State v. Moss

#24581-a-SLZ

2008 SD 64

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

RICHARD ACA MOSS, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE WILLIAM J. SRSTKA, JR.
Judge

* * * *

LAWRENCE E. LONG
Attorney General

ANDREW KNECHT
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

KENNETH M. TSCHETTER
Sioux Falls, South Dakota Attorney for defendant
and appellant.

* * * *
CONSIDERED ON BRIEFS
ON FEBRUARY 11, 2007

OPINION FILED 07/09/08
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ZINTER, Justice

[¶1.] Richard Aca Moss was convicted of indecent exposure in violation of

SDCL 22-24-1.2. Moss appealed the magistrate court jury verdict to circuit court,

and the circuit court affirmed. On appeal to this Court, Moss argues that the

evidence was insufficient to support the verdict. He also argues that the magistrate

court erred in denying his request to submit a jury instruction and argument

supporting a theory that he was not guilty of the charged offense because his

conduct did not satisfy the elements of the charged offense and the State could have

charged him with a related offense. We affirm.

I

[¶2.] On the afternoon of February 22, 2006, Moss drove into the parking lot

of Elmwood Park, a public park in Sioux Falls, South Dakota. He parked his vehicle

next to Ron Miklos’s vehicle. Miklos entered Moss’s vehicle, and the two men

engaged in a brief conversation. Miklos then left Moss’s vehicle and walked across

the parking lot to speak with Miklos’s former roommate Scott Augustine, who was in

a third vehicle.

[¶3.] After Miklos entered Augustine’s vehicle, they both noticed two other

men parked in a pickup truck a few parking spaces away. Miklos and Augustine

were not aware that the two men in the pickup truck were undercover Sioux Falls

Police Detectives David Dunteman and Pat Kneip. Miklos and Augustine testified

that the men were simulating masturbation and oral sex. They also testified that

they believed Dunteman and Kneip were “looking for homosexual activity.” The

detectives, however, testified that they were merely observing Miklos and

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Augustine, and that Miklos and Augustine were frequently looking at the officers

and attempting to make eye contact.

[¶4.] In any event, after about twenty minutes, Augustine decided to leave

the park, and Miklos returned to Moss’s vehicle. Miklos informed Moss what Miklos

had observed and that he thought the two men in the pickup truck “might be looking

for some gay action.” Miklos and Moss decided to take a walk in the park. They

walked over an abandoned bridge located near the northwest corner of the parking

lot, went into a wooded area, and noticed that the detectives were following them.

After the detectives went under the bridge, Miklos and Moss turned around and

proceeded back to the bridge.

[¶5.] The bridge is located around thirty-five yards from the parking lot. It

is within the clear, unobstructed view of baseball fields, swing sets, and playground

equipment. Further, bushes and shrubs only partially obstruct a view of the area

under the bridge.

[¶6.] The four men met under the bridge at a time when no one else was

present in the park. There was a factual dispute whether other individuals were

present in vehicles in the parking lot. The four men began a conversation about the

weather. Moss and Miklos then asked the detectives why they were at the park.

The detectives replied that they wanted to see if “there was any action going on in

the park.” Dunteman then said that he and Kneip “liked to watch” and “were

looking for a show.” Miklos replied, “Well, we can give you a show, but do me a favor

and look out for the police.” Moss then pulled down his pants, and Miklos began

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performing oral sex on Moss. Dunteman informed Moss and Miklos that he and

Kneip were police detectives, and they placed Moss and Miklos under arrest.

[¶7.] Moss was charged with indecent exposure, in violation of SDCL 22-24-

1.2 (2005). At the close of the State’s case, Moss moved for a judgment of acquittal

based on insufficient evidence. Moss also requested to present jury instructions and

argument that he was innocent because his conduct may have constituted the

uncharged offense of public indecency under SDCL 22-24-1.1 (2005). The magistrate

court denied Moss’s request. The jury returned a guilty verdict, and Moss appealed

to circuit court. The circuit court affirmed the conviction.

[¶8.] On appeal to this Court, Moss raises the following issues: (1) whether

there was sufficient evidence to prove the elements of indecent exposure, and (2)

whether the magistrate court abused its discretion in refusing to allow Moss to

present jury instructions and argument that he may have committed the related,

but uncharged offense of public indecency.

II

Sufficiency of the Evidence

[¶9.] Our standard of review of the sufficiency of evidence is well-settled.

“In determining the sufficiency of the evidence on appeal in a
criminal case, the issue before this Court is whether there is
evidence in the record which, if believed by the jury, is sufficient
to sustain a finding of guilt beyond a reasonable doubt.” In
making that determination, “we accept the evidence and the
most favorable inferences fairly drawn therefrom, which will
support the verdict.” Moreover, “the jury is . . . the exclusive
judge of the credibility of the witnesses and the weight of the
evidence.” Therefore, this Court does not resolve conflicts in the
evidence, or pass on the credibility of witnesses, or weigh the
evidence.

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State v. Bordeaux, 2006 SD 12, ¶6, 710 NW2d 169, 172 (citations omitted). “A guilty

verdict will not be set aside if the state’s evidence and all favorable inferences that

can be drawn therefrom support a rational theory of guilt.” State v. Motzko, 2006

SD 13, ¶6, 710 NW2d 433, 437. To determine the sufficiency of evidence in this

case, we must interpret and apply the indecent exposure statute. Our review of

statutory interpretation is de novo, giving no deference to the circuit court’s

conclusions of law. State v. Ducheneaux, 2007 SD 78, ¶2, 738 NW2d 54, 55.

[¶10.] The jury convicted Moss of indecent exposure, in violation of SDCL 22-

24-1.2. Under that statute,

A person commits the crime of indecent exposure if, with the
intent to arouse or gratify the sexual desire of any person, the
person exposes his or her genitals in a public place under
circumstances in which that person knows that person’s conduct
is likely to annoy, offend, or alarm another person. . . .

SDCL 22-24-1.2. In State v. Plenty Horse, we described the elements of this statute:

To be guilty of the offense, first, defendant must have exposed
himself in public. Second, defendant must have exposed himself
in public under circumstances he knew would likely offend,
annoy, or alarm another person. Third, defendant must have
exposed himself in public with “the intent to arouse or gratify
the sexual desire of any person.”

2007 SD 114, ¶8, 741 NW2d 763, 766 (citation omitted).

[¶11.] In this case, Moss concedes that he exposed his genitals, that he did so

in a public place, and that he did so with the intent to arouse or gratify the sexual

desire of a person. Moss, however, asserts that, under the second element, he must

have actually known his exposure would likely annoy, offend, or alarm another

person. Furthermore, Moss claims this element requires the actual presence of a

victim/witness. He argues that because there was no evidence of any witness other

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than Dunteman and Kneip, the State did not prove that Moss “knew” his exposure

was likely to annoy, offend, or alarm another person. We disagree for two reasons.

[¶12.] First, even if the presence of an actual victim/witness were required,

two victims/witnesses were present. Both detectives were members of the public,

who were present enforcing the laws of South Dakota in a public place at the time of

the exposure. Although Moss argues that the detectives “impliedly consented to

witnessing the exposure” by their statements to Moss and Miklos, the detectives’ use

of suggestive language as a law enforcement technique does not mean that the

officers could not be offended by Moss’s conduct. We reject Moss’s suggestion that

police officers cannot, as a matter of law, be offended by indecent exposure,

precluding them from being a victim/witness of the conduct.

[¶13.] Second, SDCL 22-24-1.2 does not require actual knowledge that the

conduct will offend, annoy or alarm a victim/witness who is present. The second

element of the statute only requires that the defendant “must have exposed himself

in public under circumstances he knew would likely offend, annoy, or alarm another

person.” Plenty Horse, 2007 SD 114, ¶8, 741 NW2d at 766 (emphasis added). With

respect to the knowledge requirement, “[a] person has knowledge if that person is

aware that the facts exist which bring the act . . . within the provision of any

statute.” SDCL 22-1-2(1)(c). Therefore, to commit this offense, Moss must have

exposed himself in public being aware that factual circumstances existed that the

exposure would likely offend, annoy, or alarm another person. Because this element

only requires an awareness that factual circumstances existed under which the

exposure would likely offend, annoy or alarm, the test is objective. Furthermore,

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there is nothing in the text of the statute requiring knowledge that the exposure

would cause offense, annoyance, or alarm to some person actually present.

[¶14.] Nevertheless, the dissent utilizes five paragraphs of statutory

construction aids to add that element to the statute, opining that the exposure must

occur in “the presence of a victim.” See infra ¶¶33, 35, and 37. The dissent would

add that element despite the fact that the actual presence of a victim was an

element of the predecessor statute, but that element was repealed when the

predecessor statute was revised and reenacted as SDCL 22-24-1.2 in 1998. 1

Notwithstanding the express repealer, the dissent opines “the presence of a victim

remains a required element of the crime.” Infra ¶37.

[¶15.] That judicial construction overlooks the plain text and the elementary

fact that had the Legislature intended to retain that element, it would have simply

retained the prior statutory language “where there is present any person.” See

supra n1. The dissent also engages in speculative judicial construction2 without the

predicate finding of ambiguity. It ultimately overlooks our often-stated paramount

rules of statutory construction:

The first rule is that the language expressed in the statute is
the paramount consideration. The second rule is that if the
words and phrases in the statute have plain meaning and
effect, we should simply declare their meaning and not resort to
statutory construction.

1. The repealed statute expressly required that the exposure take place “where
there is present any person.” SDCL 22-24-1 (repealed, 1998 SD Sess Laws ch
136 § 1). The 1998 Legislature removed that language from SDCL 22-24-1.2.

2. The dissent reaches this result construing 1998 legislative intent from a 2005
amendment of a related statute. See infra ¶36.

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Goetz v. State, 2001 SD 138, ¶15, 636 NW2d 675, 681; In re West River Elec. Ass’n,

Inc., 2004 SD 11, ¶15, 675 NW2d 222, 226. We follow these rules because:

The intent of a statute is determined from what the legislature
said, rather than what the courts think it should have said, and
the court must confine itself to the language used.

Words and phrases in a statute must be given their plain
meaning and effect. When the language of a statute is clear,
certain and unambiguous, there is no reason for construction,
and the Court’s only function is to declare the meaning of the
statute as clearly expressed.

Goetz, ¶16, 636 NW2d at 681 (emphasis original) (citations omitted). Therefore, “we

may not, under the guise of judicial construction, add modifying words to the statute

or change its terms.” City of Sioux Falls v. Ewoldt, 1997 SD 106, ¶13, 568 NW2d

764, 767. Because the Legislature explicitly removed the actual presence of a victim

element from this version of the indecent exposure statue, this Court should not

“construe” that element back into the statute. Even if there were an ambiguity, we

could not construe that element into the statute because, as we stated long ago:

[W]hen the Legislature makes a revision of a particular statute,
and frames a new statute upon the subject-matter, and from
the framework of the act it is apparent that the Legislature
designed a complete scheme for this matter, it is a legislative
declaration that whatever is embraced in the new law shall
prevail, and whatever is excluded is discarded. It is decisive
evidence of an intention to prescribe the provisions contained in
the later act as the only ones on that subject which shall be
obligatory.

Burnett v. Myers, 42 SD 233, 235, 173 NW 730, 731 (1919).

[¶16.] Finally, even if actual presence were an element, and even if

Dunteman and Kneip had not been present, the evidence was sufficient for a jury to

have found that Moss exposed himself in a public place aware of circumstances

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under which his exposure was likely to offend, annoy, or alarm another. There was

a factual, evidentiary dispute at trial concerning the presence of other victims in

other vehicles in the parking lot at the time of the exposure, and Moss does not

dispute the area under the bridge was partially viewable from the parking lot. Moss

testified that there were no leaves on the surrounding deciduous trees, and that it

was a bright afternoon day. He also testified that he knew he was in a public park

where anyone was free to enter or leave, and that at various times there were other

people in the parking lot he did not recognize. There is also no dispute that the

bridge was within view of baseball fields, playground equipment, a picnic shelter,

and a bike path that ran adjacent to the park. Finally, prior to engaging in the act,

Miklos, in Moss’s presence, asked the detectives to watch for the police. Moss even

testified that at the time of exposure, he had concerns about whether somebody else

would arrive. In viewing these facts and the inferences to be drawn therefrom in a

light most favorable to the jury verdict, a reasonable jury could have found that

Moss was aware that the facts and circumstances of that location were such that his

conduct was likely to annoy, offend, or alarm another person.

[¶17.] Moss finally points out that indecent exposure is classified as a “sex

crime” requiring registration as a sex offender. SDCL 22-24B-1(11). Moss notes

that the legislative intent behind the sex offender registration legislation was to

protect the public from future victimization. Moss argues that there was no

witness/victim in this case, and therefore future revictimization could not occur.

From this, Moss concludes that his conduct could not have been a sex crime, and if

not, it does not fall under the indecent exposure statute.

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[¶18.] Moss, however, fails to recognize that no matter what the Legislature’s

intent in enacting sex offender registration legislation, sex offender registration is

not an element of indecent exposure: it is a consequence of that offense. Therefore,

whether indecent exposure is a sex crime under the registration statutes is

irrelevant in determining the sufficiency of evidence. Moss also fails to recognize

that his conduct was witnessed by at least two victims; and, even if it had not been

witnessed, future similar conduct may victimize a member of the public. Moss

finally fails to recognize that “the Legislature’s intention in requiring registration

was to accomplish the regulatory purpose of assisting law enforcement in identifying

and tracking sex offenders to prevent future sex offenses, especially those against

children.” Meinders v. Weber, 2000 SD 2, ¶13, 604 NW2d 248, 255. Therefore, it is

reasonable to conclude that the Legislature intended to require people who have

committed indecent exposure to register as sex offenders, even if the occurrence was

not witnessed by anyone other than police. It is certainly reasonable to assume that

the Legislature intended registration in cases where indecent exposure takes place

in a public park near children’s playground equipment, which is an area designated

as a community safety zone under SDCL 22-24B-22(1). 3

III

Uncharged Offenses

3. “‘Community safety zone,’ [is] the area that lies within five hundred feet from
the facilities and grounds of any school, public park, public playground, or
public pool, including the facilities and grounds itself[.]” SDCL 22-24B-22(1).
As a registered sex offender, Moss would be precluded from residing or
loitering in these areas.

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[¶19.] Initially, it must be observed that this is not a case in which Moss was

ever prohibited from arguing that his conduct did not rise to the level necessary to

meet the elements of indecent exposure. In addition to arguing that point, Moss

asked the trial court to instruct and let him argue that “there is another charge here

[public indecency] that the State could have charged [him] with.” Moss contended

that “the jury was entitled to know that another, lesser criminal statute proscribed

the offending conduct.” On appeal, Moss concedes that public indecency4 is not a

lesser-included offense of indecent exposure, but argues that the jury should have

been instructed and he should have been permitted to argue that the State could

have charged the uncharged offense of public indecency.

[¶20.] Before the trial court, Moss explained his request as follows:

Public indecency . . . is a related offense, and it’s our theory of
defense that what happened here meets the elements of that
lesser offense, but doesn’t rise to level of indecent exposure, and
its--I think we’re entitled to tell that to the jury. . . . I want to
be able to tell the jury that there is another law that covers this
conduct[.]

4. The public indecency statute, SDCL 22-24-1.1 (2005), provides, “[a] person
commits the crime of public indecency if the person, with an immoral purpose,
exposes his or her anus or genitals in a public place where another may be
present who will be offended or alarmed by the person’s act.” Public
indecency is a Class 2 misdemeanor, as opposed to indecent exposure, which
is a Class 1 misdemeanor. See SDCL 22-24-1.1 and 22-24-1.2. Moss concedes
that public indecency is not a lesser-included offense of indecent exposure and
that he is not entitled to a public indecency instruction under our lesser-
included jurisprudence. See State v. Giroux, 2004 SD 24, ¶__, 676 NW2d 139,
___.

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He further explained that “without being informed of any alternative, such as [the]

public indecency charge, the jury’s only choice was a conviction for the greater

charge, [the Class 1 misdemeanor], indecent exposure.”

[¶21.] The trial court denied Moss’s proposed instruction, and with respect to

his proposed argument ruled: “I think you can make your [argument in] closing

and if there’s an objection, we’ll deal with it at that time.” The court further ruled

that it was only “inclined, depending on how it was argued that you are arguing

jury nullification.” Because these were not final rulings on the argument request,

and because Moss has not pointed to any place in the record where he was

subsequently precluded from arguing any portion of this theory in closing

statements, we decline to review the issue on appeal. See Cooper v. Cooper, 299

NW2d 798, 800 (SD 1980) (providing: “The appellant must affirmatively establish

a record on appeal that shows the existence of error. He . . . must show that the

trial court was given an opportunity to correct the grievance he . . . complains

about on appeal.”) 5

[¶22.] The remaining question is whether Moss was entitled to his proposed

jury instruction that his conduct may have violated a related statute other than the

one for which he was charged. Moss’s proposed instruction provided:

5. During opening statements, Moss did attempt to argue other crimes, telling
the jury that the trial might involve a discussion of “another statute that
classifies a different sort of crime about having sex in a public place, and
you’re going to have the question put to you, well, did they do that . . . .” At
this point, an objection was raised and an off-the-record discussion occurred.
Moss did not, however, preserve a record of that discussion and the court’s
ruling. Therefore, we do not review any alleged error or prejudice arising in
the opening statement. Cooper, 299 NW2d at 800.

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The Defendants are charged with Indecent Exposure. As
previously instructed, this crime requires a finding by you that
the exposure of genitals took place under circumstances that
Defendants knew that their conduct was likely to annoy, offend,
or alarm another person.

It is a separate crime under South Dakota Law if a person with
an immoral purpose, exposes his genitals in a public place,
where another person may be present who will be offended or
alarmed by the person’s act. This crime of Public Indecency
does not require a finding that the Defendants knew that their
conduct was likely to annoy, offend, or alarm another person.

If you find that genital exposure occurred in a public place,
where another person may be present who will be offended or
alarmed by the exposure (Public Indecency), you must acquit
the Defendants of the crime charged, unless you also find that
the exposure of genitals took place under circumstances in
which Defendants knew that their conduct was likely to annoy,
offend, or alarm another person.

It is the Defendants’ claim that at most, the facts at issue show
the lesser offense of Public Indecency. If you find that Public
Indecency as defined above occurred, but without Defendants’
knowledge that their conduct was likely to annoy, offend, or
alarm another person, you must acquit the Defendants of the
Indecent Exposure charge.

[¶23.] “We review a trial court’s refusal of a proposed instruction under an

abuse of discretion standard. The trial court has broad discretion in instructing the

jury.” State v. Martin, 2004 SD 82, ¶21, 683 NW2d 399, 406. “Error in declining to

apply a proposed instruction is reversible only if it is prejudicial, and the defendant

has the burden of proving any prejudice.” Id. This Court reviews jury instructions

as a whole and will not find them erroneous if they correctly state the law and

inform the jury. Cody v. Edward D. Jones Co., 502 NW2d 558 (SD 1993).

[¶24.] The magistrate court refused the instruction because it did not

correctly state the law. We agree for two reasons. First, the last paragraph of the

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proposed instruction incorrectly omits substantive language that the jury must

consider. The indecent exposure statute only requires that the exposure take place

“under circumstances in which” the defendant knows that his conduct is likely to

annoy, offend, or alarm another person. SDCL 22-24-1.2. Moss’s proposed

instruction omits this quoted language, and its omission misstates the applicable

law.

[¶25.] Second, Moss was not entitled to have the jury instructed on uncharged

crimes that were not lesser-included offenses. Moss’s reliance upon Sanborn v.

Commonwealth, 754 SW2d 534 (KY 1988) is misplaced. Sanborn held that a

defendant was, as his theory of defense, entitled to an instruction on a related

offense that was not a lesser-included offense. Id. at 549-50. Moss fails to note,

however, that Sanborn was a plurality opinion that was overruled by Hudson v.

Commonwealth, 202 SW3d 17 (KY 2006). In Hudson, the defendant argued that he

was not guilty of driving while under the influence of alcohol because he was not the

driver. To further support his defense, he also argued that he was entitled to a jury

instruction on the related offense of alcohol intoxication, which carried a lesser

penalty. Like South Dakota, under Kentucky law a “defendant has a right to have

every issue of fact raised by the evidence and material to his defense submitted to

the jury on proper instructions.” Id. at 19 (citation omitted). Nevertheless, Hudson

observed that because public intoxication was not a lesser-included offense, the

defendant could be convicted of both offenses if properly charged. Thus, the court

held that “the fact that the evidence would support a guilty verdict on a lesser

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uncharged offense does not entitle a defendant to an instruction on that offense.” Id.

at 21. Instead, the rule is:

An instruction on a separate, uncharged, but “lesser” crime--in
other words, an alternative theory of the crime--is required only
when a guilty verdict as to the alternative crime would amount
to a defense to the charged crime, i.e., when being guilty of both
crimes is mutually exclusive.

Id. at 22. 6 Hudson explained that instructing on related but uncharged crimes,

whenever the evidence suggests the existence of such crimes, “would allow a

criminal appellant to seek reversal of his conviction simply because the trial court

failed to instruct as to all the criminal acts he may have committed, regardless of

whether the other uncharged crimes have any bearing on guilt as to the charged

crimes.” Id.

[¶26.] Our jurisprudence supports Hudson’s rule of law. See State v.

Goodman, 384 NW2d 677, 682 (SD 1986) (concluding that because simple assault is

not a lesser-included offense of child abuse, the trial court did not err in refusing to

adopt defendant’s proposed instruction on simple assault); and State v. McGarret,

535 NW2d 765, 769 (SD 1995) (concluding that because grand theft, aggravated

assault, and simple assault do not constitute lesser-included offenses of first-degree

robbery, the trial court did not err in denying defendant’s proposals).

[¶27.] In this case, it is conceded that public indecency is not a lesser-included

offense of indecent exposure because the two offenses have different elements.

6. This rule also renders Moss’s reliance on United States v. Brown, 33 F3d 1002
(8thCir 1994) inapposite. Unlike Moss’s case, Brown involved a situation
where the defendant could not have been convicted of the charged and
uncharged offenses.

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Further, the only element in dispute at trial was whether the exposure occurred

under circumstances where Moss knew that it was likely to offend, annoy or alarm

another person. Because the jury would not have been required to consider that

element under a public indecency charge, the jury’s finding on public indecency

could not have been a legal defense to the crime of indecent exposure. Therefore,

even if Moss were guilty of public indecency, that guilt would have no bearing on his

guilt or innocence of indecent exposure. Because the public indecency offense was

not material to his defense, Moss was not entitled to an instruction on the existence

of another related crime, which may have proscribed similar conduct. Consequently,

the magistrate court did not abuse its discretion in denying Moss’s request for an

instruction on public indecency.

[¶28.] Affirmed.

[¶29.] GILBERTSON, Chief Justice, and KONENKAMP, Justice,

concurs.

[¶30.] SABERS and MEIERHENRY, Justices, dissent in part and

concur in result in part.

SABERS, Justice (dissenting in part and concurring in result in part).

[¶31.] I join Justice Meierhenry’s writing in all respects. Under the statutes,

law enforcement officers who consent to witness acts of indecent exposure cannot be

considered victims.

MEIERHENRY, Justice (dissenting in part and concurring in result in part).

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[¶32.] I dissent on the majority’s interpretation of the indecent exposure

statute as well as its characterization of the detectives as victims; however, I concur

in the result.

[¶33.] Moss contends that the State failed to prove he was guilty of the crime

of indecent exposure because the evidence did not support an element of the crime,

that is, that a victim be present and that the perpetrator “knows [his/her] conduct is

likely to annoy, offend, or alarm” the present victim. Citing SDCL 22-24-1.2

(indecent exposure). 7 Moss’s interpretation of the statute has merit; nevertheless,

based on the evidence the conviction should be affirmed.

[¶34.] South Dakota’s statutory scheme contains three separate statutes that

criminalize the exposure of one’s genitals -- public indecency, indecent exposure and

indecent exposure involving a child. When these statutes are considered in pari

materia, it appears the legislature intended to require the presence of a victim for

the crimes of indecent exposure and indecent exposure involving a child, but

expressly excluded the necessity for the presence of a victim for public indecency.

SDCL 22-24-1.1 (public indecency); SDCL 22-24-1.2 (indecent exposure), SDCL 22-

24-1.3 (indecent exposure involving a child).

7. SDCL 22-24-1.2 provides in pertinent part as follows:
A person commits the crime of indecent exposure if, with the
intent to arouse or gratify the sexual desire of any person, the
person exposes his or her genitals in a public place under
circumstances in which that person knows that person’s conduct
is likely to annoy, offend, or alarm another person. A violation of
this section is a Class 1 misdemeanor. . . .

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[¶35.] We have said that “[t]he object of the rule of [in] pari materia is to

ascertain and carry into effect the intention of the legislature. It proceeds upon the

supposition that the several statutes [are] governed by one spirit and policy, and

[are] intended to be consistent and harmonious in their several parts and

provisions.” Lewis & Clark Rural Water System, Inc. v. Seeba, 2006 SD 7, ¶15, 709

NW2d 824, 831 (citations omitted) (noting that the maxim of in pari materia

requires the attempt to harmonize statutes). “Statutes must be construed in pari

materia when ‘they relate to the same person or thing, to the same class of person or

things, or have the same purpose or object.’” Id. (quoting Goetz v. State, 2001 SD

138, ¶26, 636 NW2d 675, 683 (citing 2B Sutherland, Statutory Construction, § 51:03

(6th ed 2000))). See also State v. Plenty Horse, 2007 SD 114, ¶5, 741 NW2d 763, 765

(noting “In construing a statute, we attempt to ascertain its intent. The intent must

be determined from the statute as a whole, as well as enactments relating to the

same subject.”) (internal citation and quotes omitted); Seeba, 2006 SD 7, ¶12, 709

NW2d at 830) (noting that “[t]his Court gives ‘words their plain meaning and effect,

and read[s] statutes as a whole, as well as enactments relating to the same subject’”)

(citations omitted) (emphasis added). Indeed, the public indecency and indecent

exposure statutes prohibit the same types of obscene public exposure and were

enacted and amended by the same Legislature, at the same time, and in the same

bills. See 1998 SD Sess Laws ch 136, §§ 2 and 3; 2005 SD Sess Laws ch 120, §§ 298

and 299. See also Plenty Horse, 2007 SD 114, ¶6 n1, 741 NW2d at 765 n1

(recognizing that “[i]n 1998, the Legislature repealed a previous version of the

statute and enacted two statutes in replacement”). Although the indecent exposure

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statute involving a child was not enacted until 2002, it shares common phraseology

with the other two.

[¶36.] Each statute’s exclusivity becomes clear when the statutes are

construed in pari materia. All three contain similar wording but contain different

requirements for who must be present in the public place when the exposure occurs.

The mens rea element of each statute exemplifies this distinction. The indecent

exposure statute requires the intentional exposing of ones genitals, “under

circumstances in which that person knows that person’s conduct is likely to annoy,

offend or alarm another person.” SDCL 22-24-1.2 (emphasis added). Similarly, the

indecent exposure involving a child requires the intentional exposing of ones

genitals “under circumstances in which that person knows that his or her conduct is

likely to annoy, offend, or alarm some child, thirteen years of age or younger.” SDCL

22-24-1.3 (emphasis added). Comparatively, the public indecency statute merely

requires the perpetrator “know” his conduct -- which is likely to offend, annoy or

alarm -- occurs in a public place where “another may be present.” SDCL 22-1-1.1

(emphasis added). It appears that the legislature intended that the presence of a

victim be a factor in these crimes.

[¶37.] Prior to the legislature’s adoption of the current criminal exposure

scheme, there was only one statute that defined criminal exposure and it required

the presence of a victim. 8 SDCL 22-24-1, repealed by 1998 SD Sess Laws ch 136, §

8. SDCL 22-24-1 (1997) provided:
Any person who intentionally and with an immoral purpose
exposes his or her genitalia in any place where there is present
any person, other than the spouse of the exposer, to be offended
(continued . . .)
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1. That statute was repealed and reenacted as two distinct crimes, public indecency

and indecent exposure. 9 1998 SD Sess Laws ch 136, §§ 2 and 3. A third statute,

indecent exposure involving a child, was later added to the criminal exposure

scheme. 10 2002 SD Sess Laws ch 111, § 1. When the legislature split up the crimes,

________________________
(. . . continued)
or annoyed thereby, is guilty of a Class 1 misdemeanor.
However, if such person has been previously convicted of a felony
violation of § 22-22-1, 22-22-19.1, or 22-22-23, that person is
guilty of a Class 6 felony. Any person convicted of a third or
subsequent violation of this section is guilty of a Class 6 felony.

9. SDCL 22-24-1.1 (1998) (public indecency) provided:
A person commits the crime of public indecency if the person,
with an immoral purpose exposes his or her anus or genitals in a
public place where another may be present who will be offended
or alarmed by the person’s act. A violation of this section is a
Class 2 misdemeanor.
SDCL 22-24-1.2 (1998) (indecent exposure) provided:
A person commits the crime of indecent exposure if, with the
intent to arouse or gratify the sexual desire of any person, the
person exposes his or her genitals in a public place under
circumstances in which that person knows that person’s conduct
is likely to annoy, offend or alarm another person. A violation of
this section is a Class 1 misdemeanor. . . .

10. SDCL 22-24-1.3 (2002) (indecent exposure involving a child) provided:
If any person, eighteen years of age or older, exposes his or her
genitals in a public place under circumstances in which that
person knows that his or her conduct is likely to annoy, offend, or
alarm some other person, and that conduct is viewed by and
does, in fact, annoy, offend, or alarm any child, thirteen years of
age or younger, that person is guilty of the crime of aggravated
indecent exposure. Aggravated indecent exposure is a Class 1
misdemeanor. A second or subsequent conviction for aggravated
indecent exposure is a Class 6 felony.
Interestingly, the penalty for actually exposing one’s genitals in a
public place to a child who was “in fact” annoyed, offended or alarmed
evoked the exact penalty as the charged indecent exposure statute.
Compare SDCL 22-24-1.3 (2005) (indecent exposure involving a child)
(penalty of Class 1 misdemeanor with second offense raised to Class 6
(continued . . .)
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it expressly excluded the necessity for the presence of a victim for public indecency

by adding the language: “where another may be present.” SDCL 22-24-1.1 (1998)

(emphasis added). In 2005, the legislature amended the public indecency statute

adding the exact language already used in both the indecent exposure statute and

the indecent exposure involving a child statute: “under circumstances in which that

person knows that his or her conduct is likely to annoy, offend, or alarm.”11 2005

SD Sess Laws ch 120, § 128; see also 2005 SD Sess Laws ch 120, § 147 (providing

that “[t]he provisions of this Act are effective on July 1, 2006”). Because the public

indecency statute already contained language expressly abolishing the necessity for

the presence of a victim, the only purpose for the amendment was to define the

________________________
(. . . continued)
felony) with SDCL 22-24-1.2 (2005) (penalty of Class 1 misdemeanor
with second offense raised to Class 6 felony). The current version of
SDCL 22-24-1.3 (indecent exposure involving a child) provides as
follows:
If any person, eighteen years of age or older, with the intent to
arouse or gratify the sexual desire of any person, exposes his or
her genitals under circumstances in which that person knows
that his or her conduct is likely to annoy, offend, or alarm some
child, thirteen years of age or younger, that person is guilty of
the crime of indecent exposure involving a child. Indecent
exposure involving a child is a Class 6 felony. A second or
subsequent conviction for indecent exposure involving a child is
a Class 5 felony.

11. SDCL 22-24-1.1 currently provides:
A person commits the crime of public indecency if the person,
under circumstances in which that person knows that his or her
conduct is likely to annoy, offend, or alarm some other person,
exposes his or her anus or genitals in a public place where
another may be present who will be annoyed, offended, or
alarmed by the person’s act. A violation of this section is a Class
2 misdemeanor.
(Emphasis added).

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prohibited conduct. If we were to interpret the shared provision as an elimination of

the requirement that a victim be present, as the Court prescribes above, the

previous and current wording “where another may be present” becomes useless and

superfluous. We must presume that the legislature does not exert the effort to

amend statutes with redundant and meaningless language. See Brim v. South

Dakota Bd. of Pardons & Paroles, 1997 SD 48, ¶43, 563 NW2d 812, 822 (citation

omitted) (stating “This court will not construe a statute in a way that renders parts

to be duplicative and surplusage”) (citing Sutherland Statutory Construction § 22.30

(5th ed 1993) (“[I]t is presumed that the provisions added by amendment were not

included in the original act.”)).

[¶38.] Moreover, consideration of the indecent exposure statute involving a

child further emphasizes the fact that the shared phrase defines the “conduct”

rather than the probability that a victim be present. The initial version of that

statute provided as follows: “If any person, eighteen years of age or older, exposes

his or her genitals in a public place under circumstances in which that person knows

that his or her conduct is likely to annoy, offend, or alarm some other person, and

that conduct is viewed by and does, in fact, annoy, offend, or alarm any child, . . .

that person is guilty.” SDCL 22-24-1.3 (2005). Again, if we were to interpret the

shared provision as an elimination of the requirement that a victim be present, as

the majority prescribes above, the subsequent language requiring the presence of a

child victim would be awkward and absolutely contrary to the Court’s interpretation

of the shared phrase. See id.; see also Seeba, 2006 SD 7, ¶64, 709 NW2d at

841 (citation and internal quotes omitted) (“[w]here statutes appear to conflict, it is

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our responsibility to give reasonable construction to both, and if possible, to give

effect to all provisions under consideration, construing them together to make them

harmonious and workable.”). The shared phrase defines the criminalized conduct;

therefore, because the legislature chose not to use the language “where another may

be present” when defining indecent exposure, the logical conclusion is that the

presence of a victim remains a required element of the crime.

[¶39.] Finally, at the trial, Detective Duntman testified that from the location

of the prohibited conduct he observed two occupied vehicles one that could be seen

“plain as day” and another individual in a van who was “observing what was going

on.” Based on this testimony, the jury could have rationally inferred that the

present individuals, who occupied the vehicles, unwillingly witnessed the sex act

without consenting to the same. Therefore, the necessity to demonstrate the

presence of a victim was satisfied. Although the majority claims that the detectives

met the statutory requirement of the presence of victims, the State did not make

this claim at trial or to this Court. In fact, the State emphasized that the victims

were the unwilling, unknowing public – not the police officers. The State made the

following argument to the jury:

[T]here is no evidence that there is a sign outside of Elmwood
Park that says warning, sex may be occurring, if you don’t want
to see it, please, leave. . . . There were actually people in the
parking lot. They’re trying to change that to well, there were
people in the parking lot, but this is the sex park, and so if you
go to this park, you’ve got to expect it, just like if you go to a strip
club. Well, you know what, if you’re in law enforcement, maybe
you have that information, if you’re a prosecutor, maybe you
have that information, but if you’re a member of the community,
again, no sign or indication that that’s what may be occurring.

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I would affirm the verdict solely on the basis of the testimony regarding the other

witnesses being present.

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