State v. Brown

• Decision Date: 13 March 2012
• Docket Number: No. WD 73280.,WD 73280.
• Citation: 360 S.W.3d 919
• Parties: STATE of Missouri, Respondent, v. Charles Roderic BROWN, Appellant.
• Court: Missouri Court of Appeals

360 S.W.3d 919

STATE of Missouri, Respondent,
v.
Charles Roderic BROWN, Appellant.

No. WD 73280.

Missouri Court of Appeals, Western District.

March 13, 2012.

[360 S.W.3d 921]

Alexa Irene Pearson, Assistant State Public Defender Columbia, MO, for Appellant.

Andrea S. Hayes, Assistant Prosecuting Attorney Columbia, MO, for Respondent.

Before Division II: GARY D. WITT, Presiding Judge, and JOSEPH M. ELLIS and MARK D. PFEIFFER, Judges.

MARK D. PFEIFFER, Judge.

Charles Brown appeals from the judgment of the Boone County Circuit Court (“trial court”) convicting him of misdemeanor sexual misconduct under section 566.093 ¹ following a bench trial. We affirm.

Factual and Procedural Background²

Late in the evening on Friday, April 30, 2010, a twenty-two-year-old woman, A.M.,³ looked out her bedroom window and saw a man, naked from the waist up, masturbating. The man had one leg out of his black running shorts and his genitals were fully exposed. The man was leaning against A.M.'s car, parked on the street in front of her apartment door. A.M. lived with her college-aged female roommate in a building with four duplexes (i.e. eight apartment units). A.M. could see the man “clear as day” because the residential street was so well lit, but she did not think he could see her because her bedroom light was off.

A.M. was alarmed and frightened by the man's conduct and called police and told them what she saw. A detective picked a visibly shaken A.M. up from her apartment; she was taken to identify a man who had been picked up in the neighborhood by police based on the victim's description. She identified the man, Charles Brown (“Brown”), as the man who had been masturbating on the street outside her apartment, and he was charged with second-degree sexual misconduct, a class A misdemeanor, § 566.093.

A.M. testified at Brown's bench trial before the trial court and again identified him as the man she saw masturbating in the street in front of her apartment.

[360 S.W.3d 922]

Brown did not testify or present any evidence. Instead, Brown's trial counsel argued that the State failed to prove that Brown knew the victim or anyone else could see him, and therefore, Brown did not have the requisite intent to cause affront or alarm under section 566.093.

Brown filed a motion for a judgment of acquittal at the close of the State's evidence and again at the conclusion of the trial; both motions were denied by the trial court. The trial court convicted Brown and sentenced him to 120 days in the county jail for the misdemeanor conviction, suspended execution of the sentence, and placed Brown on supervised probation for two years. Brown subsequently violated the terms of probation, and his sentence was ordered to be executed.

Brown appeals.

Point I—Sufficiency of Evidence

In his first point on appeal, Brown argues there was insufficient evidence to convict him of sexual misconduct in the second degree. He claims the State failed to present evidence demonstrating that he possessed knowledge that his conduct would cause affront or alarm. Thus, he argues that his motion for judgment of acquittal was erroneously denied. We disagree.

“[I]n a judge-tried case, as here, where the trier-of-fact and the arbiter of the law are one in the same, we review to determine whether there was sufficient evidence from which the trial court could have found the defendant guilty beyond a reasonable doubt.” State v. Young, 172 S.W.3d 494, 496 (Mo.App. W.D.2005). In reviewing the sufficiency of evidence in a bench trial of a criminal case, we apply the same standard of review as applied in a jury-tried case; we determine whether the State presented sufficient evidence from which a trier of fact could have reasonably found the defendant guilty; and in so doing, we examine the evidence and inferences in the light most favorable to the verdict, ignoring all contrary evidence and inferences. State v. Johnson, 244 S.W.3d 144, 152 (Mo. banc 2008); State v. Peters, 186 S.W.3d 774, 777 (Mo.App. W.D.2006). Reasonable inferences can be drawn from both direct and circumstantial evidence, State v. Salmon, 89 S.W.3d 540, 546 (Mo.App. W.D.2002), and circumstantial evidence alone can be sufficient to support a conviction, State v. Grim, 854 S.W.2d 403, 406–07 (Mo. banc 1993).

Under section 566.093.1(1), a person commits second-degree sexual misconduct if he exposes his genitals under circumstances in which he knows that his conduct is likely to cause affront or alarm. The Missouri Supreme Court has defined “affront” as “ ‘a deliberately offensive act or utterance; an offense to one's self respect’ ” and “alarm” as an “ ‘apprehension of an unfavorable outcome, of failure, or dangerous consequences; an occasion of excitement or apprehension.’ ” State v. Moore, 90 S.W.3d 64, 67 n. 6 (Mo. banc 2002) (quoting Webster's Third New International Dictionary 36, 48 (1993)). When interpreting the use of “affront” and “alarm” in section 566.095 ⁴—third-degree

[360 S.W.3d 923]

sexual misconduct—the Missouri Supreme Court wrote:

In the context in which “affront” and “alarm” are used in section 566.095, what is prohibited are sexual requests or solicitations that the defendant knows are likely to cause such a reaction. To be impolite is not enough. To be annoying is insufficient. The words “affront or alarm” convey, respectively, a deliberate offense or a feeling of danger. At the least, real emotional turmoil must result.Moore, 90 S.W.3d at 67.

In discussing section 566.093, the Missouri Supreme Court found that the statute prohibited conduct “that is known or believed ‘likely to cause affront or alarm,’ presumably to distinguish a criminal act of exposing oneself from conduct that is accidental, inadvertent, or otherwise done without an intent to do harm.” Moore, 90 S.W.3d at 68. While the application of the statute cannot “depend on the idiosyncratic reaction” of the victim, it does fall “to the courts to ascertain, by reference to the statute's words, what the person should know in advance of his conduct.” Id. at 67–68 (emphasis added). “An adult is presumed to know that certain behavior is criminal.” Id. at 68. In Moore, the court held that adults should know that soliciting oral sex from a thirteen-year-old is a crime likely to cause affront or alarm. Id.

Similarly, in this case, the trial court found that Brown should know that masturbating in public on a well-lit residential street of multi-home residences on a Friday evening, in a college town, leaning against a car parked in front of an “eight-plex” and in clear view of bedroom windows on the multi-residence building, would likely cause similar affront or alarm. There was ample evidence in the record for the trial court to draw such a conclusion, and we agree with the trial court that it is disingenuous for Brown to suggest that he did not know his behavior was criminal.

Brown cites State v. Beine, 162 S.W.3d 483 (Mo. banc 2005), in defense of his argument on appeal, but Beine only reinforces Brown's conviction. In Beine, a male school counselor at an elementary school, whose duties included preventing disruptive behavior by male students in the school's boys' restrooms,⁵ was convicted of knowingly exposing his genitals to persons under the age of fourteen when he was not so surprisingly urinating at a urinal in the boys' restroom. Id. at 484–85. In reversing Beine's conviction, the court noted that Beine had both a right to be in the public...