State v. Paciorek

• Decision Date: 14 May 2002
• Docket Number: No. 27303.,27303.
• Citation: 137 Idaho 629,51 P.3d 443
• Parties: STATE of Idaho, v. Lyle F. PACIOREK.
• Court: Idaho Court of Appeals

51 P.3d 443

137 Idaho 629

STATE of Idaho, v. Lyle F. PACIOREK.

No. 27303.

Court of Appeals of Idaho.

May 14, 2002.

Review Denied July 31, 2002.

William M. Appleton, Coeur d'Alene, for appellant.

Hon. Alan G. Lance, Attorney General; Karen A. Hudelson, Deputy Attorney General, Boise, for respondent. Karen A. Hudelson argued.

LANSING, Judge.

Lyle F. Paciorek stands convicted of public display of simulated masturbation, a misdemeanor. On appeal, he contends that the charge should have been dismissed because the statute under which he was prosecuted prohibits the display of only actual masturbation, not simulated masturbation. Alternatively, he also argues that he is entitled to a new trial because the magistrate court erroneously admitted evidence of another, uncharged incident of simulated masturbation by Paciorek, committed other errors in evidentiary rulings, and gave the jury conflicting instructions regarding the mental element of the offense. We find no reversible error and therefore affirm.

BACKGROUND

The charge against Paciorek was based on information reported by two girls, sixteen-year-old S.L. and ten-year-old K.C. According to that information, the girls were returning to S.L.'s car in the parking lot of a shopping mall on April 13, 1999, when they saw Paciorek in the driver's seat of his car, which was parked nose to nose with S.L.'s car. S.L. recognized Paciorek from an encounter a month earlier, which will be further discussed below. The girls saw that Paciorek, seated in the driver's seat of his automobile, was moving his arm up and down in a manner of exaggerated simulation of masturbation. According to the girls, he was holding his hand with his fingers and thumb curved in a circle, as though he were holding an invisible tube, and pumping his hand up and down over his lap, while maintaining eye contact with S.L. and smiling at her. The hand motion and smiling at S.L. continued as she and K.C. entered S.L.'s car and drove away. S.L. noted Paciorek's license plate number and reported the incident.

Paciorek was charged with public display of offensive sexual material in violation of I.C. § 18-4105, a misdemeanor. He moved to dismiss the charge on the basis that publicly simulating masturbation is not prohibited by § 18-4105, but the motion was denied. Paciorek was convicted of the offense after a jury trial. He appealed to the district court, which affirmed the conviction.

On appeal to this Court, Paciorek complains that the magistrate erred in denying his motion to dismiss the charge and committed several trial errors.

ANALYSIS

A. Motion to Dismiss

Paciorek first contends that his motion to dismiss the charge should have been granted because I.C. § 18-4105(b) does not forbid the display of simulated masturbation. As pertinent to this case, § 18-4105 provides:

Any person who knowingly exhibits or displays or permits to be exhibited or displayed any of the following in such a manner that such exhibit or display is easily visible from any street, sidewalk, thoroughfare, or other public area; or is visible from any transportation facility; or is visible from any residence when the person knows that the owner or occupant of such residence objects to such exhibit or display:

. . . .

(b) An actual or simulated sex act, or sexual contact between humans and animals, or masturbation, or any graphic or pictorial display thereof;

. . . is guilty of a misdemeanor.

According to Paciorek, the adjective "simulated" in subsection (b) modifies only "sex acts" but not "masturbation" or the other acts described in that subsection. In other words, he contends that the statute criminalizes the public display of actual or simulated sex acts, but only actual sexual contact between humans and animals and actual masturbation. He bases this argument upon the grammatical implications of the placement of commas and the disjunctive "or" after the term "sex act." To support his position, he relies upon rules of grammar and sentence construction set out in handbooks of writing style and English grammar.

The presentation of this issue places upon us the task of interpreting the statute so as to give effect to the underlying legislative intent. State v. Rhode, 133 Idaho 459, 462, 988 P.2d 685, 688 (1999); State v. Knott, 132 Idaho 476, 478, 974 P.2d 1105, 1107 (1999). In this task, we are "guided by general principles of statutory construction and a common sense appraisal of what the legislature intended." Lawless v. Davis, 98 Idaho 175, 176, 560 P.2d 497, 498 (1977). In interpreting a statute, we are to seek a sensible construction that will avoid an absurd result. Gavica v. Hanson, 101 Idaho 58, 60, 608 P.2d 861, 863 (1980) (overruled on other grounds by Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986)); State v. Thompson, 130 Idaho 819, 822 n. 4, 948 P.2d 174, 177 n. 4 (Ct.App.1997). To determine legislative intent, we examine not only the literal words of the statute, but also the context of those words, the public policy behind the statute, and any pertinent legislative history. Messenger v. Burns, 86 Idaho 26, 29-30, 382 P.2d 913, 915 (1963); State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct.App.2001). When an ambiguous statute is part of a larger statutory scheme, we not only focus upon the language of the ambiguous statute, but also look at other statutes relating to the same subject matter and consider them together in order to discern legislative intent. State, Dep't of Health & Welfare ex rel. Lisby v. Lisby, 126 Idaho 776, 779, 890 P.2d 727, 730 (1995); Killeen v. Vernon, 121 Idaho 94, 97, 822 P.2d 991, 994 (1991); Smith v. Dep't of Employment, 100 Idaho 520, 522, 602 P.2d 18, 20 (1979); State v. Evans, 134 Idaho 560, 564, 6 P.3d 416, 420 (Ct.App.2000). Although rules of sentence structure and grammar are a legitimate consideration in this endeavor (see State v. Troughton, 126 Idaho 406, 411, 884 P.2d 419, 424 (1994)), ultimately our task is to interpret the statute not as a professor of English grammar would parse it but as the legislature intended it.

Having considered all of the foregoing factors, we conclude that § 18-405(b) prohibits the public display of simulated masturbation. In our view, the interpretation urged by Paciorek leads to an absurd result. According to Paciorek, as to sex acts between two humans, the statute bars the actual or simulated display or a graphic or pictorial display of that activity, but as to masturbation and bestiality, it bars only performance of the actual act or a graphic or pictorial display, while leaving simulated masturbation or bestiality unrestricted. We find it nonsensical to suggest that the legislature was less concerned with the display of simulated acts of masturbation and bestiality than with simulated human sexual intercourse, or that the legislature was more concerned with a pictorial display of masturbation and bestiality than with a live simulation of those acts.

This conclusion is undergirded by consideration of the context of § 18-4105 within Title 18, ch. 41 of the Idaho Code. In chapter 41, the legislature undertook to prohibit the sale and distribution of obscene matter, I.C. § 18-4103; the advertisement or promotion for sale of matter represented to be obscene, I.C. § 18-4103A; and the presentation of obscene live conduct in a public place, I.C. § 18-4104; as well as the offense for which Paciorek was prosecuted, the public display of offensive sexual material, I.C. § 18-4105. It is noteworthy that the statute prohibiting the presentation of obscene live conduct in a public place expressly encompasses the simulating or pantomiming of masturbation. See I.C. §§ 18-4101(I)(2)(b), 18-4104. In light of this complementary statute and the breadth of the overarching statutory scheme, it would defy logic to conclude that the legislature intentionally omitted from the prohibitions of § 18-4105 the public display of simulated masturbation.

Accordingly, we conclude that the magistrate correctly interpreted I.C. § 18-4105(b) to criminalize the conduct of which Paciorek was accused and correctly denied Paciorek's motion to dismiss the charge.

B. Evidence of Previous Similar Behavior

During Paciorek's trial the State offered evidence that, about a month before the incident in the mall parking lot, S.L. had seen Paciorek engaging in similar behavior. This evidence was admitted over Paciorek's objection. According to this testimony, S.L. was driving on an interstate highway when she noticed Paciorek following her, bringing his vehicle abnormally close to hers. Looking through her rearview mirror, she observed that he was moving his arm up and down in a repetitive manner consistent with masturbation, though she could not see his hands. She said that the man was smiling toward her, and that when she changed lanes, he followed. He continued following her vehicle when she exited the highway and until she parked her car. S.L. testified that the man she saw on that occasion was the same man, driving the same vehicle, that she saw on April 13 in the mall parking lot.

Paciorek argues that this evidence was made inadmissible by Idaho Rule of Evidence 404(b), which prohibits evidence of other misconduct in order to prove a person's bad character and conduct in conformity with that character.

We conclude that the evidence was properly admitted, for Rule 404(b) expressly allows admission of other bad acts evidence when it is offered for a purpose other than to show character. Permissible purposes include proof of the actor's mental state such as intent, knowledge or motive, and to show the absence of mistake. I.R.E. 404(b). In this case, it was the State's burden to prove that Paciorek undertook the arm movements observed by S.L. and K.C. as a knowing display of simulated masturbation, see I.C. § 18-4105, and not as some innocent activity that was misinterpreted by the girls. S.L.'s testimony that she saw Paciorek on another occasion exhibiting the...