STATE of Missouri, Respondent, v. Clarence K. BOUSE, Appellant.
No. WD 62344.
Missouri Court of Appeals, Western District.
Oct. 19, 2004.
Motion for Transfer Denied Nov. 23, 2004. Application for Transfer Denied Dec. 21, 2004.
In the present case, the trial court had substantial evidence to conclude that Officer Reeves was acting on a reasonable suspicion that Hampton had committed a traffic violation. Reeves first observed Hampton traveling at a rate of speed which appeared to be faster than the posted speed limit of 20 miles per hour. Although Reeves confirmed the validity of his observation with his radar equipment, the use of the radar equipment was not a necessary component of the initial stop. An underlying conviction for the traffic violation is not necessary to uphold the reasonable suspicion of the officer to initially stop the vehicle for a brief Terry stop; all that is necessary is that the officer had an articulable suspicion of the traffic violation. See State v. Slavin, 944 S.W.2d 314, 317 (Mo.App. W.D.1997) (“[a] police officer is authorized to stop a vehicle observed violating the traffic laws of the state“); State v. Bunts, 867 S.W.2d 277, 280 (Mo.App. S.D.1993) (traffic stop may be justified by observation of unusual conduct, such as an abrupt reduction of speed, which may not itself constitute a traffic violation).
Hampton questions the reliability of the radar unit used by Reeves and argues if the reliability of the unit was not sufficiently established, the trial court could not properly rely on Reeves’ testimony regarding the speed indicated by the radar unit. While Hampton is correct that the reliability of the unit is relevant to determine whether or not Hampton did in fact exceed the speed limit by ten miles per hour, our review does not concern whether Hampton was in fact speeding prior to the stop. Rather, our review concerns whether Reeves had reasonable suspicion to believe that Hampton was committing the crime of speeding prior to the stop. More precisely, our review asks whether sufficient evidence exists to support the trial court‘s decision that the stop was valid and the intoxication evidence was admissible. For the reasons detailed above, we find that the trial court had sufficient evidence to find that Reeves had reasonable suspicion to stop Hampton and, thus, that the trial court did not err in admitting the evidence of intoxication. The judgment is affirmed.
GARRISON, P.J., and PREWITT, J., concur.
Jeff A. Mittelhauser, Sedalia, MO, for respondent.
PAUL M. SPINDEN, Judge.
For his transmitting a series of six photographs of his penis via the Internet to a person whom he thought was less than 14 years of age, the circuit court entered judgment against Clarence K. Bouse convicting him of three counts of attempted sexual misconduct involving a child. Bouse appeals, asserting that the state did not present sufficient evidence. He contends that, as defined by
In early November 2001, in an attempt to identify and to locate people who would victimize children, Sheriff Steve Cox of Livingston County posed in an Internet
Bouse made plans with Carrie to meet so that they could engage in sex. He also e-mailed several pictures of unidentified couples engaging in sexual activity. Bouse and Carrie eventually made plans to meet at a motel on November 16, 2001, and on November 19, 2001. Bouse, however, never showed up at the motel on either of the planned dates.
The state charged Bouse with two counts of attempt to commit statutory rape in the first degree, two counts of attempt to commit statutory sodomy in the first degree, and three counts of attempt to commit sexual misconduct with a child. Bouse waived a jury trial. At the conclusion of the state‘s evidence, the circuit court granted Bouse‘s motion for judgment of acquittal on the attempted statutory rape and attempted statutory sodomy counts. The circuit court found Bouse guilty of three counts of attempted sexual misconduct with a child.
Bouse asserts that the evidence was insufficient to prove that he attempted to commit sexual misconduct with a child. We disagree.
A person commits the crime of sexual misconduct involving a child if he:
(1) Knowingly exposes [his] genitals to a child less than fourteen years of age in a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child less than fourteen years of age; [or]
(2) Knowingly exposes [his] genitals to a child less than fourteen years of age for the purpose of arousing or gratifying the sexual desire of any person, including the child[.]
The dictionary definition of “expose” is:
1 a: to lay open (as to attack, danger, trial, or test): make accessible to something that may prove detrimental: deprive of shelter, protection, or care (him to the weather) (troops needless-
ly) (a coast exposed to severe gales) b: to submit or subject to an action or influence (children to good books) (think ... they can arrest the fall of rain by exposing it to a boulder—J.G.Frazer) (a man to new impressions); specif: to subject (a sensitive photographic film, plate, or paper) to the action of radiant energy c: to abandon (an infant) esp. by leaving in the open: DESERT (the foundation of lying-in hospitals and orphanages ... kept the children alive, ... prevented them being exposed—J.H.Plumb) 2: to lay open to view: lay bare: make known: set forth: EXHIBIT, DISPLAY (exposing a sun-tanned back) (each had started exposing his views—F.M.Ford) (the new display object is to the package—Printers’ Ink): as a: to offer publicly for sale (all of which I shall for sale at public auction—Detroit Law Jour.)—sometimes used with to (the markets at which the corn, the cattle, the wool ... of the surrounding country were exposed to sale—T.B.Macaulay) b: to exhibit (a religious relic or the Host) for public veneration c: to reveal the face of (a playing card)—used chiefly in games in which such exposure is contrary to the rules d: to conduct (oneself) as an exhibitionist 3 a: to disclose or reveal the faults, frailties, or unsoundness of: bring to light (as something criminal or shameful): UNMASK took a leading part in exposing the pretensions of this quack) (has behaved like a cad and ought to be exposed—Kingsley Martin) (a voting fraud) (the abuses of the day—John Mason Brown) b obs: RIDICULE, SATIRIZE syn see SHOW.
WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 802 (1993). Under the dictionary definition, “exhibit” and “display” are synonyms of “expose.”
Particularly noteworthy is the dictionary‘s not qualifying its definition of “expose” with any means or mode. In the plain and ordinary sense of “expose” under the dictionary‘s definition, one‘s exposing his or her body—whether a “sun-tanned back” or genitals—would still be an exposure whether it was done in public, in private, in a park, in one‘s house, by means of a web camera on the Internet, or by means of photographs via the Internet. Hence, Bouse‘s sending a picture of his bared penis to Carrie was an exposure of his genitals—albeit by photograph rather than in person—in the plain and ordinary meaning of “expose.”
The General Assembly also did not seek to qualify its definition of expose with any means or mode, such as requiring that the exposure occur in the victim‘s presence. Had the General Assembly wanted to make “presence” a requirement for sexual misconduct involving a child, it certainly3
Furthermore, a sister jurisdiction, the Court of Appeals of Virginia, ruled in a case “on all fours,” that the plain and ordinary meaning of “expose” included an exposure on the Internet as well as in a public park. Brooker v. Commonwealth, 41 Va.App. 609, 587 S.E.2d 732 (2003). The Brooker court equated the electronic transmission of images via a web camera with a public place or actual presence although Virginia common law required that the exposure be committed in a public place or in the victim‘s actual presence. Id. at 736.5
Bouse admitted that he knowingly and intentionally sent photographs of his penis to Carrie, whom he thought was less than 14 years old, knowing that Carrie was likely to see them. He specifically directed his exposure to a child whom he thought was less than 14 years of age. This is an important distinction. Bouse did not expose his genitals in an explicit film or in a magazine clearly marked for adults only. He cannot, and does not, argue that he did not know that his penis may be viewed by a child less than 14 years of age. He specifically wanted to expose his penis by means of a photograph to Carrie whom he thought was less than 14 years of age.
Central to Judge Lowenstein‘s dissent is the rule of lenity. This, however, is not a proper case for employing the rule of lenity. This rule mandates that all ambiguity in a criminal statute be resolved in the defendant‘s favor. State v. Harper, 855 S.W.2d 474, 479 (Mo.App.1993). But, for it to apply, an ambiguity must be present.
We find no ambiguity in
Moreover, enhancing the plain and ordinary meaning of
The dissents’ narrow interpretations of “expose” would thwart the General Assembly‘s purpose of affording heightened protection of children under the age of 14. Under the dissents’ understanding, a person could expose his genitals to a child under the age of 14 so long as he is ingenious in his methodology, such as sending photographs.
This is not only crabbed statutory interpretation; it is also contrary to common sense. The General Assembly intended for
As emphasized by Judge Lowenstein‘s dissent, “expose” under common law meant that the exposure had to occur in a public place or in the victim‘s actual presence. We recognize the “familiar rule of construction that where a statute uses words which have a definite and well known meaning at common law it will be presumed that the terms are used in the sense in which they were understood at common law, and they will be so construed unless it clearly appears that it was not so intended.” State v. Duggar, 806 S.W.2d 407, 408 (Mo. banc 1991) (quoting Maltz v. Jackoway-Katz Cap Company, 336 Mo. 1000, 82 S.W.2d 909, 912 (1934)).
Although public exposure persists as an element of indecent exposure in some jurisdictions such as Virginia, Missouri has dropped this element from its statutory definitions in 1979. Missouri simply requires that the exposure occur in a manner that would cause a reasonable adult to believe that the conduct would likely cause affront or alarm or that the exposure be for the purpose of arousing or gratifying a person‘s sexual desire. C.E. TORCIA, WHARTON‘S CRIMINAL LAW § 308
Before 1979, Missouri was among those that “adopted the common-law requirements that for conviction of indecent exposure, there must be shown a willful and intentional exposure of the private parts of the body, in a public place, and in the presence of others.” A.G. Barnett, Annotation, Criminal Offense Predicated Upon Indecent Exposure, 94 A.L.R.2d 1353, 1359 (1964). The General Assembly left no room for doubting that it intended this when it enacted its statutes. From 1825 through 1978, the law provided that “every person, married or unmarried, who shall be guilty of open, gross lewdness or lascivious behavior or of any open and notorious act of public indecency, grossly scandalous” would be adjudged guilty of a misdemeanor. State v. Parker, 738 S.W.2d 566, 569 (Mo.App.1987) (emphasis added) (for historical references, see, e.g., § 563.150, RSMo 1969; § 563.150, RSMo 1959; § 563.150, RSMo 1949; § 4653, RSMo 1939; § 4265 RSMo 1929; § 3515, RSMo 1919; § 4729, RSMo 1909; § 2175, RSMo 1899; § 3798, RSMo 1889; § 1541, RSMo 1879; Chp. 206, § 8, RSMo 1865; Chp. 50, art. VIII, § 8, RSMo 1855; Chp. 47, art. VIII, § 8, RSMo 1845; Art. VIII, § 8, RSMo 1835).
Missouri courts interpreted “open” and “gross,” as related to lewd acts, and “open and notorious,” as related to public indecency, as requiring presence. See State v. Metje, 269 S.W.2d 128, 130 (Mo.App.1954) (“To constitute an offense under [§ 563.150] the conduct complained of must have occurred in a public place or have been committed in the actual presence of another person.“); State v. Granger, 199 S.W.2d 896, 899 (Mo.App.1947) (“A single act of lewdness or indecent behavior is sufficient ... provided it be ‘open and notorious,’ that is, committed in the presence of another person or in a public place.“); State v. Parker, 233 Mo.App. 1037, 128 S.W.2d 288, 289-90 (1939) (“The word open as used in the statute means public, not secret. The behavior that constitutes the offense must be open and notorious, that is, committed in a public place, or committed in the actual presence of, or in such close proximity to, another person so that it may be known what is being done by the use of ordinary senses.“); State v. Pedigo, 190 Mo.App. 293, 176 S.W. 556, 558 (1915) (“[A]ct of lewdness ... is open and gross ... if committed in the actual presence of, and such close proximity to, other persons that they knew of the same being done by the use of their ordinary senses of hearing and seeing[.]“).
It is axiomatic that the General Assembly, which specifically adopted the common law, retains the authority to abrogate it in its statutes. The legislature has unequivocally said:
[N]o act of the general assembly or law of this state shall be ... limited in its scope or effect by the courts of this state, for the reason that it is in derogation of, or in conflict with, the common law ...; but all acts of the general assembly, or laws, shall be liberally construed, so as to effectuate the true intent and meaning thereof.
The General Assembly abrogated the common law when, on January 1, 1979, it repealed § 563.150 and created the offense of “indecent exposure.” See L.1977 S.B. 60. It altered the common law crime of indecent exposure by declaring that a person committed it when he “knowingly expose[d] his genitals under circumstances in which he knows that his conduct is likely
After the General Assembly redefined the common law offense of “indecent exposure” by eliminating all references to “open,” “gross,” and “notorious,” it did not reintroduce them when it created the new offense, “sexual misconduct in the second degree,” or when it established the offense of “sexual misconduct involving a child.” Indeed, throughout all these changes, none of the language that had been the basis for over a century for the court‘s interpreting the statutes as requiring an exposure be in a public place or the victim‘s actual presence, was reintroduced.
When the General Assembly alters a statute, we are obligated to deem the alteration as having an effect. We are not to conclude that the legislature‘s deleting significant terms from its statutes is meaningless. State v. Sweeney, 701 S.W.2d 420, 423 (Mo. banc 1985); In the Interest of B.C.H., 718 S.W.2d 158, 165 (Mo.App.1986) (Manford, J., concurring). Moreover, unless it is shown otherwise—and it is not in this case—we are constrained to presume that the General Assembly was aware of the manner in which we had interpreted “open,” “gross,” and “notorious” and that it intended to accomplish some result by deleting these words. The applicable rule of construction says:
In construing statutes to ascertain legislative intent it is presumed the legislature is aware of the interpretation of existing statutes placed upon them by the state appellate courts, and that in amending a statute or in enacting a new one of the same subject, it is ordinarily the intent of the legislature to effect some change in the existing law. If this were not so the legislature would be accomplishing nothing, and legislatures are not presumed to have intended a useless act.
Kilbane v. Director of Department of Revenue, 544 S.W.2d 9, 11 (Mo. banc 1976).
If the legislature did not intend to abandon the common law‘s requirements that the exposure be public or in the victim‘s actual presence, what did it intend to accomplish by deleting “open,” “gross,” and “notorious“? Perhaps the legislature was attempting to clarify the law, but this conclusion does not make much sense. The legislature can hardly be deemed as attempting to clarify its intention to retain the common law‘s requirements by deleting those words that had been interpreted as requiring precisely that which the common law required.
(1) Exposes his genitals under circumstances in which he knows that his conduct is likely to cause affront or alarm; or
(2) Has sexual contact in the presence of a third person or persons under circumstances in which he knows that such contact is likely to cause affront or alarm.
We acknowledge that in dictum in State v. Parker, 738 S.W.2d 566, 569 (Mo.App.1987) (“An act of exposure is not likely to affront or alarm decent sensibilities or cause alarm if it is conducted in seclusion away from all possibility of detection.“), this court‘s Eastern District suggested that “affront or alarm” implies physical presence. In its dictum, the Parker court reasoned that the statutory changes in 1979 made no difference because, for “logical reason[s],” affront or alarm presupposes that another person is physically present. Id. This, however, necessarily makes “presence,” as used in § 566.093, mere surplusage.
The logic of Parker eludes us, but, of much more significance, it violates a cardinal rule of statutory construction by presuming that any of a statute‘s words are mere surplusage. To the contrary, we must presume that each word of a statute has separate and individual meanings. State v. Belton, 108 S.W.3d 171, 175 (Mo. App.2003). Moreover, sound reasoning draws us to a conclusion opposite that of Parker. Affront or alarm exists because an affronting or alarming act of exposure is seen, Parker, 738 S.W.2d at 569-70, and, as Bouse‘s case demonstrates, an act of exposure can be seen without physical presence. Indeed, there is no dispute here about the affront and alarm element despite Carrie‘s seeing the genitalia on a computer screen rather than in person.
Because the General Assembly used both “in the presence” and “affront or alarm” in
The state conceded at oral argument that it could have prosecuted Bouse for attempting to furnish pornographic materials to a minor under
For all the foregoing reasons, we affirm the judgment of conviction. Bouse took a substantial step towards the commission of the offense of sexual misconduct involving a child. He would have succeeded in all respects in committing that offense but for Carrie‘s being a police officer over 14 years of age. His offense of attempted sexual misconduct involving a child was complete when he set the stage for “Carrie” to open his e-mail attachments containing photographs of his penis.
EDWIN H. SMITH, Chief Judge, ROBERT G. ULRICH, Judge, PATRICIA A. BRECKENRIDGE, Judge, JAMES M. SMART, JR., Judge, and LISA WHITE HARDWICK, Judge, concur.
HAROLD L. LOWENSTEIN, Judge, dissents in separate opinion in which VICTOR C. HOWARD, Judge, and THOMAS H. NEWTON, Judge, concur.
JOSEPH M. ELLIS, Judge, dissents in separate opinion in which RONALD R. HOLLIGER, Judge, concur.
JOSEPH M. ELLIS, Judge, dissenting.
I respectfully dissent. I write separately to point out the obvious. Mr. Bouse did not expose “his genitals.” Rather, he displayed a photographic image of his genitals. Notwithstanding the majority‘s ardent desire to punish Mr. Bouse‘s reprehensible conduct, common sense, a commodity seemingly in short supply sometimes, compels the conclusion that displaying a photographic image does not constitute “expos[ing] the person‘s genitals” in the lay person‘s everyday usage and understanding of the concept.
For this reason, I would reverse the trial court‘s judgment.
HAROLD L. LOWENSTEIN, Judge, dissenting.
I respectfully file this dissent. A person commits the crime of sexual misconduct involving a child if the person:
(1) Knowingly exposes the person‘s genitals to a child less than fourteen years of age in a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child less than fourteen years of age;
(2) Knowingly exposes the person‘s genitals to a child less than fourteen years of age for the purpose of arousing or gratifying the sexual desire of any person, including the child[.]
§ 566.083.
Bouse argues that he could not have committed the offense, since he did not expose his genitals as contemplated by the statute. Bouse states that sexual misconduct involving a child is essentially the crime of indecent exposure modified to apply when the exposure is to a child. He further states that indecent exposure traditionally meant actual in-person exhibition of a person‘s genitals. Therefore by analogy, Bouse claims that he cannot be convicted of the charged crime without actually exhibiting his genitals (as opposed to a
This court should resist the temptation to read the words, “or photographs of the person‘s genitals” into the two subsections of Section 566.083. Only by reading those words into the statutory language can it be clearly determined that the legislature intended to make a felony of the conduct charged here. However, “common sense and evident statutory purpose” cannot be used to create, and then to “dispel any remaining ambiguity” in this criminal statute. The defendant here took pictures of his genitals and transmitted the pictures via the Internet. Section 566.083 does not criminalize this conduct. The most that can be said of this statute is that an ambiguity exists as to whether the conduct here fit the words of the law, and if that is the case, then according to law, all doubts must be resolved in favor of the defendant.
Under the rule of lenity, a criminal statute is to be strictly construed against the government and liberally in favor of the defendant. Goings v. Mo. Dep‘t of Corrs., 6 S.W.3d 906, 908 (Mo. banc 1999). “Any doubt as to whether the act charged and proved is embraced within the prohibition must be resolved in favor of the accused.” State v. Jones, 899 S.W.2d 126, 127 (Mo. App.1995). “No person may be made subject to a criminal statute by guesswork or mere implication and a criminal statute may not be held to include offenses or persons other than those clearly described and provided for within both the spirit and the letter of the statute.” State v. Fredrickson, 689 S.W.2d 58, 61 (Mo.App.1984).
The State points to several definitions of the word “expose” to establish that there is no ambiguity and that Bouse‘s conduct clearly falls within the prohibition of the statute. Some of the definitions offered by the State include: “to make bare; to uncover; to disclose; to set out to view; to lay open to examination.” However, these definitions have been taken out of context. The dictionary used by the State indicates that these definitions refer to exposing a fraud, opinions, or principles, WEBSTER‘S NEW TWENTIETH CENTURY DICTIONARY UNABRIDGED 647 (2d. ed.1970), and not to a physical object such as a person‘s genitals. A different edition of Merriam-Webster‘s dictionary separately defines “indecent exposure” as the “intentional exposure of part of one‘s body (as the genitals) in a place where such exposure is likely to be an offense against the generally accepted standards of decency in a community.” WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 1147 (1993). Furthermore, another dictionary defines “expose” as “to exhibit one‘s body, esp. one‘s genitals, publicly in an immodest or exhibitionistic manner,” RANDOM HOUSE WEBSTER‘S UNABRIDGED DICTIONARY 682 (2d. ed.2001) (emphasis added), which undermines the State‘s position that physical presence is not required to indecently expose oneself. Therefore, resorting to the dictionary in this case provides little support for the State‘s position.
Another rule of statutory construction is applicable in this case. Where a statute uses words which have a definite and well known meaning at common law, there is a presumption that such words are used in the sense in which they were understood at common law, unless it clearly appears that the legislature did not intend for such a construction to apply. State v. Duggar, 806 S.W.2d 407, 408 (Mo. banc 1991). The word “expose,” in the context of the common law offense of indecent exposure, required a “willful and intentional exposure
In Missouri, earlier statutes prohibiting indecent exposure, seemingly consistent with the common law, required actual perception of the exposure or the exposure be committed in public whereby others could witness the act. State v. Parker, 738 S.W.2d 566, 569 (Mo.App.1987). The State has conceded that the crime for which Bouse was convicted is essentially an offense of indecent exposure to a child. The fact that indecent exposure at common law had a well-defined meaning weighs against the State‘s position, since this court must presume that the legislature enacted this statute with the common law meaning of indecent exposure in mind.2
The State, however, attempts to buttress its position by citing a different statute that punishes sexual misconduct in the second degree. That statute states:
A person commits the crime of sexual misconduct in the second degree if he:
(1) Exposes his genitals under circumstances in which he knows that his conduct is likely to cause affront or alarm; or
(2) Has sexual contact in the presence of a third person or persons under circumstances in which he knows that such conduct is likely to cause affront or alarm.
However, the “affront or alarm” language implies the presence of another person. Parker, 738 S.W.2d at 569 (“An act of exposure is not likely to affront decent sensibilities or cause alarm if it is conducted in seclusion away from all possibility of detection.“). It would be surplusage to use “in the presence” with “affront or alarm,” since the latter language presupposes the presence of another person. Therefore, the fact that the legislature excluded a presence requirement in the first subsection of Section 566.093 does not necessarily indicate that presence not be required in that statute or in the statute for which Bouse was convicted.
Although Bouse‘s conduct was reprehensible, this court cannot say that his actions fall within the ambit of
Virginia is the only jurisdiction to have previously decided a similar issue. In Brooker v. Commonwealth, 41 Va.App. 609, 587 S.E.2d 732 (2003), the appellant‘s conviction for attempting to take indecent liberties with a child4 was affirmed where the appellant “exposed” himself over the Internet to an undercover law enforcement official posing as a twelve-year-old girl.5 The Virginia court‘s decision was based on the definition of “expose” found in a dictionary. Id. at 735-36. However, this court is not convinced that resorting to the dictionary definition of expose would necessarily support the State‘s position. See supra. Therefore, this court refuses to follow the reasoning found in Brooker.
Although Bouse‘s conduct could be denounced as attempting to furnish pornography to a minor that does not mean that his conduct was sufficient to establish attempt liability for sexual misconduct involving a child as set out in
Despite the assertions that a failure to agree with the majority opinion somehow reflects a lack of ability to properly use the dictionary, an inability to properly construe or divine the intent of the legislature, and an inability to properly follow an
STATE of Missouri, Respondent, v. Joseph M. COLLINS, Appellant.
No. 25951.
Missouri Court of Appeals, Southern District, Division Two.
Dec. 8, 2004.