Mesen v. State
| Citation | 271 So.3d 164 |
| Decision Date | 03 May 2019 |
| Docket Number | Case No. 2D16-4971 |
| Parties | Juan MESEN, a/k/a Juan Oscar Mesen, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Chris Westmoreland, Clearwater; and Donald J. Kilfin of The Kilfin Law Firm, P.C., St. Petersburg, for Appellant.
Ashley Moody, Attorney General, Tallahassee, Susan D. Dunlevy, Assistant Attorney General, and Helene S. Parnes, Senior Assistant Attorney General (substituted as counsel of record), Tampa, for Appellee.
Juan Mesen appeals his conviction and sentence for lewd or lascivious exhibition in the presence of an elderly or disabled person. He argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to introduce sufficient evidence to prove that he exposed his genitals to the victim because there was no testimony that his genitals were visible. We agree and reverse.
On October 1, 2013, two employees were driving back to a nursing facility following their lunch break when they saw Mr. Mesen with a woman in a wheelchair on a sidewalk just past the facility's private driveway. This area was not visible from the facility. They circled back to get another look at the situation and ultimately parked across the street. They saw Mr. Mesen's pants unzipped and the victim's arm extending into his pants, moving back and forth, but they could not see the victim's hand. His pants were not pulled down; they may have been unbuttoned but were definitely unzipped. Neither witness saw his genitals.
Mr. Mesen denied any wrongdoing, claiming that he took the elderly dementia patient off-site so she could get some fresh air and sunshine. He said that he had been doing range-of-motion exercises with her, like the ones that he did with his wife, who was also a resident at the facility. He said that his fly was down because he had been experiencing urinary issues, including leakage and the frequent urge to relieve himself. Three months prior to the incident, he visited his urologist complaining of those symptoms. Although an investigating officer testified that Mr. Mesen initially said nothing happened with the victim that could have been misconstrued by the witnesses, Mr. Mesen subsequently admitted to the officer that the victim touched him on her own, reaching out and squeezing a fist over his genitals while his pants were on before he immediately stepped back.
The State charged Mr. Mesen with two crimes arising out of this incident—lewd or lascivious battery upon an elderly or disabled person, in violation of section 825.1025(2)(a), Florida Statutes (2013), and lewd or lascivious exhibition in the presence of an elderly or disabled person, in violation of section 825.1025(4)(a). Notably, Mr. Mesen was not charged with lewd or lascivious molestation of an elderly or disabled person. That crime is limited to cases in which the defendant intentionally touches the victim's breasts, genitals, genital area, buttocks, or the clothing covering those areas, in a lewd or lascivious manner; it does not encompass the converse—the victim touching the defendant. See § 825.1025(3)(a).
" ‘Lewd or lascivious exhibition in the presence of an elderly person or disabled person’ occurs when a person, in the presence of an elderly person or disabled person," "knows or reasonably should know that the elderly person or disabled person either lacks the capacity to consent or fails to give consent to having such act committed in his or her presence" and:
§ 825.1025(4)(a) (emphasis added).
Mr. Mesen stipulated that the victim was elderly or disabled and that he knew or reasonably should have known that she lacked the capacity to consent. He moved for a judgment of acquittal on both counts. The trial court granted his motion as to the lewd or lascivious battery count, finding no evidence that Mr. Mesen encouraged, forced, or enticed the victim to engage in sexual activity, which is defined as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object." § 825.1025(1). However, the trial court denied the motion as to the second count, lewd or lascivious exhibition in the presence of an elderly person or disabled person. The jury found Mr. Mesen guilty, and the trial court denied his renewed motion for judgment of acquittal.
A denial of a motion for judgment of acquittal is reviewed de novo. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002). Statutory interpretation is a question of law also subject to de novo review. Acevedo v. State, 218 So.3d 878, 879 (Fla. 2017). A claim of insufficient evidence fails as long as "there is substantial competent evidence to support the verdict and judgment." Spinkellink v. State, 313 So.2d 666, 671 (Fla. 1975). The State contends in its brief that the "exposes" element of lewd or lascivious exhibition can be satisfied by the inference that the defendant exhibited his genitalia to the victim "through her sense of touch" by "situating his groin area extremely close to her and well within her reach and unzipping his shorts," allowing her to place her hand on his genitals—"whether directly or on top of his underwear."
Courts must afford statutory language "its plain and ordinary meaning, giving due regard to the context within which it is used." Hampton v. State, 103 So.3d 98, 110 (Fla. 2012) ; see also Brittany's Place Condo. Ass'n, Inc. v. U.S. Bank, N.A., 205 So.3d 794 (Fla. 2d DCA 2016). A reasonable reader would understand "exhibition" by "exposure" to require that the defendant's genitals are visually observable—an ordinary meaning of those words that is all the more reasonable in light of their context in section 825.1025(4). Common uses of the word "expose" that do not entail visibility—e.g., exposure to radiation, exposure to the elements—might cast a scintilla of doubt on this interpretation but not after considering the other language of section 825.1025 and the language of related statutes. Here, the word "exposes" cannot be understood to mean the mere exposure of covered genitals to another's touch. Cf. Ware v. State, 124 So.3d 388, 391 (Fla. 1st DCA 2013) ().1
The State argues that the "victim was exposed to Mesen's genitals via her hand, which was placed in his genital area beneath his outer clothing." The fact that the victim had her hand in the defendant's pants is merely incidental to what is proscribed by the statute, which criminalizes actions taken by the defendant, not the inducement of an action taken by the victim. The evidence supports only one action alleged to have been taken by the defendant: unzipping his fly within reach of a victim who is disabled or elderly, so as to place his genitals within reach of her touch without making them visible.
The State's contention that this conduct is within the meaning of "exposes" in section 825.1025(4) lacks intuitive sense in light of the language of the statute itself. Section 825.1025(4) contains a list of alternative acts, commission of any of which would constitute commission of the crime. The statute insists that these acts take place "in the presence" of the victim—a qualifier inconsistent with a crime that entails physical contact with the victim (which would necessarily have to be committed in the victim's presence) but consistent with an interpretation of "exposes" that involves actions intended to be observed by the victim. Id.
The State's interpretation of section 825.1025(4) is further undermined by a reading of that statute in pari materia with section 800.04, Florida Statutes (2013). Courts are required "to construe related statutes together so that they illuminate each other and are harmonized." McGhee v. Volusia County, 679 So.2d 729, 730 n.1 (Fla. 1996) ; see also Anderson v. State, 87 So.3d 774, 777 (Fla. 2012) (). These almost identical statutes relate to the same subject matter—the protection of vulnerable populations from lewd or lascivious conduct.
Section 800.04 protects minors and contains a lewd or lascivious exhibition provision nearly identical to the one pertaining to disabled and elderly victims. § 800.04(7). It also contains a similar provision relating to lewd or lascivious molestation, with one significant exception: it criminalizes forcing or enticing a minor to touch the perpetrator in addition to the intentional touching of a minor by the perpetrator. Compare § 800.04(5)(a) , with § 825.1025(3)(a) (). See also Sanders v. State, 101 So.3d 373, 375 (Fla. 1st DCA 2012) () by touching the victim in the proscribed manner, or...
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