State v. Bryan, 90,881.

Citation130 P.3d 85
Decision Date17 March 2006
Docket NumberNo. 90,881.,90,881.
PartiesSTATE of Kansas, Appellee, v. Randy BRYAN, Appellant.
CourtUnited States State Supreme Court of Kansas

Virginia A. Girard-Brady, assistant appellate defender, argued the cause and was on the brief for appellant.

Paul E. Dean, assistant county attorney, argued the cause, and Ross R. McIlvain, county attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LOCKETT, J.:

Randy Bryan appeals his conviction for lewd and lascivious behavior. The Court of Appeals affirmed his conviction. This court granted Bryan's petition for review.

FACTS

The facts are summarized from the Court of Appeals opinion:

"H.B. is the eldest daughter of defendant Bryan and was 13 years of age on the date of the offense charged. Her mother (Bryan's wife) awoke in the early morning hours and heard H.B. coughing and crying; upon entering her daughter's room, she found Bryan lying naked upon H.B's bed, on top of the covers, facing H.B. with his left hand on his erect penis. Upon the mother's entry, Bryan rolled off the bed and tried to cover himself, explaining that he had gotten up early to take a shower and went into his daughter's room because he heard her crying and had an erection because he needed to use the bathroom. At trial, he explained that he was naked because he had fallen asleep after having sexual intercourse with his wife.

"The investigating officer testified that H.B. told him she frequently had `night terrors' in which she dreamed someone was chasing her or she was being hurt. H.B. remembered having a bad dream on the night in question and remembered only that she felt like she was being shaken. When asked at trial what she remembered from that incident, H.B. responded, `All I know is that I was dreaming.' She testified that although her mother had told her that Bryan was in her room, she did not recall seeing him." State v. Bryan, 33 Kan.App.2d 382, 383, 102 P.3d 496 (2004).

A jury convicted Bryan of lewd and lascivious behavior. Bryan appealed. The Court of Appeals affirmed Bryan's conviction. This court granted Bryan's petition for review on the limited issue of whether K.S.A. 2004 Supp. 21-3508(a)(2) requires an awareness by the victim.

Bryan argued to the Court of Appeals and this court that he cannot be convicted of lewd and lascivious behavior pursuant to K.S.A. 2004 Supp. 21-3508(a)(2) because H.B. was not aware of his exposed penis. Here, H.B. did not see Bryan's exposed penis because she was asleep. Likewise, there is no evidence to support a finding that H.B. perceived Bryan's penis in some other manner. Although H.B. felt like she was being shaken, she could not attribute that shaking to Bryan's exposed penis because she did not know he was in her bed. Thus, H.B. had no awareness of Bryan's exposed penis. If K.S.A.2004 Supp. 21-3508(a)(2) requires the victim to be aware of the offender's exposed sex organ, Bryan's conviction for lewd and lascivious behavior must be reversed for insufficient evidence.

Whether K.S.A.2004 Supp. 21-3508(a)(2) requires a victim to be aware of the offender's exposed sex organ is an issue of first impression. The Court of Appeals concluded that there is no requirement for sensory perception or awareness by the victim. Bryan, 33 Kan.App.2d at 389, 102 P.3d 496.

K.S.A.2004 Supp. 21-3508(a)(2) provides:

"Lewd and lascivious behavior is:

. . . .

"(2) publicly exposing a sex organ or exposing a sex organ in the presence of a person who is not the spouse of the offender and who has not consented thereto, with intent to arouse or gratify the sexual desires of the offender or another."

Analyzing Bryan's claim requires this court to interpret K.S.A.2004 Supp. 21-3508(a)(2). The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the trial court's interpretation. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).

The fundamental rule of statutory construction is to ascertain the legislature's intent. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. When a statute is plain and unambiguous, the court must give effect to the legislature's intent as expressed rather than determining what the law should or should not be. State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005).

The prohibited act proscribed by K.S.A.2004 Supp. 21-3508(a)(2) is exposing a sex organ. The verb "expose" means to "lay open to view: lay bare: make known: set forth." Webster's Third New International Dictionary 802 (1993). Synonyms for the verb "expose" include show or exhibit. Webster's Third New International Dictionary 802 (1993). This meaning limits the verb to the act itself without requiring someone to actually perceive what has been exposed. Thus, the act of exposing can be accomplished without anyone actually seeing what has been exposed. There is no awareness requirement associated with this element of the offense.

K.S.A.2004 Supp. 21-3508(a)(2) does not proscribe every act of exposing a sex organ. Rather, it proscribes exposing a sex organ in a specific place to a specific class of persons commonly referred to as victims. The specific class of victims includes anyone who is not the offender's spouse and who does not consent to the exposure. K.S.A.2004 Supp. 21-3508(a)(2). The specific place is in the "presence" of the victim, so the ordinary meaning of the word "presence" is key in determining when exposing a sex organ becomes criminal conduct.

The word "presence" has many meanings. The meanings relevant to the legislature's use of the word in K.S.A.2004 Supp. 21-3508(a)(2) include:

"the fact or condition of being present: the state of being in one place and not elsewhere: the condition of being within sight or call, at hand, or in a place thought of: the fact of being in company, attendance, or association: the state of being in front of or in the same place as someone or something: the part of space within one's ken [range of perception], call, or influence: the vicinity of or the area immediately near one: the place in front of or around a person." Webster's Third New International Dictionary 1793 (1993).

Black's Law Dictionary 1221 (8th ed.2004) imparts the concept of awareness to the term "presence," defining the word as "[t]he state or fact of being in a particular place and time: [c]lose physical proximity coupled with awareness."

Although Webster's Third New International Dictionary does not specifically state that awareness is a component of the word "presence," its definitions imply that an awareness is inherent in the definition. Each of these definitions involves a perception of something, e.g., space or surrounding area (in front of, in the same place, in the vicinity of, in the area immediately near), or other people (being in the company of, in attendance with, or in association with). "Perception" is defined as "awareness of the elements of environment through physical sensation." Webster's Ninth New Collegiate Dictionary 872 (1991). Thus, the ordinary meaning of the word "presence" includes an awareness component.

However, the interpretation of the word "presence" to include an awareness component does not necessarily lead to the conclusion that K.S.A.2004 Supp. 21-3508(a)(2) requires the victim to be aware of an offender's exposed sex organ. Therefore, we must first consider the language in the statute to determine who must have the awareness. See McCurry, 279 Kan. at 121, 105 P.3d 1247 (requiring the court to look at the language in the statute).

The final phrase in K.S.A.2004 Supp. 21-3508(a)(2), "with intent to arouse or gratify the sexual desires of the offender or another," adds a specific intent element that limits the broad term "presence." Specifically, an offender must expose a sex organ with the intent of arousing or gratifying the sexual desires of the offender or another. K.S.A. 2004 Supp. 21-3508(a)(2). To arouse or gratify the offender's sexual desires, it is necessary for only the offender to be aware of what is happening. To arouse or gratify the sexual desires of another, the other person must be aware of what is happening. Neither of these scenarios necessarily requires the victim to be aware of the exposed sex organ to satisfy the specific intent element of the statute.

When "presence" is linked to the specific intent element of the offense, the victim only has to be aware of the offender's sex organ when the specific intent of the offender is to arouse or gratify the sexual desires of the victim. If the offender is arousing or gratifying his or her own sexual desires, then only the offender must be aware of the victim and his or her own act of exposing a sex organ. Similarly, if the offender intends to arouse or gratify the sexual desires of another person, that person must be aware of the offender's exposed sex organ. Even though the term "presence" implies an awareness, the question is whose awareness is incorporated in K.S.A.2004 Supp. 21-3508(a)(2).

The distinction between an awareness by the offender and an awareness by the victim is illustrated in Burks v. State, 766 So.2d 468 (Fla.Dist.App.2000), and Holley v. Com., 38 Va.App. 158, 562 S.E.2d 351 (2002). In Burks, the defendant was convicted of committing a lewd and lascivious act in the presence of a child. Burks lived on a remote, 5 acre tract of land situated on a gravel road in rural Florida. 766 So.2d at 469. He was plagued by a hearing impairment and alcoholism. One afternoon while Burks was enjoying his outdoor Jacuzzi and a drink, he decided to get out of the tub to check his garden hose.

Two teen-aged girls riding all terrain vehicles on the gravel road observed Burks' naked body as he walked around...

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