dissenting.
I respectfully file this dissent. A person commits the crime of sexual misconduct involving a child if the person:
(1) Knowingly exposes the person’s genitals to a child less than fourteen years of age in a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child less than fourteen years of age;
(2) Knowingly exposes the person’s genitals to a child less than fourteen years of age for the purpose of arousing or gratifying the sexual desire of any person, including the child[.]
§ 566.083.
Bouse argues that he could not have committed the offense, since he did not expose his genitals as contemplated by the statute. Bouse states that sexual misconduct involving a child is essentially the crime of indecent exposure modified to apply when the exposure is to a child. He further states that indecent exposure traditionally meant actual in-person exhibition of a person’s genitals. Therefore by analogy, Bouse claims that he cannot be convicted of the charged crime without actually exhibiting his genitals (as opposed to a *337photograph or a picture of his genitals) in the presence of the victim.1
This court should resist the temptation to read the words, “or photographs of the person’s genitals” into the two subsections of Section 566.083. Only by reading those words into the statutory language can it be clearly determined that the legislature intended to make a felony of the conduct charged here. However, “common sense and evident statutory purpose” cannot be used to create, and then to “dispel any remaining ambiguity” in this criminal statute. The defendant here took pictures of his genitals and transmitted the pictures via the Internet. Section 566.083 does not criminalize this conduct. The most that can be said of this statute is that an ambiguity exists as to whether the conduct here fit the words of the law, and if that is the case, then according to law, all doubts must be resolved in favor of the defendant.
Under the rule of lenity, a criminal statute is to be strictly construed against the government and liberally in favor of the defendant. Goings v. Mo. Dep’t of Corrs., 6 S.W.3d 906, 908 (Mo. banc 1999). “Any doubt as to whether the act charged and proved is embraced within the prohibition must be resolved in favor of the accused.” State v. Jones, 899 S.W.2d 126, 127 (Mo.App.1995). “No person may be made subject to a criminal statute by guesswork or mere implication and a criminal statute may not be held to include offenses or persons other than those clearly described and provided for within both the spirit and the letter of the statute.” State v. Fredrickson, 689 S.W.2d 58, 61 (Mo.App.1984).
The State points to several definitions of the word “expose” to establish that there is no ambiguity and that Bouse’s conduct clearly falls within the prohibition of the statute. Some of the definitions offered by the State include: “to make bare; to uncover; to disclose; to set out to view; to lay open to examination.” However, these definitions have been taken out of context. The dictionary used by the State indicates that these definitions refer to exposing a fraud, opinions, or principles, Webster’s New Twentieth Century Dictionary UNAbridged 647 (2d. ed.1970), and not to a physical object such as a person’s genitals. A different edition of Merriam-Webster’s dictionary separately defines “indecent exposure” as the “intentional exposure of part of one’s body (as the genitals) in a place where such exposure is likely to be an offense against the generally accepted standards of decency in a community.” WebsteR’s Third New INTERNATIONAL Dictionary Unabridged 1147 (1993). Furthermore, another dictionary defines “expose” as “to exhibit one’s body, esp. one’s genitals, publicly in an immodest or exhibition-istic manner,” Random House Webster’s Unabridged Dictionary 682 (2d. ed.2001) (emphasis added), which undermines the State’s position that physical presence is not required to indecently expose oneself. Therefore, resorting to the dictionary in this case provides little support for the State’s position.
Another rule of statutory construction is applicable in this case. Where a statute uses words which have a definite and well known meaning at common law, there is a presumption that such words are used in the sense in which they were understood at common law, unless it clearly appears that the legislature did not intend for such a construction to apply. State v. Duggar, 806 S.W.2d 407, 408 (Mo. banc 1991). The word “expose,” in the context of the common law offense of indecent exposure, required a “willful and intentional exposure *338of the private parts ... committed in a public place or a place open to view of the public at large, or under circumstances where anyone present is likely to be offended by it.” 50 Am.Jur. 2d Lewdness, Indecency, and Obscenity § 17 (1995) (citations omitted). Therefore, the common law required the exposure to occur in the actual presence of the victim or in public.
In Missouri, earlier statutes prohibiting indecent exposure, seemingly consistent with the common law, required actual perception of the exposure or the exposure be committed in public whereby others could witness the act. State v. Parker, 738 S.W.2d 566, 569 (Mo.App.1987). The State has conceded that the crime for which Bouse was convicted is essentially an offense of indecent exposure to a child. The fact that indecent exposure at common law had a well-defined meaning weighs against the State’s position, since this court must presume that the legislature enacted this statute with the common law meaning of indecent exposure in mind.2
The State, however, attempts to buttress its position by citing a different statute that punishes sexual misconduct in the second degree. That statute states:
A person commits the crime of sexual misconduct in the second degree if he:
(1) Exposes his genitals under circumstances in which he knows that his conduct is likely to cause affront or alarm; or
(2) Has sexual contact in the presence of a third person or persons under circumstances in which he knows that such conduct is likely to cause affront or alarm.
§ 566.093. The State argues that the “in the presence” language in the second subsection of the statute indicates that when the legislature used the term “expose” without a presence requirement in the first subsection it did not intend to impose such a requirement. Therefore, the State argues, the legislature would have included an explicit presence requirement in the statute prohibiting sexual misconduct involving a minor if it had in fact wanted to do so.
However, the “affront or alarm” language implies the presence of another person. Parker, 738 S.W.2d at 569 (“An act of exposure is not likely to affront decent sensibilities or cause alarm if it is conducted in seclusion away from all possibility of detection.”). It would be surplusage to use “in the presence” with “affront or alarm,” since the latter language presupposes the presence of another person. Therefore, the fact that the legislature excluded a presence requirement in the first subsection of Section 566.093 does not necessarily indicate that the legislature intended that presence not be required in that statute or in the statute for which Bouse was convicted.
Although Bouse’s conduct was reprehensible, this court cannot say that his actions fall within the ambit of Section 566.083. Furthermore, this is not a situation where there is a gap in the law that needs to be addressed. To the contrary, Bouse could have been charged with attempting to furnish pornographic materials to minors.3 It *339is true that the State may proceed under any applicable statute when multiple statutes prohibit the same conduct. State v. Patterson, 849 S.W.2d 153, 155-56 (Mo.App.1993). However, this assumes that there is more than one statute that contemplates Bouse’s conduct. The fact that there is already an existing criminal statute that clearly contemplates this type of scenario is an indication that the legislature did not intend for Section 566.083 to apply here.
Virginia is the only jurisdiction to have previously decided a similar issue. In Brooker v. Commonwealth, 41 Va.App. 609, 587 S.E.2d 732 (2003), the appellant’s conviction for attempting to take indecent liberties with a child4 was affirmed where the appellant “exposed” himself over the Internet to an undercover law enforcement official posing as a twelve-year-old girl.5 The Virginia court’s decision was based on the definition of “expose” found in a dictionary. Id. at 735-36. However, this court is not convinced that resorting to the dictionary definition of expose would necessarily support the State’s position. See supra. Therefore, this court refuses to follow the reasoning found in Brooker.
Although Bouse’s conduct could be denounced as attempting to furnish pornography to a minor that does not mean that his conduct was sufficient to establish attempt liability for sexual misconduct involving a child as set out in Section 566.083. Before criminal penalties may be imposed, there must be a degree of certainty that the statute was intended to prohibit the defendant’s conduct. The fact that there is a reasonable debate as to whether the statutory language contemplated Bouse’s actions illustrates the lack of certainty here. Because this court is constrained by the rule of lenity, it cannot be said that, by sending the pictures, Bouse attempted to violate Section 566.083.
Despite the assertions that a failure to agree with the majority opinion somehow reflects a lack of ability to properly use the dictionary, an inability to properly construe or divine the intent of the legislature, and an inability to properly follow an *340interpretation of a “sister-state,” the fact remains: What is at stake here is the application of a criminal law. Someone’s liberty will be restrained. Instead of a misdemeanor conviction under a statute that clearly describes the underlying facts, the accused here faces a felony conviction under a statute that could not apply without reading the words, “or photographs of the person’s genitals,” into the statute. The rule of lenity was not built on the premise the defendant is a good person or is blameless for uncivilized conduct. The rule of lenity cannot be easily brushed aside because no one condones the accused’s conduct. If the legislature wants to make a felony of the taking a picture of one’s genitals and transmitting that picture over the Internet to a person under the age of fourteen, then it can clearly write such a statute.
. Section 566.083 was enacted in 1997. There are few appellate decisions dealing with this statute, none of which address how the term "expose” is to be construed.
. The State does not argue that the General Assembly intended, in view of the fact that the statute is designed expressly for the protection of children, to use "exposure” in a broader sense than was applicable under the common law of indecent exposure.
. At oral argument, the State conceded that Bouse could have been charged and convicted of attempting to furnish pornography to a minor. § 573.040. That statute states:
A person commits the crime of furnishing pornographic material to minors if, knowing its content and character, he or she: *339(1) Furnishes any material pornographic for minors, knowing that the person to whom it is furnished is a minor or acting in reckless disregard of the likelihood that such person is a minor; or
(2) Produces, presents, directs or participates in any performance pornographic for minors that is furnished to a minor knowing that any person viewing such performance is a minor or acting in reckless disregard of the likelihood that a minor is viewing the performance; or
(3) Furnishes, produces, presents, directs, participates in any performance or otherwise makes available material that is pornographic for minors via computer, electronic transfer, Internet or computer network if the person made the matter available to a specific individual known by the defendant to be a minor, (emphasis added)
. The Virginia statute states: "Any person eighteen years of age or over, who, with lascivious intent, shall knowingly and intentionally ... [e]xpose his or her sexual or genital parts to any child [under the age of fourteen shall be guilty of a Class 5 felony].” Va.Code Ann. § 18.2-370 (1996).
. Brooker had three online conversations with the detective posing as a minor. During the first conversation, Brooker sent two photographs of his genitals. During the second conversation, Brooker removed his pants and transmitted live pictures of himself, exposing his erect penis, via a web camera. During the third conversation, Brooker removed his clothing and again transmitted live images of his penis. Brooker was only convicted of two counts of attempting to take indecent liberties with a child, both counts stemming from the live images he transmitted via web camera. However, it is interesting to note that Brooker was not convicted for the same crime for sending the photographs during the first conversation.