State v. Bouse

• Decision Date: 19 October 2004
• Docket Number: No. WD 62344.,WD 62344.
• Citation: 150 S.W.3d 326
• Parties: STATE of Missouri, Respondent, v. Clarence K. BOUSE, Appellant.
• Court: Missouri Court of Appeals

150 S.W.3d 326

STATE of Missouri, Respondent, v. Clarence K. BOUSE, Appellant.

No. WD 62344.

Missouri Court of Appeals, Western District.

October 19, 2004.

Motion for Transfer Denied November 23, 2004.

Application for Transfer Denied December 21, 2004.

James R. Wyrsch, Kansas City, MO, Christopher McHugh, Wichita, KS, for appellant.

Jeff A. Mittelhauser, Sedalia, MO, for respondent.

PAUL M. SPINDEN, Judge.

For his transmitting a series of six photographs of his penis via the Internet to a person whom he thought was less than 14 years of age, the circuit court entered judgment against Clarence K. Bouse convicting him of three counts of attempted sexual misconduct involving a child. Bouse appeals, asserting that the state did not present sufficient evidence. He contends that, as defined by § 566.083, RSMo 2000, his exposure of his penis via photographs was not sexual misconduct involving a child — he would have had to expose his penis in the physical presence of his would-be victim. We disagree. Applying the plain and ordinary meaning of the statute's language leads us inescapably to the conclusion that Bouse was guilty of attempted sexual misconduct involving a child, and we affirm the circuit court's judgment.

In early November 2001, in an attempt to identify and to locate people who would victimize children, Sheriff Steve Cox of Livingston County posed in an Internet "chat room"¹ as Carrie. Bouse began "chatting" with Cox who identified himself as a 13-year-old girl in the seventh grade. During the next several days, Cox, posing as Carrie, exchanged e-mail messages with Bouse and spoke online via "instant messaging."² Their correspondence often discussed sexual subjects. On November 11, 2001, Bouse sent an e-mail to Carrie and attached three pictures of his penis. Later that day, he sent another e-mail with two more pictures of his penis. The next day, Bouse e-mailed Carrie again, attaching another picture of his penis.

Bouse made plans with Carrie to meet so that they could engage in sex. He also e-mailed several pictures of unidentified couples engaging in sexual activity. Bouse and Carrie eventually made plans to meet at a motel on November 16, 2001, and on November 19, 2001. Bouse, however, never showed up at the motel on either of the planned dates.

The state charged Bouse with two counts of attempt to commit statutory rape in the first degree, two counts of attempt to commit statutory sodomy in the first degree, and three counts of attempt to commit sexual misconduct with a child. Bouse waived a jury trial. At the conclusion of the state's evidence, the circuit court granted Bouse's motion for judgment of acquittal on the attempted statutory rape and attempted statutory sodomy counts. The circuit court found Bouse guilty of three counts of attempted sexual misconduct with a child.

Bouse asserts that the evidence was insufficient to prove that he attempted to commit sexual misconduct with a child. We disagree.

A person commits the crime of sexual misconduct involving a child if he:

(1) Knowingly exposes [his] 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; [or]

(2) Knowingly exposes [his] 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[.]

Section 566.083. The "north star" of navigating interpretation of statutory law is to discern the General Assembly's intent by applying the plain and ordinary meaning of a statute's words. Spradlin v. City of Fulton, 982 S.W.2d 255, 258 (Mo. banc 1998). In the absence of a statutory definition," `[t]he plain and ordinary meaning of a word is derived from the dictionary.'" State ex rel. Nixon v. QuikTrip Corporation, 133 S.W.3d 33, 37 (Mo. banc 2004) (quoting Hemeyer v. KRCG-TV, 6 S.W.3d 880, 881 (Mo. banc 1999)).

The dictionary definition of "expose" is:

1 a: to lay open (as to attack, danger, trial, or test): make accessible to something that may prove detrimental: deprive of shelter, protection, or care (him to the weather) (troops needlessly) (a coast exposed to severe gales) b: to submit or subject to an action or influence ( children to good books) (think ... they can arrest the fall of rain by exposing it to a boulder — J.G.Frazer) (a man to new impressions); specif: to subject (a sensitive photographic film, plate, or paper) to the action of radiant energy c: to abandon (an infant) esp. by leaving in the open: DESERT (the foundation of lying-in hospitals and orphanages ... kept the children alive, ... prevented them being exposed — J.H.Plumb) 2: to lay open to view: lay bare: make known: set forth: EXHIBIT, DISPLAY (exposing a sun-tanned back) (each had started exposing his views — F.M.Ford) (the new display object is to the package — Printers' Ink): as a: to offer publicly for sale (all of which I shall for sale at public auction — Detroit Law Jour.) — sometimes used with to (the markets at which the corn, the cattle, the wool ... of the surrounding country were exposed to sale — T.B.Macaulay) b: to exhibit (a religious relic or the Host) for public veneration c: to reveal the face of (a playing card) — used chiefly in games in which such exposure is contrary to the rules d: to conduct (oneself) as an exhibitionist 3 a: to disclose or reveal the faults, frailties, or unsoundness of: bring to light (as something criminal or shameful): UNMASK took a leading part in exposing the pretensions of this quack) (has behaved like a cad and ought to be exposed — Kingsley Martin) ( a voting fraud) ( the abuses of the day — John Mason Brown) b obs: RIDICULE, SATIRIZE syn see SHOW.

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 802 (1993).³ Under the dictionary definition, "exhibit" and "display" are synonyms of "expose."

Particularly noteworthy is the dictionary's not qualifying its definition of "expose" with any means or mode. In the plain and ordinary sense of "expose" under the dictionary's definition, one's exposing his or her body — whether a "sun-tanned back" or genitals — would still be an exposure whether it was done in public, in private, in a park, in one's house, by means of a web camera on the Internet, or by means of photographs via the Internet. Hence, Bouse's sending a picture of his bared penis to Carrie was an exposure of his genitals — albeit by photograph rather than in person — in the plain and ordinary meaning of "expose."

The General Assembly also did not seek to qualify its definition of expose with any means or mode, such as requiring that the exposure occur in the victim's presence. Had the General Assembly wanted to make "presence" a requirement for sexual misconduct involving a child, it certainly knew how to do it. Hemeyer, 6 S.W.3d at 885 (Holstein, J., concurring) ("General Assembly has demonstrated that it knows how to provide for the award of attorney's fees in `open records' cases by making specific provision therefore in another subsection of the same statute."); City of Fredericktown v. Bell, 761 S.W.2d 715, 717 (Mo.App.1988) ("section 544.157 indicates that the legislature knows how to create the authority to execute extra-jurisdictional arrests" by omitting language from one version of a statute from a later version). In § 566.093.1(2), RSMo 2000, for example, the General Assembly declares that a person commits the crime of sexual misconduct in the second degree if he "[h]as sexual contact in the presence of a third person or persons under circumstances in which he knows that such contact is likely to cause affront or alarm."⁴ We can safely assume that, had the legislature wanted "presence" to be an element of sexual misconduct involving a child, it would have added it to § 566.083.1 as it did in defining second-degree sexual misconduct in § 566.093.1(2).

Furthermore, a sister jurisdiction, the Court of Appeals of Virginia, ruled in a case "on all fours," that the plain and ordinary meaning of "expose" included an exposure on the Internet as well as in a public park. Brooker v. Commonwealth, 41 Va.App. 609, 587 S.E.2d 732 (2003). The Brooker court equated the electronic transmission of images via a web camera with a public place or actual presence although Virginia common law required that the exposure be committed in a public place or in the victim's actual presence. Id. at 736.⁵

Bouse admitted that he knowingly and intentionally sent photographs of his penis to Carrie, whom he thought was less than 14 years old, knowing that Carrie was likely to see them. He specifically directed his exposure to a child whom he thought was less than 14 years of age. This is an important distinction. Bouse did not expose his genitals in an explicit film or in a magazine clearly marked for adults only. He cannot, and does not, argue that he did not know that his penis may be viewed by a child less than 14 years of age. He specifically wanted to expose his penis by means of a photograph to Carrie whom he thought was less than 14 years of age.

Central to Judge Lowenstein's dissent is the rule of lenity. This, however, is not a proper case for employing the rule of lenity. This rule mandates that all ambiguity in a criminal statute be resolved in the defendant's favor. State v. Harper, 855 S.W.2d 474, 479 (Mo.App.1993). But, for it to apply, an ambiguity must be present.

We find no ambiguity in § 566.083.1. Simply and in straightforward fashion it prohibits one from knowingly exposing his genitals in a manner that a reasonable adult would believe was likely to cause affront or alarm to a child less than 14 years of age. Consistent with the dictionary's definition of "expose," the General Assembly recognized in the phrase, "in a manner," that exposure can occur in various manners, including photographs sent via the Internet. Hence, the rule...