Moses v. Commonwealth

KELSEY, J.,

dissenting.

I.

On August 4, 2001, the defendant—an admitted pedophile— approached a 10-year-old girl at a Wal-Mart.9 The defendant came up to the girl and said: “You’re a real pretty girl.” She said “thank you” and walked away. He followed. “You look a lot like my granddaughter,” he added. The defendant then asked her if she would “like to see a picture” of his granddaughter. Without waiting for a response, he showed her a photo of a young woman performing oral sex with a man. “Do you want to do it?” the defendant asked. “I’ll give you $20.” The girl ran to her mother, crying hysterically.

On August 8, 2001, the defendant walked up to a 10-year-old girl at a Kmart. While he masturbated in front of the child, he told her she was “very beautiful.” The child saw his hand “through his pants” exercising his penis. Pale with fright, the child later told her mother what happened.

On December 4, 2001, the defendant stalked an 11-year-old girl at a Wal-Mart. He made eye-contact with the child and *580passed her in the aisle several times. As he did so, the defendant masturbated with a hand down his pants while looking directly at her. During a brief moment while the child’s mother spoke with a friend, the defendant approached the girl. He told her she was a “pretty girl” and asked her how her “butt felt.” The child ran to her mother confused and upset.

After his arrest, the defendant admitted he showed the lewd photo to the first child and solicited oral sex from her. He also admitted the other two incidents. According to him, he used a similar modus operandi about 40 to 50 times with young girls. It “Mnda became a habit.” He showed the same photo to “probably half a dozen” young girls. This pattern of behavior, he confessed, began about four months earlier when for “some unknown reason” he approached a young girl and told her “she was very attractive.” The girl walked away after he offered to “take her back to [his] cabin” in the mountains.

The following week he stayed at a friend’s home. “I found myself walking in my sleep,” he recounted, and slept-walked into “my buddy’s daughter’s bedroom.” Thereafter, the defendant began to frequent Wal-Mart and Kmart because “[t]hat’s where the crowd is and where you can wander around and look at people.” “It became a method of letting off steam,” he explained, “because I had no other sexual outlet.” He went to several public libraries for the same purpose. His underlying problem, the defendant said, was the “need to fulfill my sex drive.”10

*581After reviewing the defendant’s sex offender evaluation, the trial judge found the defendant to be a sexual “predator” and concluded that “the least I can do in this case is to try to prevent you from committing these crimes again by incarcerating you.” Convicted of one count of taking indecent liberties with a child under Code § 18.2-370 and two counts of indecent display or exposure under Code § 18.2-387, the defendant appeals only his latter two convictions.

II.

The majority opinion holds that the defendant’s public masturbation, as a matter of law, does not violate Code § 18.2-387. Such behavior can only offend the statute, the majority reasons, if the masturbation takes place at least partly in the nude. Without explanation, however, the opinion leaves open the possibility (one inconsistent with its holding) that the statute may also forbid fully clothed masturbation where “the outline form” of the penis can be discerned “through his clothing.” Ante at 571 n. 2 & 575 n. 5, 600 S.E.2d at 165 n. 2 & 167 n. 5 (cross-referencing n. 2). I find both the holding, as well as its caveat, to be just the kind of “curious, narrow, or strained construction” of a statute, Melanson v. Commonwealth, 261 Va. 178, 183, 539 S.E.2d 433, 435 (2001), that we should faithfully avoid.

Under the majority’s interpretation, a man sitting on a boardwalk bench at the beach could masturbate under his trench coat—in a way that brazenly reveals what he is doing to every passerby—and not display or expose his “person” under Code § 18.2-387. But a swimmer wearing a thong bathing suit arguably would. See, e.g., Hart v. Commonwealth, 18 Va.App. 77, 80, 441 S.E.2d 706, 708 (1994) (exposure of “buttocks” and “pubic area,” while wearing a “G-string” swim suit, violates indecent exposure statute).11 In the first *582example, the man displays sexual activity obvious to all. In the second, the swimmer displays no sexual activity of any nature. Yet the swimmer, not the masturbator, has a greater risk of violating the display-or-expose element of Code § 18.2-387.12

Equally incongruent is that the children in our case actually saw the defendant masturbating. He was, after all, standing right in front of them. His obscene display was considerably more communicative than the statute requires. Under existing precedent, indecent exposure in a public place can occur even if no one in fact observes it—so long as it could have been observed had someone been looking. See Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 754-55 (1974) (noting that, if the exposure likely could be seen, it is irrelevant “whether actually seen by a single person or by several” because it still “is an act of ‘gross and open indecency, injurious to public morals’ ” (citation omitted)); Siquina v. Commonwealth, 28 Va.App. 694, 697-99, 508 S.E.2d 350, 352-53 (1998) (holding that, under the indecent liberties statute, “whether an object is actually seen by its intended audience is *583irrelevant to whether that object has been exposed”). Under the majority view, therefore, the statute applies to a man who exposes himself only to himself, but not to a man who flagrantly masturbates in plain view of another.

These interpretative anomalies cannot be squared with either the historical context or literal text of Code § 18.2-387. The common law recognized any “open and notorious lewdness” as an indictable offense. 4 William Blackstone, Commentaries on the Law of England *64 (1769). The offense included any “grossly scandalous and public indecency.” Id. Virginia adopted this common law restatement. See William W. Hening, The Virginia Justice 431 (4th ed. 1825) (stating that “in general, all open lewdness, grossly scandalous, is punishable upon indictment at common law”); James M. Matthews, Virginia Criminal Laws 123 (2d ed. 1878) (recognizing crime of “open and gross lewdness and lasciviousness”).

Nudity or near nudity is not, and never has been, the all-important referent. The lewd nature of the conduct itself, if open and notorious, was the main characteristic of the offense. When state legislatures began codifying various subsets of this common law crime, they did not abandon its “open and notorious” characteristic. The history of these codification efforts

leads to one of two possible conclusions about the framers’ intentions with respect to the regulation of sexual intercourse and masturbation. On the one hand, it could be inferred that, because the framers so relentlessly prohibited even as little as public nudity, it necessarily follows that public intercourse and masturbation would have been regarded as even more odious and even more obviously subject to state regulation. On the other hand, it could be inferred that, although the framers understood that public nudity could be regulated, they apparently understood that public nudity while engaged in intercourse or masturbation could not (or that both were permissible as long as the offenders kept their clothes on). Frankly, given the evidence that we have described about antebellum public mor*584als, statutes, and case law, we find the latter possibility to be remote, to say the least.

State v. Ciancanelli, 181 Or.App. 1, 45 P.3d 451, 459 (Or.Ct. App.) (en banc), petition for review allowed, 335 Or. 90, 58 P.3d 821 (2002).

It follows that open and notorious masturbation in a public place, in a manner obvious to all, falls squarely within reach of the common law. See generally Miller v. California, 413 U.S. 15, 25, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973) (noting that patently offensive “representations or descriptions of masturbation” are “obscene”); State v. Maunsell, 170 Vt. 543, 743 A.2d 580, 582-83 (1999) (upholding conviction for “open and gross lewdness” where defendant “massag[ed] his genitals through his pants” in a public place); see also United States v. Statler, 121 F.Supp.2d 925, 927 (E.D.Va.2000) (observing that “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’ ”).

Consistent with this view, Virginia codified a particular type of common law lewdness offense in Code § 18.2-387. Leaving little doubt as to its intentions, the General Assembly criminalized the “obscene display or exposure” of one’s “person, or the private parts thereof’ in a public place. Id. (emphasis added). As has been often said: “Words in a statute should be interpreted, if possible, to avoid rendering words superfluous.” Cook v. Commonwealth, 268 Va. 111, 114, 597 S.E.2d 84, 86 (2004) (emphasis added); Zhou v. Zhou, 38 Va.App. 126, 136, 562 S.E.2d 336, 340 (2002) (observing that “basic canons of statutory construction” exclude interpretations rendering statutory language “superfluous”). The question, then, is whether it is possible to do so in this case. I think so.

The majority opinion interprets the word “exposure” to mean nudity and “display” to mean nothing more. The disjunctive thus becomes a redundant conjunctive. No Virginia case has ever interpreted this statute in this manner. And for good reason: Unless the word “display” is superfluous, it must mean something different from “exposure.” If “exposure” can *585only mean some degree of nudity, then “display” necessarily means something different. And so it does. Among the definitions of “display” in ordinary speech (particularly where, as here, it is used as a noun rather than a verb) is the “demonstration or manifestation of something.” American Heritage Dictionary 407 (2d coll, ed.1985).13 It is just that definition we give to the word “display” when used in other provisions of the Virginia Code.

For example, Code § 18.2-53.1 criminalizes the “display” of a firearm while committing a felony. A robber can effectively “display” a firearm in his pocket even though completely hidden from view. Cromite v. Commonwealth, 3 Va.App. 64, 67, 348 S.E.2d 38, 40 (1986). The word “display” means “not only the notion of spreading before view or exhibiting to the sight, but also that which is manifested to any of a victim’s senses.... ” Id. (quoting State v. Smallwood, 346 A.2d 164, 167 (Del.1975)). “Thus a weapon may be manifested to a victim even though he may not see it” because the ability to otherwise discern the weapon’s presence itself is a manifestation “just as effective, for the statutory purpose, as putting a gun in plain view.” Id.; see also Deshields v. State, 706 A.2d 502, 507 (Del.1998) (finding that robber “displays” a weapon by putting his hand in his pocket and then handling the weapon); People v. Butts, 181 A.D.2d 432, 580 N.Y.S.2d 758, 758 (N.Y.App.Div.1992) (holding that robber displays a weapon by putting his hand inside his jacket and asking victim if it would “make a difference” if he had a gun).14

*586The majority finds none of this persuasive, concluding instead that the meaning of “display” has been foreclosed by prior Virginia cases. The three Virginia cases cited by the majority, however, do not mention or discuss the word “display” as used in Code § 18.2-387. See, e.g., Wicks, 215 Va. at 276, 208 S.E.2d at 754 (interpreting local ordinance stating that no “person shall indecently expose himself’ (emphasis added)); Noblett v. Commonwealth, 194 Va. 241, 72 S.E.2d 241 (1952) (affirming a conviction on an indictment alleging that the defendant exposed himself); Siquina, 28 Va.App. at 697-99, 508 S.E.2d at 352-53 (interpreting the indecent liberties statute, which forbids exposing one’s sexual or genital parts to a child). They instead focus entirely on the meaning of “expose.”

Under Virginia law, stare decisis does not “foreclose inquiry” into an issue not previously “raised, discussed, or decided.” Chesapeake Hosp. Auth. v. Commonwealth, 262 Va. 551, 560, 554 S.E.2d 55, 59 (2001); see also Finnerty v. Thornton Hall, Inc., 42 Va.App. 628, 639-40, 593 S.E.2d 568, 574 (2004). The majority’s holding, therefore, cannot be justified as a necessary application of settled precedent.

Even so, I see a deeper problem with the majority’s singular focus on cases interpreting the word “expose.” From a logical point of view, the entire discussion begs the question. Every visible exposure of one’s genitals will necessarily involve a display of one’s genitals. The former concept, by definition, subsumes the latter. (That’s why Black’s Law Dictionary defines “exposure” to include “display.” Ante at 572, 600 S.E.2d at 166.) But that does not prove the reverse: that every display necessarily includes an exposure. Hence, a robber can still display a handgun in his pocket while not exposing it to sight. (Which explains why Black’s Law Dictionary nowhere defines “display” to include “exposure.”) This non sequitur permeates the majority’s reasoning. And it was just this misunderstanding, I believe, the General Assembly sought to avoid by conspicuously using the disjunctive “display or exposure” formulation in Code § 18.2-387.

*587Finally, the majority opinion contains a curious caveat. The opinion’s ratio decidendi collapses together the words display and exposure, treating them as exact synonyms. But in dicta the majority says it “need not” decide whether its interpretation of Code § 18.2-387 would criminalize non-nudity in cases where the “outline” of the penis could be discerned underneath the defendant’s clothing. Ante at 571 n. 2 & 575 n. 5, 600 S.E.2d at 165 n. 2 & 167 n. 5 (cross-referencing n. 2). This caveat attempts to keep alive the remark in Hart, 18 Va.App. at 78, 441 S.E.2d at 706, which found legal significance in the fact that the “outline” of the defendant’s penis could be discerned underneath his clothing.

I do not think the majority can have it both ways. If display means exposure, and exposure means some degree of nudity, then a masturbator who keeps his pants on cannot be convicted as a matter of law—no matter how much his penis distorts the outer contours of his clothing. I thus do not understand how it can be said by my colleagues that they “need not” decide this point. Ante at 571 n. 2, 600 S.E.2d at 165 n. 2. It seems to me they already did.

The majority apparently believes, however, its interpretation of the statute would not necessarily foreclose a conviction in this case if the two girls had simply said they could discern the “outline” of the defendant’s penis underneath his clothing. If so, I do not see any principled basis to draw the line there. If the statute applies to a victim seeing the “outline” of the defendant’s penis through his clothes, it should be no less objectionable that the victim similarly sees the outline of the defendant’s hand masturbating his non-outlined penis. The visual assault in the latter scenario is arguably more obscene than in the former.

III.

Sitting as factfinder, the trial judge found the defendant’s public masturbation to be an “obscene display or exposure” of his “person, or the private parts thereof’ in violation of Code § 18.2-387. The issue on appeal is whether “any rational trier *588of fact” could have come to this conclusion. Seaton v. Commonwealth, 42 Va.App. 739, 747, 595 S.E.2d 9, 13 (2004) (emphasis in original and citations omitted). The question answers itself. To be sure, I can think of few things more obscene than a pedophile masturbating in front of a young child as he tries to talk her into being his next victim.

I respectfully dissent.

. On appeal, we should review the evidence in the "light most favorable” to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). "That principle requires us to 'discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.' ” Seaton v. Commonwealth, 42 Va.App. 739, 743, 595 S.E.2d 9, 11 (2004) (citation omitted).

. I disagree with the majority that this contextual evidence has no legal relevance. It has direct bearing for it establishes the defendant's mens rea—the subjective intent underlying his criminal conduct. See, e.g., Hart v. Commonwealth, 18 Va.App. 77, 80, 441 S.E.2d 706, 707-08 (1994) (holding that, under Virginia’s indecency statute, the defendant's statements to the victim "aided in establishing his intent in acting as he did”). These facts also refute the implicit suggestion that, perhaps, the defendant was merely "adjusting himself” (as that phrase was used by an 11-year old girl speaking to her mother) or the express assertion made by defendant’s counsel on appeal that, maybe, the defendant was *581scratching a patch of “poison ivy.” In finding the defendant to be a sexual "predator,” the trial court no doubt rejected such suggestions.

. The defendant in Hart raised two issues on appeal, arguing that "the evidence was insufficient to show (1) that his behavior constituted ‘an *582exposure of his person, or the private parts thereof' and (2) that his behavior was obscene." Id. at 78, 441 S.E.2d at 706. Hart answered the first question by pointing out that the G-string “covered” the defendant’s "penis and anus" but left his "pubic area and buttocks exposed” to view. Id. at 80, 441 S.E.2d at 708. Hart answered the second question, whether that exposure was obscene, by finding it sufficient that the defendant made crude remarks alluding to sex. Id. at 80, 441 S.E.2d at 708 (finding obscene the defendant’s statement to a saleswoman "What do you think of the whole picture?” and his comment that "he liked his velcro shorts because they 'gave easy access to women who wanted him’ ”).

. It entirely misses the point to observe, ante at 578 n. 7, 600 S.E.2d at 169 n. 7, that to convict the scantily clad swimmer he must also do or say something obscene. The statute requires both: the act of "display or exposure” and circumstances allowing a factfinder to deem that act obscene. Ante at 572 n. 3, 600 S.E.2d at 166 n. 3. In my example, I focus solely on the act, not its lewd characteristics. However, if this case required an examination of the obscenity aspect of the statute, I would agree with the majority that Hart found this element proved by the defendant’s "suggestive statements” about his "G-string and shorts.” See Ante at 578 n. 7, 600 S.E.2d at 169 n. 7.

. This point demonstrates the irrelevance of State v. Jaime, 4 Conn.Cir.Ct. 530, 236 A.2d 474, 475 (1967), and State v. Wymore, 98 Idaho 197, 560 P.2d 868, 869-70 (1977), cited by the majority. Ante at 576, 600 S.E.2d at 168. The indecency laws in both cases only make it unlawful to "expose” the person or private parts. Neither statute goes further and criminalizes the "display” of the person or private parts, as does Code § 18.2-387.

. I see nothing "anomalous” or "absurd,” ante at 574, 600 S.E.2d at 167, about the General Assembly using the "so expose” phrase in the procurement portion of Code § 18.2-387. Nor do I understand how this phrase empties the word "display” of any substantive meaning, leaving it legally immaterial that it is even in the statute.