Egal v. State, 84-1937

• Decision Date: 22 May 1985
• Docket Number: No. 84-1937,84-1937
• Citation: 469 So.2d 196,10 Fla. L. Weekly 1303
• Parties: 10 Fla. L. Weekly 1303 Gerard M. EGAL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 196

469 So.2d 196

10 Fla. L. Weekly 1303

Gerard M. EGAL, Appellant, v. STATE of Florida, Appellee.

No. 84-1937.

District Court of Appeal of Florida,

Second District.

May 22, 1985.

James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.

LEHAN, Judge.

We affirm the conviction of this male defendant for committing a lewd and lascivious act in the presence of a female child under the age of fourteen years, a violation of section 800.04, Florida Statutes (1984).

A seven-year-old girl soliciting orders for Girl Scout cookies knocked on the door of defendant's home. Defendant opened the door and stood naked facing the girl. When the girl asked if defendant wanted to buy cookies, defendant answered affirmatively, took an order form from her and went inside while she waited. He reappeared at the door, still naked, and handed her the completed order form and a ten dollar bill, although no money was then owed for the order. The order form was filled out with a fictitious name, address and telephone number. Defendant's private parts were exposed to, and seen by, the girl.

Defendant's testimony, which the jury disbelieved, essentially was that he was alone in the house on the afternoon in question, that the girl did not come to the door, and that her positive identification of him was incorrect--in short, that the incident never happened with him. On appeal, defendant argues that the evidence at trial was insufficient to sustain his conviction.

The term "lewd and lascivious" has been referred to as generally and usually involving "an unlawful indulgence in lust, eager for sexual indulgence." Chesebrough v. State, 255 So.2d 675, 678 (Fla.1971), cert. denied, 406 U.S. 976, 92 S.Ct. 2427, 32 L.Ed.2d 676 (1972); Payne v. State, 463 So.2d 271 (Fla.2d DCA 1984). That term has also been said to connote "wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator." Chesebrough, 255 So.2d at 677, quoting from Boles v. State, 158 Fla. 220, 27 So.2d 293, 294 (1946); Goodmakers v. State, 450 So.2d 888, 891 (Fla. 2d DCA 1984). The term "imports more than a negligent disregard of the decent proprieties and consideration due to others." McKinley v. State, 33 Okl.Cr. 434, 244 P. 208 (Okla.Crim.App.1926), cited by the Florida Supreme Court in Chesebrough for the foregoing general, usual meaning.

As indicated in Chesebrough, which declared section 800.04 constitutional, the legislature has not defined "lewd and lascivious," and it is for the judiciary to apply those words based upon common understanding of them. Chesebrough also noted that "[i]t would be, of course, difficult or impossible to detail in a statute book all the acts which would constitute lewd and lascivious behavior...." 255 So.2d at 678, quoting from Buchanan v. State, 111 So.2d 51 (Fla. 1st DCA 1959). That task would, of course, be no less difficult or impossible in a court opinion. Therefore, a determination of the precise meaning of the words "lewd and lascivious" in particular contexts must be developed on a case by case basis.

Prior cases have held that simply sleeping naked on a dock, apparently without deliberate exposure to others, was not lewd and lascivious, Goodmakers v. State, supra, nor was urinating in a public parking lot, apparently without deliberate exposure to others, Payne v. State, supra, or parading before the state capitol without clothing but with cardboard signs on front and back which avoided substantial exposure of sexual organs, Duvallon v. State, 404 So.2d 196 (Fla. 1st DCA 1981). Those cases were decided under section 800.03 which prohibits indecent exposure. However, the element of lewdness and lasciviousness has been determined to exist under both section 800.03 and 800.04. See Hoffman v. Carson, 250 So.2d 891 (Fla.), appeal dismissed, 404 U.S. 981, 92 S.Ct. 453, 30 L.Ed.2d 365 (1971); Goodmakers v. State, supra. On the other hand, Chesebrough found that exposing a young child to a view of sexual intercourse between his mother and stepfather was lewd and lascivious, as was conduct in Buchanan v. State, supra, which involved fondling and attempted sexual intercourse with a child under thirteen years of age.

Defendant contends that his mere nudity, which was not shown to have been accompanied by gestures or words, cannot be found to be in violation of section 800.04. We disagree. While it is true that in many circumstances mere nudity would not violate the statute, the jury in a case of this kind must also consider the intent of defendant. As explained above, lewd and lascivious has been said to mean "wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator." Chesebrough, 255 So.2d at 677. Thus, conduct which in some circumstances might be purely innocent, such as nudity, can be found to be lewd and lascivious if accompanied by the requisite improper intent. See Faulkner v. State, 146 Fla. 769, 1 So.2d 857 (1941).

In this case, although the evidence did not show that defendant spoke any words or made any motions evidencing an illicit intent, nevertheless the totality of the circumstances was such that the jury could properly have concluded that defendant's conduct violated the statute. One consideration is that defendant appeared at the door twice, and it is clear that defendant knowingly exposed himself in front of the young girl when he returned to the door where the girl was waiting. This factor distinguishes defendant's behavior from conduct in some other cases which was found not to be lewd and lascivious. For example, there was apparently no showing in Goodmakers that the man sleeping naked on the dock knew that anyone else was present and observing him, and there apparently was no showing in Payne that the defendant knowingly exposed himself to others. This factor of intentional exposure to others also distinguishes this case from the situation of a person who happens to be seen through a window while walking nude in his house. See McKinley v. State, supra.

The jury could have concluded from the evidence that defendant knowingly and with intent to do so exposed himself to the young girl. The evidence supported the jury's conclusion that defendant's intent was lewd and lascivious, i.e., wicked, licentious, or unchaste. Lewd and lascivious conduct is not limited to acts involving physical contact, threat thereof or manifested desire therefor. The prevailing, accepted standard of behavior in our society is to keep the private parts of one's body covered when in the presence of strangers. We recognize, as defendant argues, that mores and standards of behavior of our society change and that society's views on exposure of the body are more liberal today than in the not too distant past. As the court noted in State ex rel. Swanboro v. Mayo, 155 Fla. 330, 19 So.2d 883, 884 (1944), "[I]f forty years ago either a man or a woman had donned the apparel popular on our bathing beaches today ... such person would probably have been ... branded as a lewd, lascivious and indecent person." And it is again true, some forty years after that statement was made, that many popular bathing suits of today would no doubt be...