State v. Gates
| Decision Date | 25 November 1975 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 542 P.2d 822,25 Ariz.App. 241 |
| Parties | STATE of Arizona, Appellee, v. Donald Wesley GATES, Appellant. 1104. |
| Court | Arizona Court of Appeals |
Appellant was charged with a violation of A.R.S. § 13--981 which reads:
A person who wears a mask or personal disguise, complete or partial, with intent to disturb, annoy, alarm or intimidate any person, or for the purpose of escaping detection or identification in the commission of a public offense, or for the purpose of evading arrest, is guilty of a felony.
In particular, the information alleged that appellant wore a mask for the purpose of escaping detection or identification in the commission of a public offense, namely, indecent exposure. After a jury trial, he was convicted and sentenced to serve not less than five nor more than seven years in the state prison.
On appeal, appellant raises four issues:
1. Whether a conviction under A.R.S. § 13--981 requires proof that appellant committed a Felony while wearing a mask;
2. Whether there was substantial evidence to support appellant's conviction;
3. Whether the trial judge erred in failing to give a specific intent instruction for the crime of indecent exposure;
4. Whether admission of appellant's statement regarding prior acts of indecent exposure was error.
First, appellant claims that conviction under A.R.S. § 13--981 requires proof that defendant committed a Felony while wearing a mask. Since indecent exposure is a misdemeanor, A.R.S. § 13--531, appellant claims he was charged under the wrong statute. Appellant concedes the definition of a public offense includes a misdemeanor. A.R.S. § 13--101, 103; Territory v. West, 4 Ariz. 212, 36 P. 207 (1894). 1 Thus, the express language of the statute encompasses the commission of a misdemeanor.
Nonetheless, appellant argues that the legislative intent of A.R.S. § 13--981 requires this court to substitute the word 'felony' for 'public offense' because a companion statute, A.R.S. § 13--983, encompasses misdemeanors while wearing a mask. He therefore concludes that A.R.S. § 13--981 must refer only to felonies. A.R.S. § 13--983 provides:
An act which would otherwise be a misdemeanor, if committed by a person wearing a mask or personal disguise, whether complete or partial, is a felony.
While it is plain there may be some overlap in the two statutes, that fact alone would not prevent prosecution under A.R.S. § 13--981. One does not exclude the other. We see that in general § 13--981 makes felonious certain conduct by one who is wearing a mask (which conduct may or may not otherwise violate another criminal statute), whereas § 13--983 is a punishment augmentation statute elevating a misdemeanor (defined elsewhere in the statutes) to a felony where the offender wears a mask.
We, therefore, reject appellant's argument that A.R.S. § 13--981 applies only to felonies committed while wearing a mask.
Appellant's second ground for appeal is that the evidence does not support a finding of indecent exposure. A.R.S. § 13--531 provides:
A person is guilty of a misdemeanor who wilfully and lewdly exposes his person or the private parts thereof in any public place or in a place where there are present other persons to be offended or annoyed thereby.
Thus, in order to support the finding of indecent exposure, four elements must be present: (1) the appellant must expose his person or private parts; (2) the exposure must be done wilfully; (3) the exposure must be done lewdly, and (4) the exposure must be committed in a public place or in a place where there are other persons present to be offended or annoyed thereby.
In the current case, while one Mrs. Morrison was washing her clothes at a public laundromat, she saw appellant run by as he was going down a public street. Although she did not see his genitals, she saw that his buttocks were bare. She later told the police officer that appellant was 'naked.' Officer Harden, who was across the street, testified that appellant was nude from the waist to about his knees. Finally, appellant was apprehended shortly after being seen by Mrs. Morrison and Officer Harden. At that time the officers observed that he was wearing a pair of leotards or pantyhose with the crotch area cut out. Accordingly, there is no doubt that appellant exposed his private parts.
Second, appellant admitted that he went to the laundromat to expose himself. Thus, there is no question that appellant's act was done wilfully.
Third, appellant's attire was such that it was calculated to draw attention to his genital area and thus could be found by the jury to be lewd.
Finally, there can be little doubt that the laundromat and the public street are a 'public place' within the meaning of the statute. Since the statute is phrased in the disjunctive, there is no specific requirement that a person be annoyed or offended by appellant's behavior so long as the act was performed in a public place. In any event, there is evidence in the record that the witness, Mrs. Morrison, was annoyed and disturbed by the appellant's conduct, thus satisfying the alternate provision of the statute.
Accordingly, there was sufficient evidence to satisfy all the elements of the crime of indecent exposure and support appellant's conviction.
For his third ground on appeal, appellant claims that...
To continue reading
Request your trial
-
State v. Gates
...to imprisonment in the state prison. A timely appeal was filed. The Court of Appeals affirmed his conviction. State v. Gates, 25 Ariz.App. 241, 542 P.2d 822 (1975); Supplemental Opinion, 26 Ariz.App. 75, 546 P.2d 52 (1976). We granted The underlying public offense which appellant was found ......
-
State v. Williams
...crime of Public Sexual Indecency is a sexual offense." In support of its conclusion, the trial court cited State v. Gates ("Gates I"), 25 Ariz.App. 241, 542 P.2d 822 (1975), an opinion issued before the promulgation of Rule 404(c).4 In Gates I, we held that a prior act of indecent exposure ......
-
State v. Bruggeman
...Loan Ass'n, 135 Ariz. 456, 461, 662 P.2d 131, 136 (1983). Bruggeman argues the court in Williams improperly relied on State v. Gates, 25 Ariz. App. 241, 542 P.2d 822 (1975), which involved indecent exposure, rather than public sexual indecency. He contends the distinction is significant bec......
-
State v. Gates
...prohibited by A.R.S. § 13--531). On appeal to this court, the judgment and conviction of appellant were affirmed. See State v. Gates, 25 Ariz.App. 241, 542 P.2d 822 (1975). As appears from the addendum to our opinion, a three-judge panel of the United States District Court for Arizona found......