Opinion
No. 4-374 / 04-0120.
September 9, 2004.
Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge.
A minor child argues the State offered insufficient evidence that he committed the delinquent act of indecent exposure. REVERSED AND REMANDED.
Edward W. Bull, of Bull Law Office, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John Sarcone, County Attorney, and Michelle Chenoweth, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
C.C., a minor, appeals his adjudication for committing the delinquent act of indecent exposure. See Iowa Code §§ 232.2(13)(a) (2001) (defining delinquent act as any "violation of state or local law which would constitute a public offense if committed by an adult . . ."), 709.9 (defining indecent exposure). He asserts that the State did not establish the elements of this public offense. We agree.
I. Background Facts and Proceedings
Our de novo review of the record reveals the following facts. See In re D.L.C., 464 N.W.2d 881, 882 (Iowa 1991) (setting forth scope of review). On a dark spring evening in 2003, three neighborhood boys, C.C., D.C., and R.W., came to the Des Moines home of siblings D.D. and J.D. The boys began playing basketball with twelve-year-old J.D. Soon after, R.W. asked fourteen-year-old D.D. to perform oral sex on him. She "told him no." D.D. momentarily went into the house. R.W. approached J.D. and offered him a pair of a popular brand of athletic shoes if he remained silent about the oral sex. D.D. overheard the conversation, summoned J.D., and told him not to take the shoes, as she did not intend to perform oral sex on R.W. She came outside to complete some chores.
R.W., D.C., and C.C. followed her. R.W. and D.W. forced D.D. to remain behind the garage. D.D. tried to get away but R.W. pinned her against a fence and exposed his penis to her. He again asked D.D. to perform oral sex and she again refused. She said no to R.W. "about twenty times."
Meanwhile, C.C. went to the side of the garage to prevent D.D. from escaping. He also restrained J.D. to keep him from going behind the garage. Later, he released J.D. D.D. noticed C.C. masturbating in front of a car and running "up and down the driveway." She heard him say, "Here comes Johnny." D.D. understood this to be a reference to his penis.
Eventually, J.D. was able to round the garage with a flashlight. When he saw what was happening, he ran into the house and yelled to his brother. Hearing the commotion, R.W. let go of D.D. and left. Her mother contacted the police. II. Evidence of Indecent Exposure
The State alleged R.W. committed assault with intent to commit sexual abuse. The State did not allege C.C. aided and abetted R.W.'s assault. See Iowa Code § 703.1.
Indecent exposure has four elements:
1. The exposure of genitals or pubes to someone other than a spouse, or, in the alternative, the commission of a sex act in the presence or view of a third person;
2. That the act is done to arouse the sexual desires of either party;
3. The viewer was offended by the conduct; and
4. The actor knew, or under the circumstances should have known, the victim would be offended.
State v. Adams, 436 N.W.2d 49, 50 (Iowa 1989) (citing Iowa Code § 709.9). Although separate, trial courts often combine the third and fourth elements. Id. at 50 n. 1.
C.C. offers three grounds for reversal: 1) he did not "expose" himself as a matter of law, 2) there was insufficient evidence that he masturbated for the purpose of sexual satisfaction of himself or anyone else, and 3) there was insufficient evidence that either J.D. or D.D. were offended by his conduct. We find the third ground dispositive.
On the offensiveness issue, the State cites 1) D.D.'s testimony that she was offended at the sight of R.W.'s penis and 2) J.D.'s testimony that he did not find C.C.'s masturbation particularly "funny." The State also urges, "public masturbation would offend any reasonable person."
Turning to the State's first citation of evidence, there is no question D.D. was offended by R.W.'s conduct, which was overtly sexual and specifically targeted toward her. However, D.D., said nothing about whether C.C.'s conduct offended her. This conduct was qualitatively different from R.W.'s conduct. Cf. Adams, 436 N.W.2d at 50-51 (stating conduct from two different incidents may not be fused together to satisfy all four elements of indecent exposure). Indeed, when asked what if anything she saw C.C. doing, D.D. responded, "I don't really know for sure." When pressed, she admitted seeing him "a little" and she mentioned she saw him masturbating but she stated the act took place in front of J.D. and not her and she did not see his penis. Notably, the incident occurred in the evening and we cannot independently discern from the record how extensive D.D.'s view of C.C. was from her vantage point.
D.D. did not specifically state the sight of R.W.'s penis alone offended her.
J.D.'s testimony is no more enlightening than D.D.'s on the offensiveness element. After describing C.C.'s act of masturbation and characterizing it as "weird," he stated, "I think he was trying to be funny." When asked about his reaction to C.C.'s conduct, J.D. stated he did not think the masturbation was funny. We cannot infer from this statement that he was offended by C.C.'s conduct.
Finally, the State would have this court presume that all viewers of public masturbation are offended. This argument is more germane to the fourth element of indecent exposure: whether the actor knew or under the circumstances should have known the victim would be offended. That element is not at issue on appeal. Even if the State's contention were applicable to the third offensiveness element, a presumption of offensiveness would excuse the State from proving an element of its case. This is impermissible. See Iowa Code § 232.47 (requiring the State to prove, beyond a reasonable doubt, a child committed a delinquent act); D.L.C., 464 N.W.2d at 882-83 (same). As our highest court stated with respect to the crime of indecent exposure, "It must be shown that the viewer was offended by the conduct." State v. Bauer, 337 N.W.2d 209, 212 (Iowa 1983). Neither D.D. nor J.D. testified they were offended by C.C's conduct. Therefore, the State failed in its burden of proof on this element of the offense.
III. Disposition
We reverse C.C's delinquency adjudication for the offense of indecent exposure and remand for dismissal of the State's delinquency petition.
REVERSED AND REMANDED.
Hecht, J., concurs; Vogel, P.J., concurring specially.
Because we are bound by stare decisis I must concur. However, it is my belief that our case law has gone beyond the legislature's intent in interpreting Iowa Code section 709.9. See ABC Disposal Systems Inc. v. Department of Natural Res., 681 N.W.2d 596, 603 (Iowa 2004) ("In interpreting a statute, our goal is to determine the legislature's intent when it enacted the statute").
In 1974, the former indecent exposure statute was found unconstitutionally vague in State v. Kueny, 215 N.W.2d 215, 218-19 (Iowa 1974). As a response, in 1976 our legislature promulgated the current statute. See 1976 Iowa Acts ch. 1245, § 909. This statute as codified at Iowa Code section 709.9 has remained essentially unchanged since its original enactment, and provides:
See 1977 Iowa Acts ch. 147, § 13 (substituting "the" for "his" preceding "act" in subsection 2).
A person who exposes the person's genitals or pubes to another not the person's spouse, or who commits a sex act in the presence of or view of a third person, commits a serious misdemeanor, if:
1. The person does so to arouse or satisfy the sexual desires of either party; and
2. The person knows or reasonably should know that the act is offensive to the viewer.
Iowa Code § 709.9 (2003).
One commentator, who interpreted this statute shortly after it became effective in 1978, concluded the crime of indecent exposure contained the following three elements:
The actus reus of the revised crime can consist, in the alternative, of either (1a) exposure of one's genitals or pubes to another person other than one's spouse or (1b) commission of a "sex act" in the presence or view of a third person; with the additional dual mens rea elements of both (2) intending to arouse or satisfy the sexual desires of either party and (3) knowing (or having reasonable basis for knowing) that such conduct is offensive to the viewer.
Kermit L. Dunahoo, The New Iowa Criminal Code: Part II, 29 Drake L. Rev. 491, 540-542 (1979-80) (emphasis supplied by Dunahoo). This commentary was relied upon in the 1983 case of State v. Bauer, the first decision interpreting the substantive requirements of the new statute. See State v. Bauer, 337 N.W.2d 209 (Iowa 1983). However, in State v. Bauer, a fourth element, that the victim be offended, was added:
The offensiveness standard is the third element of the crime and requires the State to show the state of mind of both the actor and the victim-viewer. It must be shown that the viewer was offended by the conduct. It must also be shown that the actor knew, or under the circumstances, should know the viewer would be offended.
Id. at 212. Moreover, in 1989, this language was reiterated:
Although we sometimes list them as three, there are actually four elements to the crime of indecent exposure under section 709.9:
1. The exposure of genitals or pubes to someone other than a spouse, or in the alternative the commission of a sex act in the presence or view of a third person;
2. That the act is done to arouse the sexual desires of either party
3. The viewer was offended by the conduct; and
4. The actor knew, or under the circumstances should have known, the victim would be offended.
State v. Adams, 436 N.W.2d 49, 50 (Iowa 1989) (emphasis added); see also I Iowa Crim. Jury Instructions 900.5 (1990); 4 Rigg, Iowa Practice: Criminal Law § 6.1(o), at 1169-70 (2003) (both listing the above recited elements as the required elements of indecent exposure and citing State v. Adams as authority).
The creation of a fourth element finds no support in the plain language of the Iowa Code section 709.9. Moreover, an examination of the legislative history of Iowa Code section 709.9 reveals no intent on the part of the General Assembly to require the State demonstrate that the victim was actually offended by the conduct. See S.F. 85, 66th Gen. Assem., Reg. Sess. (Iowa 1976). Finally, even the authority cited within State v. Bauer falls short of supporting the formation of an element requiring proof that the victim was in fact offended. See Dunahoo, 29 Drake L. Rev. at 541 (providing for only three elements to indecent exposure); 4 Yeager R. Carlson, Iowa Practice: Criminal Law and Procedure § 217, at 63 (1979); Model Penal Code § 213.5 (1980) (not requiring a showing of an offensiveness whatsoever, but instead requiring only that the assailant know that "his conduct is likely to cause affront or alarm") (emphasis added).
Rather, the authority cited in State v. Bauer supports the determination in State v. Bauer that the intent of the legislature in drafting the language "knows or reasonably should know that the act is offensive to the viewer" was:
[T]o eliminate prosecutions for willing and consensual conduct . . . [i]n these circumstances the legislature desired that no crime exist.
Bauer, 337 N.W.2d at 211 (quoting the district court's statement of the legislative intent behind Iowa Code section 709.9(2)); see also 4 Yeager R. Carlson, § 217, at 63 (concluding that "only exposure with sexual motivation, inflicted upon an unwilling viewer" constitutes the offense of indecent exposure) (emphasis added). Thus, it appears the legislature, in mandating that a person know or reasonably should know that the "act is offensive to the viewer", never intended to require proof that a victim was actually offended. Rather, the General Assembly intended only to prevent prosecutions for willing and consensual behavior. Id. Therefore, in my view the State need not show that the victim was actually offended, but instead only the statutory requirement that the person committing the act knows or should know that the act "is offensive to the viewer." See Dunahoo, 29 Drake L. Rev. at 541.
In this case, while there is no testimony from the young victim or her brother that either was "offended" by C.C.'s conduct, there is ample testimony that the female victim, D.D., was not a willing observer. She was being held against her will by R.W., while C.C. guarded the pathway to where the victim was, preventing the victim's brother from coming to her aid. While still being restrained, she witnessed C.C. masturbating. Thus, the State clearly produced testimony from D.D. that she was not a willing participant or observer, and that C.C. knew or should have known that his conduct was offensive to D.D. I assert that the statutory element "the person knows or reasonably should know that the act is offensive to the viewer" was proven.
Under this scenario, I would find the elements the legislature set forth in Iowa Code section 709.9 were satisfied, and would affirm the district court's adjudication, but under the current status of our case law, must concur.