State v. Stewart

• Decision Date: 10 February 2020
• Docket Number: No. 78846-9-I,78846-9-I
• Citation: 457 P.3d 1213
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Michael Robert STEWART, Appellant.

457 P.3d 1213

STATE of Washington, Respondent,

v.Michael Robert STEWART, Appellant.

No. 78846-9-I

Court of Appeals of Washington, Division 1.

FILED: February 10, 2020

PUBLISHED OPINION

Appelwick, C.J. ¶1 Stewart appeals his conviction for indecent exposure. He argues that the trial court’s findings of fact entered in support of the open and obscene exposure element of the crime are not supported by substantial evidence. We affirm.

FACTS

¶2 At around 10:00 a.m. on November 1, 2017, S.G. went shopping in Mount Vernon. As she was walking around a building to get to another store, she saw a man on the side of the building behind a dumpster. The man was kneeling on the ground in an upright position, and his body was moving erratically.

¶3 S.G. initially thought that the man was having a seizure. The man then turned and made eye contact with her. She noticed that his arm was moving back and forth. She also observed his hands by his genitals, and one of his hands moving rapidly back and forth. At that point, S.G. believed that the man was masturbating.

¶4 S.G. went into the store she was walking towards and told the store clerk that there was a man masturbating outside the door. The store clerk called the police. From inside the store, S.G. saw the man walk across the street to a parking lot. About 5 to 10 minutes later, Officer Chris Carlson arrived and contacted the man in the parking lot. Carlson identified the man as Michael Stewart.

¶5 After consulting with an officer who had spoken with the reporting parties, Carlson placed Stewart under arrest. He advised Stewart of his constitutional rights. Stewart agreed to speak with Carlson, and denied being next to the building where S.G. had seen him. Carlson told Stewart that other people had told him he had been next to the building and crossed the street just prior to his arrival. In response, Stewart stated that he had been over there, and thought he might have had a seizure. He did not request medical attention from Carlson.

¶6 Later that morning, Detective Sergeant Mike Don conducted an audio and video interview of Stewart at the Mount Vernon Police Department. During the interview, Stewart told Don that he had experienced a seizure. He explained that when he experiences a seizure, he typically has about 12 seconds to loosen his tight fitting clothing. He stated that he had undone his belt, and that, when he was seen, his top layer of pants was probably down around his knees.¹

¶7 The State charged Stewart with indecent exposure under RCW 9A.88.010(1) and (2)(c). Stewart waived his right to a jury trial. Following a bench trial, the trial court found Stewart guilty as charged. Stewart had 10 prior convictions. His two most recent convictions were for indecent exposure. The trial court did not find a basis to deviate from the standard sentencing range and sentenced him to 60 months of confinement.

¶8 Stewart appeals.

DISCUSSION

¶9 Stewart argues that sufficient evidence does not support his indecent exposure conviction. Specifically, he contends that the trial court’s findings of fact entered in support of the open and obscene exposure element of the crime are not supported by substantial evidence. As a result, he asserts that the trial court’s findings of fact do not support its conclusion of law finding him guilty.

¶10 To determine whether sufficient evidence supports a conviction, we view the evidence in the light most favorable to the State, and determine whether any rational fact finder could have found the elements of the crime beyond a reasonable doubt. State v. Homan, 181 Wash.2d 102, 105, 330 P.3d 182 (2014). Evidence sufficiency challenges admit the truth of the State’s evidence and all reasonable inferences that can be drawn from it. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Killingsworth, 166 Wash. App. 283, 287, 269 P.3d 1064 (2012).

¶11 "[F]ollowing a bench trial, appellate review is limited to determining whether substantial evidence supports the findings of fact and, if so, whether the findings support the conclusions of law." Homan, 181 Wash.2d at 105-06, 330 P.3d 182. Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the finding’s truth. State v. Solomon, 114 Wash. App. 781, 789, 60 P.3d 1215 (2002). We consider unchallenged findings of fact verities on appeal, and we review conclusions of law de novo. Perry v. Costco Wholesale, Inc., 123 Wash. App. 783, 792, 98 P.3d 1264 (2004).

¶12 A person is guilty of indecent exposure under RCW 9A.88.010(1) "if he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm." While the statute requires "open and obscene exposure" of a defendant’s person, no witness must see a defendant’s genitalia for the State to prove that the defendant exposed himself in another’s presence. Id.; State v. Vars, 157 Wash. App. 482, 491, 237 P.3d 378 (2010). The crime has been committed "[s]o long as an obscene exposure takes place when another is present and the offender knew the exposure would likely cause reasonable alarm." Id.

¶13 Stewart argues first that a sentence in finding of fact 5 is not supported by substantial evidence. The challenged portion of finding of fact 5 states, "When [S.G.] was not more than 15 feet away from the man, she looked over her shoulder and saw the man’s hand was by his genitals and his hand was moving back and forth rapidly."

¶14 S.G. testified that she was four or five yards away from Stewart when she saw his arm moving back and forth. The State then asked, "When you are saying you saw his arm moving back and forth can you tell us where his hands were in relationship to his body?" She responded that his hands were "[b]y his genitals." The State also asked her how quickly Stewart’s hand was moving back and forth. She responded, "Rapidly." On cross-examination, S.G. clarified that she did not actually see Stewart’s penis, but that his hand was "right in front of where his penis would be." She also stated that she could not tell if his pants were down.

¶15 Stewart contends that, looking at S.G.’s testimony as a whole, she saw his arm moving back and forth but only "inferred his hand was in the area of his penis." He asserts that if S.G. "actually saw his hands near his penis, as opposed to inferring where his hands were, she would necessarily have been able to see at the same time whether his pants were down." But, S.G. clearly testified that Stewart’s hands were by his genitals. She also stated that his hand was right in front of where his penis would be. This testimony constitutes substantial evidence supporting the trial court’s finding that S.G. saw Stewart’s hand by his genitals, and saw his hand moving rapidly back and forth.

¶16 Stewart argues second that finding of fact 6 is not supported by substantial evidence. Finding of fact 6 provides, "S.G. was not sure if she saw Mr. Stewart’s penis because she saw his hand moving back and forth in the area of where his penis was. That is clear evidence that his hand was not in his pants at the time and, in fact, that his penis was outside of his pants."

¶17 S.G. testified that she saw Stewart’s body moving around erratically, his hands by his genitals, and his hand moving rapidly back and forth. The State asked S.G. if she had any doubt in her mind as to what was going on at that point. She responded,

You know, I thought I looked away when he made eye contact, and not wanting to watch I looked away. And for a fleeting moment in my head I thought, well, what if he’s really having a seizure and he’s hurt. As I got closer, past a tree, I remember looking over, and it was very obvious what he was doing. So I [did] have a second glance there, and looked over and confirmed; that’s when I went into the store.^{[2 ]}

The State then asked her, "When you say it was very obvious what he was doing I’m assuming you are saying [you are] not believing he’s having a seizure at this point?" S.G. responded, "Correct, correct, with his hand placement the way he was moving, kneeling, it wasn’t a seizure."

¶18 Next, the State asked S.G. what she believed Stewart was doing. S.G. stated that it was "pretty obvious" Stewart was masturbating. When asked on cross-examination if she saw Stewart’s penis, S.G. responded, "No, I don’t think so." She then stated, "When I looked over and saw where his hand was that was enough." She explained that his hand was "right in front of where his penis would be."

¶19 Stewart argues that "S.G.’s testimony does not show it is more likely than not that his penis was outside his pants." He asserts that it is possible to masturbate "while the penis remains inside the pants." But, S.G. testified that it was "obvious" Stewart was masturbating, that his hand was moving rapidly back and forth right in front of where his penis would be, and that, when she looked over and saw where his hand was, "that was enough." Based on S.G.’s testimony, a rational, fair-minded person could conclude that Stewart was masturbating with his penis outside his pants. As a result, substantial evidence supports the trial court’s finding that Stewart’s penis was outside his pants.

¶20 Stewart argues last that finding of fact 7 is not supported by substantial evidence. Finding of fact 7 states that "[t]he exposure of the defendant’s penis by the defendant was intentional." In challenging this finding, Stewart’s only argument is that "the evidence does not show an exposure occurred." But, as established above, substantial evidence supports that an exposure did occur. And, despite claiming that he had a seizure, Carlson testified that Stewart did not ask him for help in seeking medical attention. Thus, substantial evidence supports that the exposure was intentional.

¶21...