Moses v. Com.

Decision Date10 August 2004
Docket NumberRecord No. 0985-03-3.
Citation43 Va.App. 565,600 S.E.2d 162
PartiesKenneth Samuel MOSES v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

Eric G. Peters, Sr., Lynchburg, for appellant.

Deana A. Malek, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: BENTON, ELDER and KELSEY, JJ.

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 brother. 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 breast-feeding 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 words "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 used 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 "`[e]xposure 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 350, 352-53 (1998), where we construed the portion of Code § 18.2-370, proscribing "knowingly and intentionally `expos[ing] [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 behavior 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...

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4 cases
  • Moses v. Com.
    • United States
    • Supreme Court of Virginia
    • April 12, 2005
    ...A divided panel of our Court agreed with this reasoning and vacated Moses's convictions under Code § 18.2-387. Moses v. Commonwealth, 43 Va.App. 565, 600 S.E.2d 162 (2004). Having this case en banc, we now affirm. We come to this conclusion based upon the common law history of this offense ......
  • Simmons v. T.M. Assocs. Mgmt., Inc., Case No. 3:17–cv–00066
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • February 14, 2018
    ...even if no one in fact observes it—so long as it could have been observed had someone been looking." Moses v. Virginia , 43 Va. App. 565, 582, 600 S.E.2d 162 (2004) (Kelsey, J., dissenting) (collecting cases); see Farhoumand v. Virginia , 288 Va. 338, 347, 764 S.E.2d 95 (2014) (holding simi......
  • Widdifield v. Com.
    • United States
    • Court of Appeals of Virginia
    • August 10, 2004
  • Vallejos-Ayala v. Commonwealth, Record No. 0194-18-4
    • United States
    • Court of Appeals of Virginia
    • December 11, 2018

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