Moses v. Commonwealth

BENTON, JR., Judge.

The trial judge convicted Kenneth Samuel Moses of the felony of taking indecent liberties with a child, Code § 18.2-370, and two misdemeanor counts of making an obscene display or exposure of his person in violation of Code § 18.2-387. Moses contends the evidence was insufficient to support the misdemeanor convictions. We agree, and we reverse both misdemeanor convictions.

I.

The evidence proved a ten-year-old girl was in a department store with her mother and her brother in August of 2001, when she saw Moses walking among the aisles. Later, in the check-out line, Moses began a conversation with the girl. Moses told the girl she was very beautiful and told her he thought other people must have said this to her. The girl testified that Moses had his hands in his pants as he talked to her. She saw “his hand through his pants” and said his hand was rubbing his penis. She also testified that she did not see the “shape of his penis under his clothes.” When the girl’s mother arrived, the girl left the store with her mother and *570brother. Outside the store, the girl reported the incident to her mother.

In December of 2001, an eleven-year-old girl was in another department store with her mother. The girl saw Moses behind a display rack looking at her and “rubbing himself ... [i]n his private area.” She told her mother “that ... man was adjusting himself.” After her mother paid for merchandise, she momentarily walked away from the girl. Moses approached the girl when she was alone near the entrance and “told [her] that [she] was a pretty little girl and ... asked how [her] butt felt.” Later, in the parking lot, the girl reported the conversation to her mother.

The trial judge convicted Moses of two offenses of violating Code § 18.2-387.1

II.

Code § 18.2-387 provides as follows:

Every person who intentionally makes an obscene display or exposure of his person, or the private parts thereof, in any public place, or in any place where others are present, or procures another to so expose himself, shall be guilty of a Class 1 misdemeanor. No person shall be deemed to be in violation of this section for breastfeeding a child in any public place or any place where others are present.

The evidence proved Moses’s conduct was indecent, but we hold that the evidence failed to prove either “an obscene display ... of his person, or the private parts thereof’ or “an obscene ... exposure of his person, or the private parts thereof.” Code § 18.2-387 (emphases added). Our review of the common law of indecent exposure and the language of the statute itself compels the conclusion that the *571words “display” and “exposure” as used in Code § 18.2-387 are synonymous and that the statute applies only when the body part in question was clearly visible without clothing or was exposed without clothing and likely to be seen.2 See also 1960 Va. Acts, ch. 233 (first enacting Code § 18.1-236, the predecessor statute, which proscribed the same behavior, “obscene display or exposure,” as Code § 18.2-387).

“The term ‘indecent exposure’ had a precise, well defined meaning at common law....” Wicks v. City of Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974) (interpreting a local ordinance containing the term “indecently expose”).

“[T]he best construction of [a] statute is[ ] to construe it as near to the reason of the common law as may be____” The reason is that the Legislature is presumed to have known and to have had the common law in mind in the enactment of a statute. The statute must therefore be read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law.

Id. (quoting Chichester v. Vass, 5 Va. (1 Call.) 83, 102 (1797)); see People v. Massicot, 97 Cal.App.4th 920, 118 Cal.Rptr.2d 705, 711 (2002) (holding that in the “absence of express definitions, ... we may construe the statute to encompass indecent exposure as it was defined at common law” (citing 2A J.G. Sutherland, Statutes and Statutory Construction, § 50.03, at 435 (Norman J. Singer ed., 4th ed.1984))). Further, penal statutes “must be strictly construed against the state and limited in application to cases falling clearly within the language of the statute.” Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). Both the history of the common law offense of indecent exposure and the language *572used by the legislature in enacting the successive code sections that have proscribed indecent exposure fail to support the conclusion that the legislature intended to change the common law when it used the word “display” in its enactment of Code § 18.2-387.

At common law, indecent exposure involved intentionally exposing one’s private parts in a manner that same could reasonably have been seen by members of the public.3 Noblett v. Commonwealth, 194 Va. 241, 244-46, 72 S.E.2d 241, 243-44 (1952) (citing definitions indicating the offense is committed where the “ ‘act is seen or is likely to be seen’ ” (quoting 67 C.J.S. Obscenity § 5, at 25 (1950))). The Supreme Court of Virginia has recognized a definition of common law “indecent exposure” that requires “ ‘[ejxposure to sight’ ” Wicks, 215 Va. at 276, 208 S.E.2d at 754 (quoting Black’s Law Dictionary 909 (4th ed.1951) (emphasis added)). Black’s Law Dictionary, which is referenced in Wicks, treats the terms “exposure” and “display” as synonymous, defining “indecent exposure ” as “[a]n offensive display of one’s body in public, esp. of the genitals. Cf. Lewdness.... ” Black’s Law Dictionary 773 (7th ed.1999) (emphases added); see also Noblett, 194 Va. at 245, 72 S.E.2d at 243-44 (referring to exposure as an “exhibition”); Black’s, supra, at 595 (defining “exhibitionism” as an “indecent display of one’s body” (emphasis added)); Massicot, 118 Cal.Rptr.2d at 712 (noting that conduct sought to be prohibited by common law indecent exposure was “exhibitionism,” which it defined as “the display of the male genital organs for sexual gratification” (emphasis added)).

We adopted just such a definition of “expose” in Siquina v. Commonwealth, 28 Va.App. 694, 697-99, 508 S.E.2d *573350, 352-53 (1998), where we construed the portion of Code § 18.2-370, proscribing “knowingly and intentionally ‘ex-posting] [one’s] sexual or genital parts to any child.’ ” Noting that the dispositive issue was whether the indecent liberties statute required that the child actually see the perpetrator’s genitals, we held, based on analogy to the common law and the Supreme Court’s interpretation of it in Noblett and Wicks, that actual viewing was not required, but that the evidence had to prove the genitals were “seen or likely to be seen.” Siquina, 28 Va.App. at 698-99, 508 S.E.2d at 352-53. In doing so, we conducted an extended analysis of the “origin and contemporary definition of the verb ‘expose’

“Expose” originated as an adaptation of the Latin verb “exponere,” which includes the following definitions: 1) to put or bring out into the open, or 2) to put on show or display. 5 The Oxford English Dictionary 578 (2d ed.1989); Oxford Latin Dictionary 651 (1982). Today, the definition has remained true to its roots. Webster’s Third New International Dictionary 802 (1981), defines “expose” as “to lay open to view.” In Black’s Law Dictionary 579 (6th ed.1990), “expose” is defined as: “To show publicly; to display; to offer to the public view....” Black’s definition of “indecent exposure” is also instructive: “This term refers to exhibition of those private parts which ... human decency ... require[s] shall be kept covered in [the] presence of others. Exposure ... becomes indecent when it occurs at such time and place where [a] reasonable person knows or should know his act [may be viewed by] others.” Id. at 768.

Id. at 697-98, 508 S.E.2d at 352 (emphases added); see also Brooker v. Commonwealth, 41 Va.App. 609, 616, 587 S.E.2d 732, 735 (2003) (adopting Siquina’s definition of “expose”).

The structure of the statute itself also fails to establish that the legislature did not intend the term “display” to be synonymous with the term “exposure.” The legislature used the terms “display or exposure” in the first part of the statute to proscribe the behavior in which an individual may not himself or herself engage, but it used only the term “exposure” in the second half of the statute to set out the *574behavior in which an individual may not “procure” another to engage. It would be anomalous under the language of this statute to hold that the legislature intended to punish a defendant for engaging in either of two types of behavior himself but to punish him for enticing someone else to engage in only one of those two types of behavior. A court must construe the challenged statute “from its four corners and not by singling out particular words or phrases.” Smith v. Commonwealth, 8 Va.App. 109, 113, 379 S.E.2d 374, 376 (1989). “If the several provisions of a statute suggest a potential for conflict or inconsistency, we construe those provisions so as to reconcile them and to give full effect to the expressed legislative intent.” Mejia v. Commonwealth, 23 Va.App. 173, 176-77, 474 S.E.2d 866, 868 (1996) (en banc). “[A] statute should never be construed so that it leads to absurd results.” Branch v. Commonwealth, 14 Va.App. 836, 839, 419 S.E.2d 422, 424 (1992). Absent a clear legislative intent to the contrary, principles of statutory construction compel us to conclude the legislature intended that a “display” in violation of the statute also requires an “exposure.”4

*575Thus, by its plain terms, the statute requires that the accused actually render visible or cause to be seen or likely to be seen the body or the proscribed part. The statute requires proof of some degree of nudity of the body or the private parts of the body under circumstances denoting obscenity and satisfying the other statutory requirements.5 Cf. Copeland v. Commonwealth, 31 Va.App. 512, 515-16, 525 S.E.2d 9, 10-11 (2000) (holding that evidence of defendant’s exposing his genitals and being visibly aroused in a woman’s backyard was sufficient to support conviction for indecent exposure); Morales v. Commonwealth, 31 Va.App. 541, 543, 525 S.E.2d 23, 24 (2000) (holding evidence of defendant’s exposing his erect penis and masturbating outside a lighted window sufficient to convict for indecent exposure).

III.

The evidence proved that Moses did not expose his genitalia or private parts to the children on either occasion.6 The evidence proved Moses was fully clothed and exposed no part of his body as proscribed by the statute. Cf. Hart v. *576Commonwealth, 18 Va.App. 77, 80, 441 S.E.2d 706, 708 (1994) (holding that a man wearing “a skimpy G-string which covered only his penis and anus, leaving his pubic area and buttocks exposed,” violated the statute by intentionally exposing in an obscene manner his pubic area and buttocks). In both instances, Moses rubbed his “private parts” beneath his clothing while looking at the girls and while in a position where the girls could see his conduct. In neither instance, however, did he cause to be visible any part of his body that he rubbed. One girl testified that she did not see the shape of his penis as he rubbed it. The other girl testified only that he was standing behind a display rack “rubbing ... his private area.” She, likewise, did not see his genitalia.

The statute is not a general bar to a person’s conducting himself or herself in an indecent or offensive manner. Thus, for example, the statute obviously does not purport to proscribe tight pants or sweaters or other garments that opaquely clothe the body but leave some portion of the population offended due to sensitivity about the tightness of the garment. It does not, by its terms, bar hand gestures that might be considered offensive. Indeed, nothing in the statutory words, when given their meanings in ordinary parlance, bars a person from the mere act of rubbing himself or herself without proof of more. The statute bars “obscene” conduct, not indecent conduct that does not expose parts of the body. See, e.g., State v. Jaime 4 Conn.Cir.Ct. 530, 236 A.2d 474, 475 (1967) (holding that defendant’s “shaking his hand in his pelvic region” and exposing white underpants was insufficient to support a conviction for violating statute prohibiting “wantonly and indecently expos[ing] his person”); State v. Wymore, 98 Idaho 197, 560 P.2d 868, 869-70 (1977) (holding that a statute barring a person from “publicly exposing] his person or his genitals” does not reach obscene gestures and comments where the accused did not expose his private parts).

This case is not about a disagreement over whether Moses’s acts were rude, disgusting, or indecent. It also is not about freeing a pedophile. Moses is serving a ten-year sen*577tence, with four years suspended on various conditions, for the felony of taking indecent liberties with a child pursuant to Code § 18.2-370. Further, the prosecutor obviously selected among the various other statutes under which Moses could have been prosecuted in deciding how to proceed. See, e.g., Code § 18.2-67.3 (proscribing aggravated sexual battery); Code § 18.2-67.4 (proscribing sexual battery); Code § 18.2-370(1) (proscribing indecent liberties with children); see also Code § 18.2-26 (proscribing attempts to commit noncapital felonies); Jaime, 236 A.2d at 475-76 (holding defendant’s “shaking his hand in his pelvic region” and exposing white underpants did not violate indecent exposure statute but might amount to disorderly conduct). If any gaps exist in the types of behavior the various statutes proscribe, it is the job of the legislature, not the courts, to fill those gaps. See, e.g., United States v. Statler, 121 F.Supp.2d 925, 927 & n. 6 (E.D.Va.2000) (holding “there is little doubt that masturbation in a public bathroom, if proven, fits well within the federal regulation proscribing ‘a display or act that is obscene’ ” but emphasizing that the federal regulation is “broader than ... the Virginia indecent exposure statute” because the Virginia statute “requires a display or exposure of parts of one’s body [whereas the federal regulation] does not” (emphases added)); see also Ohio Rev.Code Ann. § 2907.09 (2004) (proscribing public indecency, which it defines to include “recklessly” “(1) [e]xpos[ing] his or her private parts, or engaging] in masturbation; (2) [e]ngag[ing] in sexual conduct; [or] (3) [e]ngaging in conduct that to an ordinary observer would appear to be sexual conduct or masturbation”); Duvallon v. District of Columbia, 515 A.2d 724, 725 n. 1 (D.C.1986) (analyzing conviction for indecent exposure under statute making it unlawful “for any person or persons to make any obscene or indecent exposure of his or her person, or to make any other lewd, obscene, or indecent sexual proposal, or to commit any other lewd, obscene, or indecent act” (emphases added)); State v. Ovitt, 148 Vt. 398, 535 A.2d 1272, 1275-76 (1986) (under statute proscribing “open and gross lewdness and lascivious *578behavior” without further defining that offense, holding evidence sufficient to support conviction where defendant masturbated publicly through clothing but did not expose his genitals).

Thus, the dispositive issue in this case is whether Moses’s behavior constituted “an obscene display ... of his person, or the private parts thereof’ or “an obscene ... exposure of his person, or the private parts thereof,” analogizing to the common law definition of that offense. Absent proof that either of the girls saw or was reasonably likely to have seen Moses’s genitals, at least partially uncovered, the evidence was insufficient to support the convictions under the particular statute at issue in this case, regardless of the intent with which Moses acted.7 It is our job to interpret and apply the laws the *579legislature has enacted.8 For these reasons, we reverse both misdemeanor convictions.

Reversed and dismissed.

. We do not describe the evidence supporting the felony conviction because those events occurred on a separate occasion and are not germane to the issues on this appeal. Furthermore, because Moses does not challenge the sufficiency of the evidence to prove he acted intentionally, we also need not review as an issue on appeal that aspect of the misdemeanor convictions.

. No evidence established that Moses's covered penis was visible in outline form through his clothing in either of the incidents at issue. Thus, we need not consider whether such behavior would constitute a "display or exposure” in violation of Code § 18.2-387.

. Indecent exposure “[sjtatutes have generally adopted the common law requirements of the offense of indecent exposure; to convict someone of indecent exposure, there must be shown a wilful and intentional exposure of the private parts of the body.” 50 Am.Jur.2d Lewdness, Indecency, and Obscenity § 17, at 291-92 (1995). Thus, courts typically have held that "[i]ndecent exposure at common law consists of exposure in public of the entire person or of parts that should not be exhibited.” State v. Chiles, 53 Wash.App. 452, 767 P.2d 597, 599 (1989); see also Massicot, 118 Cal.Rptr.2d at 713.

. An analogy between the use of the term "display” in the indecent exposure statute and Code § 18.2-53.1, which proscribes "display[ing]” a firearm in a threatening manner during the commission of certain felonies, is inapt for two reasons.

First, the Virginia cases construing the firearms statute to hold a weapon was displayed to a victim through a sense other than actual sight involved the sense of touch. See, e.g., Cromite v. Commonwealth, 3 Va.App. 64, 67-68, 348 S.E.2d 38, 40 (1986) (involving a robber who approached the victim with his hand in his pocket and "stuck something ['hard'] in his stomach ... that ‘felt ... like a pistol’ ”). Here, Moses's conduct did not involve tactile experiences. Rather, they involved only vague visual manifestations not proved sufficient to show even the outline of a penis beneath his trousers. See supra footnote 2.

Second, the evils at which the two statutes are directed are entirely different. The presence of a firearm as an aid to a felony may be just as effective even where the firearm is not displayed visually; one need not see a firearm in order to be motivated by fear of the potential harm it represents. See Cromite, 3 Va.App. at 67-68, 348 S.E.2d at 40. In the case of indecent exposure, however, the core of the offense is just that— the exposure itself, coupled with the related shock and embarrassment, Massicot, 118 Cal.Rptr.2d at 711-12, rather than the fear that it represents some intent to do physical harm to the victim. Other statutes criminalize sexual behavior that threatens direct physical con*575tact or harm. As a result, what it means to display a firearm during the commission of a felony has little or no relevance to determining what types of displays violate the indecent exposure statute.

. See supra footnote 2.

. Citing Wicks and Siquina, the dissent suggests that we do not need to have an actual display of a person’s genitalia in order to find conduct sufficient to convict for indecent exposure under Code § 18.2-387. The facts in Wicks showed, however, that while the police officer "could not be certain that he had actually seen the defendant’s organ because his hand was covering it,” the officer did testify that he saw the defendant "holding his hand in front of his trousers and ... urinating” as he walked. 215 Va. at 275 n. 1, 208 S.E.2d at 754 n. 1. Thus, the defendant’s conduct supported an inference beyond a reasonable doubt that the defendant’s genitalia was actually exposed. Furthermore, in Siquina, while the child did not see the defendant’s genitalia, the child's mother saw the defendant in the bathroom with her child and saw the defendant's erect penis. 28 Va.App. at 697, 508 S.E.2d at 352. Although Siquina dealt with Code § 18.2-370, taking indecent liberties with a child, the facts also showed that actual exposure of genitalia did occur.

. Although the dissent contends otherwise, our present holding, in conjunction with existing case law, does not compel the conclusion that a female swimmer wearing a thong bathing suit violates the indecent exposure statute whereas a man masturbating beneath his trench coat does not. The indecent exposure statute requires both a proscribed act and a particular intent. Our decision in Hart involved not a swimmer at the beach but a man in an office supply store who wore Velcro shorts which he dropped to reveal a “real skimpy,” "form-fitting” “G-string” that showed the outline of his penis and provided no coverage for his remaining pubic area and buttocks. 18 Va.App. at 78, 441 S.E.2d at 706-07. We held Hart violated the statute not only because his choice of attire "constituted 'an exposure of his person, or the private parts thereof,’ ” by exposing his groin and buttocks, but also because his behavior, including his suggestive statements to the store clerk about his G-string and shorts, his delay in putting his shorts back on, and his return to the store wearing the same shorts six days later, indicated an intent to make "an obscene display or exposure.” Id. at 79-80, 441 S.E.2d at 707-08.

Thus, under Hart, a sunbather wearing a G-string swim suit at the beach might violate the "exposure” portion of the statute, but more would be required to prove she acted with the requisite intent. In the case of a man masturbating in obvious fashion beneath his trench coat without exposing his person or private parts to public view, just the reverse would likely be true—the evidence would establish that his behavior was obscene but would not establish the requisite exposure of his person or private parts. The possible existence of a gap in the statutes proscribing obscene and lewd behavior does not permit the judiciary to expand the scope of the offense of indecent exposure beyond its statutory and common law bounds.

. If, as the dissenter posits, Moses's case involves "a pedophilef’s] masturbating in front of a young child as he tries to talk her into being his next victim,” that was a matter for the Commonwealth to consider in determining what offenses to charge. The failure to charge under the appropriate statute does not justify our upholding Moses’s convictions for two counts of an offense the evidence does not prove he committed.