State v. BryanState v. Bryan
- Reporters:
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- Before:
- Lockett
The opinion of the court was delivered by
Lockett, J.:Randy Bryan appeals his conviction for lewd and lascivious behavior. The Court of Appeals affirmed his conviction. This court granted Bryan’s petition for review.
FACTS
The facts are summarized from the Court of Appeals opinion:
“H.B. is the eldest daughter of defendant Bryan and was 13 years of age on the date of the offense charged. Her mother (Bryan’s wife) awoke in the early morning hours and heard H.B. coughing and crying; upon entering her daughter’s room, she found Biyan lying naked upon H.B’s bed, on top of the covers, facing H.B. with his left hand on his erect penis. Upon the mother’s entiy, Biyan rolled off the bed and tried to cover himself, explaining that he had gotten up early to take a shower and went into his daughter’s room because he heard her crying and had an erection because he needed to use the bathroom. At trial, he explained that he was naked because he had fallen asleep after having sexual intercourse with his wife.
“The investigating officer testified that H.B. told him she frequently had ‘night terrors’ in which she dreamed someone was chasing her or she was being hurt. H.B. remembered having a bad dream on the night in question and remembered only that she felt like she was being shaken. When asked at trial what she remembered from that incident, H.B. responded, ‘All I know is that I was dreaming.’ She testified that although her mother had told her that Bryan was in her room, she did not recall seeing him.” State v Bryan, 33 Kan. App. 2d 382, 383, 102 P.3d 496 (2004).
A jury convicted Bryan of lewd and lascivious behavior. Biyan appealed. The Court of Appeals affirmed Bryan’s conviction. This court granted Bryan’s petition for review on the limited issue of whether
Bryan argued to the Court of Appeals and this court that he cannot be convicted of lewd and lascivious behavior pursuant to
Whether
“Lewd and lascivious behavior is:
“(2) publicly exposing a sex organ or exposing a sex organ in the presence of a person who is not the spouse of the offender and who has not consented thereto, with intent to arouse or gratify the sexual desires of the offender or another.”
The fundamental rule of statutory construction is to ascertain the legislature’s intent. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. When a statute is plain and unambiguous, iiie court must give effect to the legislature’s intent as expressed rather tiran determining what the law should or should not be. State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005).
The prohibited act proscribed by
The word “presence” has many meanings. The meanings relevant to the legislature’s use of the word in
“the fact or condition of being present: tire state of being in one place and not elsewhere: the condition of being within sight or call, at hand, or in a place thought of: the fact of being in company, attendance, or association: the state of being in front of or in the same place as someone or something: the part of space within one’s ken [range of perception], call, or influence: the vicinity of or the area immediately near one: the place in front of or around a person.” Webster’s Third New International Dictionaiy 1793 (1993).
Black’s Law Dictionaiy 1221 (8th ed. 2004) imparts the concept of awareness to the term “presence,” defining the word as “[t]he state or fact of being in a particular place and time: [c]lose physical proximity coupled with awareness.”
Although Webster’s Third New International Dictionary does not specifically state that awareness is a component of the word “presence,” its definitions imply that an awareness is inherent in the definition. Each of these definitions involves a perception of something, e.g., space or surrounding area (in front of, in the same place, in the vicinity of, in the area immediately near), or other people (being in tire company of, in attendance with, or in association with). “Perception” is defined as “awareness of the elements of environment through physical sensation.” Webster’s Ninth New Collegiate Dictionary 872 (1991). Thus, the ordinary meaning of the word “presence” includes an awareness component.
However, the interpretation of the word “presence” to include an awareness component does not necessarily lead to the conclusion that
The final phrase in
When “presence” is linked to the specific intent element of the offense, the victim only has to be aware of the offender’s sex organ when the specific intent of the offender is to arouse or gratify the sexual desires of the victim. If the offender is arousing or gratifying his or her own sexual desires, then only the offender must be aware of the victim and his or her own act of exposing a sex organ. Similarly, if the offender intends to arouse or gratify the sexual desires of another person, that person must be aware of the offender’s exposed sex organ. Even though the term “presence” implies an awareness, the question is whose awareness is incorporated in
The distinction between an awareness by the offender and an awareness by tire victim is illustrated in Burks v. State, 766 So. 2d 468 (Fla. Dist. App. 2000), and Holley v. Com., 38 Va. App. 158, 562 S.E.2d 351 (2002). In Burks, the defendant was convicted of committing a lewd and lascivious act in the presence of a child. Burks lived on a remote, 5 acre tract of land situated on a gravel road in rural Florida. 766 So. 2d at 469. He was plagued by a hearing impairment and alcoholism. One afternoon while Burks was enjoying his outdoor Jacuzzi and a drink, he decided to get out of the tub to check his garden hose.
Two teen-aged girls riding all terrain vehicles on the gravel road observed Burks’ naked body as he walked around his yard. After verifying that Burks was naked, the girls informed their mother and her fiancé. At the fiancé’s instruction, the mother returned to Burks’ home with the younger girl to observe Burks’ nudity for herself. The mother’s fiancé then instructed the teen-aged girls to return and keep Burks outside while he contacted the authorities. The mother returned and confronted Burks, cussing at him and calling him names. Burks responded, “I’m sorry, ma’am, I didn’t realize anybody was out here.” 766 So. 2d at 469.
The opposite result was reached in Holley, where the defendant was convicted of indecent liberties with a child for displaying his genitals in the presence of children. Holley lived next door to a woman who operated a daycare center in her home. Two of the parents dropping children off at daycare observed Holley standing naked at his glass doors, waving his arms to get the children’s attention. The daycare provider also observed Holley standing naked at the glass doors with his hand on his penis while the children were in the yard playing. The daycare provider reported Holley to the police. A police officer conducting surveillance observed Holley naked at the glass doors, masturbating.
Although the children at the daycare center were 6 months to 14 months old, the Holley court upheld Holley’s conviction, concluding that Holley’s exposure “was in the presence of child[ren]’ because a ‘reasonable probability exist[ed] that [Holley] might be seen by [the children].’ ” 38 Va. App. at 165 (quoting Siquina v. Commonwealth, 28 Va. App. 694, 699, 508 S.E.2d 350 [1998]).
In reaching this conclusion, the
Holley
court did not analyze the defendant’s awareness of the child victims because the language in the statute at issue in
Holley
differs from
Because this issue is one of first impression in Kansas, decisions from other jurisdictions are helpful in analyzing the issue. The Court of Appeals noted that there was a split between the jurisdictions that had addressed similar issues. Minnesota and Virginia have concluded that a child is not required to perceive what is being exposed.
State v. Stevenson,
656 N.W.2d 235, 239 (Minn. 2003);
Siquina,
28 Va. App. at 698. Florida and Louisiana, on the
In reaching its decision in this case, the Court of Appeals relied on Siquina, 28 Va. App. 694. In Siquina, the defendant, who was visiting at the victim’s home, grabbed the victim when her mother was not looking and took the victim into the bathroom. Once inside the bathroom, Siquina kissed the 5-year-old victim with his tongue and then told her to turn around and bend over the toilet. Siquina dropped his pants and underwear to the floor. The victim saw Siquina’s underwear, but did not see his genitals. At that point, the victim’s mother pulled open the bathroom door and saw Siquina standing behind her daughter with an erection. Siquina was convicted of attempted rape and indecent liberties with a child for intentionally exposing his sexual or genital parts to a child with a lascivious intent. 28 Va. App. at 696-97.
On appeal, Siquina argued that he could not be convicted of exposing himself because the victim had not actually seen his penis. The Siquina court noted that the verb “expose” does not “require that someone actually perceive what is being displayed.” 28 Va. App. at 697. It concluded that whether an object is actually seen by the child victim is irrelevant to whether that object has been exposed. 28 Va. App. at 698.
Siquina supports the analysis that the word “expose” does not require actual perception. Nevertheless, Siquina is not directly on point because the Virginia statute did not use the word “presence”; therefore, the Siquina court was not required to analyze the term “presence” in reaching its decision.
While the
Siquina
court focused on the word “expose,” the
Stevenson
court focused on the word “presence.” After reviewing the wording of the Kansas statute, the Court of Appeals adopted the
Stevenson
court’s reasoning.
Bryan,
33 Kan. App. 2d at 389. In
Stevenson,
656 N.W.2d 235, the defendant was charged with fifth-degree criminal sexual conduct for masturbating in his truck while it was parked near a sidewalk at a public beach, facing a playground occupied by several children. Fifth-degree criminal sexual conduct
In reaching its conclusion in this case, the Court of Appeals declined to follow the contrary opinions from the Florida Supreme Court and the Louisiana Supreme Court. In
Werner,
609 So. 2d at 586, the Florida Supreme Court concluded that the complete definition of “presence” encompassed a sensory awareness by the child and a physical proximity. It determined there must be an awareness by the child. The
Werner
court did not require that the child understand or articulate what the offender was doing. Rather, the
Werner
court only required that the child “must see or sense that a lewd or lascivious act is taking place.” 609 So. 2d at 587. It is important to note that the Florida statute at issue in
Werner
did not incorporate tire specific intent element included in
In
Interiano,
868 So. 2d 9, the Louisiana Supreme Court also concluded that the child must see or sense “that a sexual act is taking place, even if the child is unable to articulate or even comprehend what the offender is doing.” Although the Louisiana statute at issue in
Interiano
included a specific intent element like
However, one of the Louisiana justices wrote a separate concurring opinion. The justice agreed with the outcome but disagreed
“nexus between the child’s presence and the defendant’s sexual gratification, i.e., the knowing commission of a sexual act in which the presence of a child is either an active or passive stimulus for the adult’s sexual activity and a component of his or her sexual gratification, without regard to whether the child sees or senses that a sexual act is taking place.” 868 So. 2d at 19.
Thus, the concurring opinion in
Interiano
provides support for the analysis of
“[T]he majority’s interpretation decriminalizes conduct that heretofore was prohibited by the statute, e.g. a defendant masturbating while standing over a sleeping child in her crib; or a defendant who, under the pretext of playing a game with a child, induces the young child to wear a blindfold and then proceeds to masturbate, utilizing the child as a sexual stimulus but not touching the child. In both scenarios, the children are completely unaware that they have become an integral component in a sexual scenario staged by the defendant with the intention of gratifying his own sexual desires.”
In addition to cases from other jurisdictions, the Court of Appeals considered the ordinary meanings of the words “expose” and “presence,” the history and common-law origin of the crime, the legislative intent as noted by the legislative history, and the effect of Bryan’s interpretation. 33 Kan. App. 2d at 385-87.
The Court of Appeals acknowledged that the legislative history, which indicates that the most recent amendment was “ ‘designed to protect our children against those individuals who would sexually
assault
them,’ ” supports the conclusion that the legislature intended for children to be aware of the misconduct. (Emphasis added.) 33 Kan. App. 2d at 386. Assault, as a term of art, includes an element of awareness because it requires reasonable apprehen
The Court of Appeals also relied on the effect of Bryan’s suggested interpretation, concluding that requiring a child to actually perceive the offender’s act would nullify die legislative distinction between lewd and lascivious behavior and indecent liberties with a child. The Court of Appeals’ reliance on this analysis is misplaced. Lewd and lascivious behavior applies to all ages of victims, not just children. The indecent liberties with a child statute only applies to children who are 14 or 15 years old.
Although the cases from other jurisdictions offer guidance for this court’s analysis, this court is required to interpret the language used by the Kansas Legislature in
Applying the elements of
The question of Bryan’s intent was a factual determination for the jury to decide. Once the jury has decided, an appellate court does not determine whether the evidence is incompatible with any reasonable hypothesis except guilt. Regardless of whether the evidence supports another theory of the events, an appellate court’s function is to determine whether there is a basis in the evidence to support the jury’s guilty verdict. State v. Boone, 277 Kan. 208, 217-18, 83 P.3d 195 (2004).
The jury found Bryan guilty of lewd and lascivious behavior, indicating its finding that he exposed himself in the presence of a child with the intent to arouse or gratify his sexual desires. There is a basis in the evidence to support the jury’s verdict. Accordingly,
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Lockett, J., Retired, assigned.