COLONIAL HEIGHTS.
Record No. 0803-03-2. Virginia, Appeals Court Richmond.
Aug.