IN THE SUPREME COURT OF IOWA
No. 07–0296
Filed December 19, 2008
STATE OF IOWA,
Appellee,
vs.
TROY HARLEY JORGENSEN,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Cerro Gordo County,
Carlynn D. Grupp, Judge.
Defendant appeals his conviction for indecent exposure.
DECISION OF COURT OF APPEALS AND DISTRICT COURT
JUDGMENT AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant
Attorney General, Paul L. Martin, County Attorney, and Carlyle D. Dalen
and Steven D. Tynan, Assistant County Attorneys, for appellee.
2
TERNUS, Chief Justice.
The district court convicted the appellant, Troy Jorgensen, of
indecent exposure after store employees, through a closed-circuit video
system, observed him follow an unidentified woman through the store
while repeatedly exposing his penis and masturbating. On appeal, the
court of appeals rejected Jorgensen’s contention there was insufficient
evidence to support his conviction because there was no evidence that he
knew he was being watched on a closed-circuit video system or that he
knew or should have known the employees would be offended by his
conduct. We conclude there is sufficient evidence to support the
elements of the offense of indecent exposure, and therefore, we affirm the
decisions of the district court and court of appeals.
I. Facts and Prior Proceedings.
On June 2, 2006, an employee, working in the loss prevention
department at the Shopko in Mason City, Iowa, was watching activity in
the store on a closed-circuit video system. She noticed a man, later
identified as Troy Jorgensen, walking through the store fondling himself
over his clothes. As the employee continued to watch, she saw the man
expose his penis several times and masturbate. The employee contacted
two fellow employees for assistance. The three employees observed
Jorgensen follow a woman through the store while repeatedly exposing
his penis and masturbating. The woman may have seen Jorgensen’s
penis, but she could not be located later and was never identified.
While one store employee contacted the police, two of the
employees left the video room to locate Jorgensen. When Jorgensen saw
the two employees approach, he stopped fondling himself and attempted
to exit the store. He was, however, detained by an off-duty officer.
3
Upon questioning, Jorgensen claimed he was wearing shorts that
were too small for him and that sometimes the fly would open and
expose his penis. Jorgensen was arrested for indecent exposure.
None of the three store employees who observed Jorgensen’s
behavior via the closed-circuit video system were married to him. All
three stated they were offended by his conduct.
On June 22, 2006, the State filed a trial information charging
Jorgensen with indecent exposure (second offense) in violation of Iowa
Code section 709.9 (2005). Thereafter, Jorgensen entered a plea of not
guilty.
Jorgensen subsequently filed a motion to adjudicate law points.
He argued he did not commit indecent exposure because there was no
evidence to support a finding that he knew the store employees might
have viewed him through a closed-circuit video system. Jorgensen also
asserted there was no evidence he purposefully exposed himself to the
Shopko employees knowing, or under circumstances where he
reasonably should have known, that the act was offensive to the
employees. Therefore, Jorgensen claimed, he could not be convicted of
indecent exposure.
A hearing on the motion was held. The court noted the crime of
indecent exposure contains four distinct elements. The first element
requires either the exposure of the genitals and pubes to someone other
than the actor’s spouse or that the actor committed a sex act in the
presence or view of a third person. The court found the State could not
prove indecent exposure by commission of a sex act under the facts
alleged. It did, however, find the facts sufficient for the State to proceed
under the first alternative: exposure of the genitals and pubes to
someone other than the actor’s spouse. The court further concluded
4
there was sufficient evidence of the other three elements of indecent
exposure.1
Jorgensen waived his right to a jury trial and proceeded to a bench
trial on a stipulated record that included the minutes of testimony and
the amended trial information.2 On December 27, 2006, the district
court issued its ruling, finding the defendant guilty of indecent exposure.
Jorgensen filed a motion for a new trial, asserting the district court
erred in allowing evidence the employees saw him expose himself
through store security cameras. The court had considered this evidence
because it found a reasonable shopper would believe the store would
monitor activities of patrons and/or employees through closed-circuit
video systems. Jorgensen contended he could not have reasonably
known store personnel would see his actions and would be offended by
them. The defendant’s motion was overruled, and the district court
sentenced Jorgensen to a suspended one-year sentence and placed him
on probation.
In his appeal, Jorgensen maintained the State produced
insufficient evidence of indecent exposure. The court of appeals
disagreed and affirmed the defendant’s conviction. We granted further
review and now affirm the decision of the court of appeals and the
judgment of the district court.
II. Scope of Review.
Sufficiency-of-the-evidence challenges are reviewed for correction
of errors at law. State v. Hansen, 750 N.W.2d 111, 112 (Iowa 2008).
1Thecourt also rejected the defendant’s argument the statute was void for
vagueness. This conclusion has not been challenged on appeal.
2Thetrial information was amended to delete any reference to a prior indecent
exposure conviction.
5
“The district court's findings of guilt are binding on appeal if supported
by substantial evidence.” Id. Evidence is substantial if it would convince
a rational trier of fact the defendant is guilty beyond a reasonable doubt.
State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). “To the extent the
issue presents a question of statutory interpretation, our review is for
correction of errors at law.” State v. Garcia, 756 N.W.2d 216, 219 (Iowa
2008).
III. Merits.
The issue before us is whether there was sufficient evidence to
convict Jorgensen of indecent exposure. Indecent exposure is defined in
Iowa Code section 709.9. In pertinent part it states:
A person who exposes the person’s genitals or pubes
to another not the person’s spouse . . . commits a serious
misdemeanor, if:
1. The person does so to arouse or satisfy the sexual
desires of either party; and
2. The person knows or reasonably should know that
the act is offensive to the viewer.
Iowa Code § 709.9.
We have previously broken down the crime of indecent exposure
into four elements:
“1. The exposure of genitals or pubes to someone
other than a spouse . . .;
2. That the act is done to arouse the sexual desires of
either party;
3. The viewer was offended by the conduct; and
4. The actor knew, or under the circumstances should
have known, the victim would be offended.”
State v. Isaac, 756 N.W.2d 817, 819 (Iowa 2008) (quoting State v. Adams,
436 N.W.2d 49, 50 (Iowa 1989)).
6
Jorgensen asserts there was insufficient evidence he was aware he
was being watched by the store employees or that he would have reason
to know his conduct would be offensive to those employees.3 According
to Jorgensen, “[n]owhere in the minutes of testimony does it indicate that
the security system cameras were visible to store patrons or that there
were posted signs warning store patrons that they may be watched by
security cameras.” He further claims he did not expose himself to the
employees with the specific intent to arouse his or their sexual desires,
insomuch as he was unaware of their presence via the closed-circuit
video system.
It is undisputed the State lacked sufficient evidence regarding the
defendant’s exposure of his penis to the unidentified woman, the
presumed target of his actions. The question raised by this case is
whether the statute requires knowledge by the actor of the identity of his
actual victim; or, stated somewhat differently, whether the defendant can
be found guilty of exposing himself to an audience of whom he was not
specifically aware. This question has not been previously addressed by
this court.
Our goal in interpreting criminal statutes “ ‘is to ascertain
legislative intent in order, if possible, to give it effect.’ ” State v. Finders,
3The appellant does not challenge whether observation via a closed-circuit video
system itself constitutes exposure for purposes of the statute, only that there was
insufficient evidence he was aware he was being observed via video camera. Cf. State v.
Bouse, 150 S.W.3d 326, 331 (Mo. Ct. App. 2004) (holding Missouri statute defining
sexual misconduct involving a child did not limit the means or mode of exposure and
concluding “expose” included an exposure on the Internet as well as in a public park),
with Swire v. State, 997 S.W.2d 370, 373–74 (Tex. Ct. App. 1999) (Burgess, J.,
dissenting) (asserting under Texas statute, “indecent exposure requires that a
defendant actually expose himself to another individual” and therefore concluding there
was insufficient evidence of indecent exposure because the defendant was unaware of
the video camera recording his actions, although noting exposure to a known video
camera would be a different question).
7
743 N.W.2d 546, 548 (Iowa 2008) (quoting State v. Conley, 222 N.W.2d
501, 502 (Iowa 1974)). “ ‘We consider the object sought to be
accomplished and the evil sought to be remedied, and seek a reasonable
interpretation that will best effect the legislative purpose and avoid
absurd results.’ ” Id. (quoting State v. Byers, 456 N.W.2d 917, 919 (Iowa
1990)). “ ‘When a statute’s language is clear, we look no further for
meaning than its express terms.’ ” State v. Kamber, 737 N.W.2d 297,
298–99 (Iowa 2007) (quoting State v. Beach, 630 N.W.2d 598, 600 (Iowa
2001)).
Although the statute does not define the term “expose,” we have
held that indecent exposure is “ ‘essentially a visual assault crime.’ ”
State v. Bauer, 337 N.W.2d 209, 211 (Iowa 1983) (quoting Kermit L.
Dunahoo, The New Iowa Criminal Code: Part II, 29 Drake L. Rev. 491,
541 (1979–80)); accord Isaac, 756 N.W.2d at 819. This interpretation
corresponds with the dictionary definition of “expose,” which means “to
lay open to view . . . EXHIBIT, DISPLAY.” Webster’s Third New
International Dictionary 802 (unabr. ed. 2002); accord Merriam-Webster’s
Collegiate Dictionary 409 (10th ed. 2002) (defining “expose” as “to cause
to be visible or open to view”); Black’s Law Dictionary 783 (8th ed. 2004)
(defining “indecent exposure” as “[a]n offensive display of one’s body in
public, esp. of the genitals”). See generally State v. Lane, 743 N.W.2d
178, 182 (Iowa 2007) (noting “ ‘we may refer to prior decisions of this
court and others, similar statutes, dictionary definitions, and common
usage’ to determine [the statute’s] meaning” (quoting State v. Shanahan,
712 N.W.2d 121, 142 (Iowa 2006))). Thus, the first element of the crime
requires the defendant to expose or “cause to be visible or open to view”
his or her genitals or pubes to someone other than a spouse. As this
court noted in discussing a predecessor indecent exposure statute: “The
8
words ‘indecent exposure’ clearly imply that the act is either in the actual
presence and sight of others, or is in such a place or under such
circumstances that the exhibition is liable to be seen by others, and is
presumably made for that purpose, or with reckless and criminal
disregard of the decencies of life. . . . The exposure becomes ‘indecent’
only when [the actor] indulges in such practices at a time and place
where, as a reasonable person, he knows, or ought to know, his act is
open to the observation of others.”4 State v. Martin, 125 Iowa 715, 718,
101 N.W. 637, 638 (1904). This definition presupposes a public
exposure as opposed to a private one.
Nothing, however, in the plain language of the statute limits the
contours of the crime of indecent exposure to those acts involving the
specific victim/viewer targeted by the actor. The statute does not require
the actor to be aware or have knowledge of the specific person or persons
to whom he is exposing himself. The statute also does not explicitly
restrict the mode of exposure. The only limitation on the first element is
that the exposure or act of making visible must be to another person not
the defendant’s spouse. See State v. Sousa, 201 A.2d 664, 666 (Conn.
Cir. Ct. 1964) (“ ‘While the exposure must be intentional and not
accidental, the intent required is only a general one, and need not be
directed toward any specific person or persons.’ ” (quoting Peyton v. Dist.
of Columbia, 100 A.2d 36, 37 (D.C. 1953)); Parnigoni v. Dist. of Columbia,
933 A.2d 823, 826 (D.C. Ct. App. 2007) (under statute that made it
4At the time, Iowa Code section 4938 (1897) provided:
Lewdness—indecent exposure. . . . [I]f any man or woman, married or
unmarried, is guilty of open and gross lewdness, and designedly makes
an open and indecent or obscene exposure of his or her person, or of the
person of another, every such person shall be imprisoned in the county
jail not exceeding six months, or be fined not exceeding two hundred
dollars.
9
unlawful “for any person or persons to make any obscene or indecent
exposure of his or her person,” court concluded the law did “not require
that an accused have a specific intent to expose himself to any particular
person”); see also State v. Stevenson, 656 N.W.2d 235, 240 (Minn. 2003)
(in which relevant question under Minnesota indecent-exposure statute
was whether defendant’s conduct was so likely to be observed “that it
must be reasonably presumed that it was intended to be witnessed,”
court concluded that, “given the location of [defendant’s] vehicle, parked
next to a public sidewalk adjacent to a beach where there were hundreds
of people, it was almost certain that someone would walk by and observe
[the defendant] masturbating,” requirement that conduct was committed
with the deliberate intent of being indecent or lewd was met).
It is reasonable to assume that a person who exposes himself in a
public place runs the risk that he will be observed by more than his
targeted audience, including those viewing by closed-circuit video
systems installed in a public shopping area. It is also reasonable to
assume this unwanted public exposure was the evil the legislature
sought to remedy with this law. See United States v. Boston, 494 F.3d
660, 665 (8th Cir. 2007) (finding probable cause to arrest defendant for
violating section 709.9 when off-duty police officer came upon defendant
masturbating while walking along a trail in a park). The district court
correctly concluded there was sufficient evidence to establish the
defendant exposed his genitals to another person, other than a spouse,
as the minutes of testimony of the three employees confirmed the
employees had observed the defendant expose his penis and none of the
employees were married to the defendant.
There was also sufficient evidence the act was done to arouse the
sexual desires of the defendant, thus satisfying the second element of the
10
crime. The defendant acknowledges “it is reasonable to conclude that he
was attempting to arouse or satisfy his own sexual desire” but notes his
desire was “with respect to this unidentified woman,” not the store
employees who saw him. While this observation may be true, it is
irrelevant to our inquiry here. The relevant inquiry is whether, at the
time of the exposure, the actor was intending to arouse his own sexual
desires or the sexual desires of the unwilling viewer. See Iowa Code
§ 709.9.
The requisite intent to arouse or gratify the sexual desire of any
person can be inferred from an accused’s conduct, remarks, and all
surrounding circumstances. Isaac, 756 N.W.2d at 820. Here, the
minutes of testimony established that the defendant, while wandering
through the store, fondled his penis through his clothing, and then, as
he followed an unidentified woman through the store, removed his penis
from his shorts and openly masturbated. This behavior with its clearly
sexual motivation was observed by the three Shopko employees while it
was occurring, thereby meeting the second requirement. See State v.
Plenty Horse, 741 N.W.2d 763, 765 (S.D. 2007) (holding “the prosecution
must link the exhibition of one’s genitals to the intent to seek sexual
gratification”); cf. Isaac, 756 N.W.2d at 820 (noting “our statute requires
[a sexual motivation] at the time of exposure to the viewer” and finding
that, at the time of the defendant’s exposure to the police officer, the
required purpose no longer existed).
The third element requires the viewer be offended by the conduct.
Here, the minutes of testimony established that all three store employees
who viewed the defendant’s public act of masturbation were offended.
Thus, substantial evidence supports the third element.
11
The fourth and final element requires “the actor knew, or under
the circumstances should have known, the victims would be offended.”
Bauer, 337 N.W.2d at 211; accord Iowa Code § 709.9. The incident
report prepared by one of the store employees, who was continuing to
observe the defendant on the closed-circuit video system as the other two
employees approached him, stated the defendant continued to fondle
himself after walking past the unidentified female shopper, but when he
observed the two store employees approaching him, he quit fondling
himself and proceeded to attempt to exit the store. This action suggests
Jorgensen knew the employees would find his conduct offensive, thereby
meeting the fourth element of the offense. See Bauer, 337 N.W.2d at 211
(“ ‘It is only exposure with a sexual motivation, inflicted upon an unwilling
viewer, which will constitute the offense.’ ” (quoting 4 John J. Yeager &
Ronald L. Carlson, Iowa Practice: Criminal Law and Procedure § 217, at
63 (1979)) (emphasis added)). Moreover, applying common mores,
Jorgensen should have known that store employees would find his acts
of unsolicited public masturbation to be offensive. Cf. Hankins v. State,
85 S.W.3d 433, 435 (Tex. Ct. App. 2002) (under indecent exposure
statute that requires recklessness about whether another is present who
will be offended by act, Texas court held rational fact finder could have
concluded defendant who exposed himself in adult book store was
reckless because, as far as he knew, the other person was present simply
to watch a movie, not to see the defendant’s body).
IV. Conclusion.
The district court’s finding that the defendant was guilty of
indecent exposure when he exposed himself to three store employees is
supported by substantial evidence. Although the three employees were
not the object of Jorgensen’s sexual desire, Jorgensen’s exposure of his
12
genitals was sexually motivated at the time they witnessed it. In
addition, the viewers were offended, and Jorgensen knew or should have
known under the circumstances these unwilling viewers would be
offended. The district court’s judgment is affirmed.
DECISION OF COURT OF APPEALS AND DISTRICT COURT
JUDGMENT AFFIRMED.
All justices concur except Baker, J., who takes no part.