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NOT DESIGNATED FOR PUBLICATION
No. 114,712
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS
Appellee,
v.
JASON ALBIN,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed November 10,
2016. Reversed.
Catherine A. Zigtema, of Zigtema Law Office LC, of Shawnee, for appellant.
Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, James
Crux, legal intern, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., LEBEN and GARDNER, JJ.
GARDNER, J.: Jason Albin appeals from a bench trial which found him guilty of
lewd and lascivious behavior for publicly exposing his sex organ with intent to arouse his
own sexual desires. Finding insufficient evidence that Albin "publicly exposed" his sex
organ, we reverse.
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Factual and procedural background
The facts in this case are undisputed and uncomplicated. In May 2015, Albin
drove his commercial truck into the parking lot of Alliance Data, a call center at which he
did not work. It was mid-morning, and persons were working at Alliance Data. Albin
parked his truck at the far end of the lot where the nearest car was 40 to 50 feet away and
where there were no pedestrians.
A security officer at Alliance Data noticed the truck enter the parking lot and
focused a security camera on it. That camera was located in one corner of the parking lot,
mounted above the cars. The officer zoomed the camera in on the driver's side of the
truck's windshield, shooting down, and concluded that Albin was masturbating in his
truck. Albin drove the truck out of the parking lot a few minutes after he had entered it.
The security officer notified police, who stopped Albin.
The State charged Albin with lewd and lascivious behavior. At the bench trial, the
State presented the following evidence: a video recorded by the security camera,
testimony of the security officer, a stipulation that Albin was in the truck that day, and
testimony of the Lenexa police officer who stopped Albin.
The police officer testified that Albin, when confronted by the police officer,
stated:
"'I was driving between jobs when I just started to get horny and got an erection. I tried to
think about other stuff and it didn't go away. I noticed a parking lot so I pulled in and
covered up the window and masturbated. Then I left . . .'"
The police officer also testified that Albin had told him he did not think he would be seen
and that he was trying not to be seen.
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The security officer testified, "[I]t appeared to be that it looked like [Albin] was
masturbating in the vehicle." When asked if he observed movements that he believed to
be "consistent with masturbation," he responded, "Yes." No more specific testimony was
given. The security officer agreed that Albin probably would not have known a camera
was there, and that had he not zoomed the camera in, he would not have been able to see
Albin's movements in his truck.
The security video showed no vehicles or persons near Albin's truck during the
event. The video is of poor quality due in part to the reflection of a tree on the front
windshield of Albin's truck, which largely obscures the camera's view of the driver. The
video does not show Albin's sex organ or any movements that would compel the
conclusion that Albin masturbated in his truck. The police officer, however, testified he
was able to tell from viewing the video that Albin was doing so. The district court
discredited Albin's statement that he had tried to cover the window, finding the video did
not show any such acts.
After the bench trial, the district court found Albin guilty of lewd and lascivious
behavior in violation of K.S.A. 2015 Supp. 21-5513 (a)(2) by publicly exposing his sex
organ with the intent to gratify his own sexual desires on May 15, 2015, in the parking lot
at Alliance Data. Albin timely appeals, claiming insufficient evidence supports his
conviction.
Standard of Review
When reviewing a mixed question of law and fact, an appellate court applies a
bifurcated standard. The district court's factual findings are generally reviewed under the
substantial competent evidence standard. The district court's conclusions of law based on
those facts are subject to unlimited review. See State v. Miller, 293 Kan. 535, 547, 264
P.3d 461 (2011). Statutory interpretation is a question of law subject to unlimited review.
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Substantial evidence refers to legally admitted, relevant evidence that a reasonable
person could accept as being adequate to support a conclusion. State v. Talkington, 301
Kan. 453, 461, 345 P.3d 258 (2015). When the sufficiency of evidence is challenged in a
criminal case, the appellate court reviews all of the evidence in the light most favorable to
the State. A conviction will be upheld if the court is convinced that a rational factfinder
could have found the defendant guilty beyond a reasonable doubt based on that evidence.
State v. Laborde, 303 Kan. 1, 6, 360 P.3d 1080 (2015).
Discussion
Lewd and lascivious behavior is defined, in relevant part, as: "[P]ublicly 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." K.S.A. 2015 Supp. 21-5513(a)(2). Albin was
convicted of publicly exposing his sex organ with intent to arouse or gratify the sexual
desires of the offender, so we focus our discussion on that section of the statute. Albin
admits that he masturbated in his truck. However, he argues that he did not "expose" his
genitals "publicly" and, alternately, that he did not intend to derive sexual gratification
from his incidental exposure, but from the act of masturbation.
The meaning of "expose" in the statute
The proper interpretation of the terms in the statute requires us to apply the canons
of statutory construction. The most fundamental rule of statutory construction is that the
intent of the legislature governs if that intent can be ascertained. State v. Jordan, 303
Kan. 1017, 1019, 370 P.3d 417 (2016). The court must first attempt to ascertain
legislative intent through an analysis of the language employed, giving ordinary words
their ordinary meaning. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). The
general rule is that a criminal statute must be strictly construed in favor of the accused.
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This rule of strict construction, however, is subordinate to the rule that judicial
interpretation must be reasonable and sensible to effect legislative design and intent. State
v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 (1995).
Both parties cite State v. Bryan, 281 Kan. 157, 130 P.3d 85 (2006), the sole
Kansas case examining the statute's definition of "exposing." But there, unlike here,
exposing in the presence of another person was at issue. The specific issue was
"[w]hether K.S.A. 2004 Supp. 21-3508(2) requires a victim to be aware of the offender's
exposed sex organ." 281 Kan. at 158. Our Supreme Court concluded that it does not, and
that in such cases the offender's awareness of the presence of a victim is sufficient. 281
Kan. at 167.
The Supreme Court in Bryan defined expose as: "'lay open to view: lay bare:
make known: set forth.'. . . Synonyms . . . include show or exhibit." 281 Kan. at 159
(citing Webster's Third New International Dictionary 802 [1993]). "This meaning limits
the verb [expose] to the act itself without requiring someone to actually perceive what has
been exposed." 281 Kan. at 159. Thus, using the ordinary definitions of the terms
"exposing" and "presence," the court defined the lewd and lascivious behavior under that
subsection as "showing or exhibiting a sex organ in a place where a victim . . . is within
the offender's . . . range of perception, and committed with the intent to arouse or gratify
the sexual desires of the offender or another." 281 Kan. at 166.
We define "expose" as the Supreme Court did in Bryan. Albin correctly contends
that not even the security camera footage, shot from above through his front windshield
and zoomed in to the passenger side of his truck, shows his sex organ. The security
officer never testified that he saw Albin's sex organ, that Albin had unzipped or removed
his pants, or what movements he saw that led him to conclude Albin was masturbating in
his truck. Thus, no facts of record establish that Albin's sex organ was shown, uncovered,
visible, or otherwise exposed.
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The meaning of "publicly" in the statute
Nonetheless, viewing the evidence in the light most favorable to the State, one
could find that Albin's admission to having masturbated gives rise to a reasonable
inference that in so doing he exposed his sex organ. We thus reach Albin's contention that
any exposure was not done "publicly" as the statute requires.
Kansas cases have not defined "publicly" as used in this statute. Black's Law
Dictionary does not define that adverb, but it defines the noun "public" as:
"1. The people of a country or community as a whole
.
2. A place open or visible to the public ." Black's Law Dictionary 1422 (10th
ed. 2014). The State relies on the latter definition, which focuses on a place, while Albin
essentially relies on the former, which focuses on people.
The State contends that Albin's exposure violated the statute because it was done
in a public location—a parking lot which vehicles could enter and exit at any time. The
district court adopted the State's position and concluded that Albin exposed his penis
publicly, explaining: "Clearly, Mr. Albin was aware he was in a public place, that he was
in his vehicle, but certainly viewing was available to the rest of the world." But the State
relies on cases from other jurisdictions whose statutes, unlike ours, prohibit lewd acts "in
public." See, e.g., People v. Lino, 447 Mich. 567, 527 N.W.2d 434 (1994) (upholding a
conviction where the defendant was seen doing an act of "gross indecency" while parked
in a vehicle in a restaurant parking lot because the restaurant parking lot was a public
place).
The Kansas statute under which Albin was convicted does not require that the
exposure of one's sex organ be done "in a public place." Instead, the Kansas statute was
amended from prohibiting "the exposure of a sex organ in a public place" to prohibit
"publicly exposing a sex organ." Compare K.S.A. 21-3508(1)(b) (Ensley 1988) (effective
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in 1983) with K.S.A. 21-3508(a)(2) (revised effective July 1, 1993) and K.S.A. 2015
Supp. 21-5513(a)(2). When the legislature revises an existing law, we presume that the
legislature intended to change the law as it existed prior to the amendment. State v.
Snellings, 294 Kan. 149, 157, 273 P.3d 739 (2012). Accordingly, we are not persuaded
that the State's interpretation of this term is correct.
But even if the current statute prohibited exposure in a public place, the facts of
this case do not necessarily meet that requirement. As the State concedes, whether a
parking lot is considered public often depends on whether another person could
reasonably see the complained-of action. Although Kansas cases have not addressed this
issue, other jurisdictions have persuasively held that the interior of a truck parked in a
public lot where no persons are able to see the interior is not necessarily a public place.
For example, in People v. McNamara, 78 N.Y.2d 626, 578 N.Y.S.2d 476, 585 N.E.2d
788 (1991), the Court of Appeals found that allegations of sexual activity in parked cars
at stated addresses, three of which were public streets in residential areas, were not alone
sufficient to establish the public place requirement of its lewd and lascivious statute. The
court reasoned that the interior of a parked car could be considered a public place only
"where the objective circumstances establish that lewd acts committed there can, and
likely would, be seen by the casual passerby, whose sensibilities the statute seeks to
protect." McNamara, 78 N.Y.2d at 633-34.
Similarly, in People v. Davis, 164 Misc. 2d 89, 90, 624 N.Y.S.2d 353 (Crim. Ct.
1994), the court affirmed a conviction under its penal law stating: "'A person is guilty of
public lewdness when he intentionally exposes the private or intimate parts of his body in
a lewd manner or commits any other lewd act (a) in a public place.'" But it held that
merely doing a lewd act in a public place was insufficient, stating:
"While it is true that the mere occurrence of a lewd act in a place to which the public has
access will not of itself constitute a violation of the statute, these allegations provide
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sufficient indicia that defendant was situated in an area from which his lewd acts could
readily be observed by members of the passing public." Davis, 164 Misc. 2d at 92.
Other cases similarly find that the "public" or "publicly" element of lewd and
lascivious statutes requires foreseeability that one's acts may be seen by another. See,
e.g., State v. Piltz, 277 Wis. 2d 875, ¶10, 690 N.W.2d 885 (2004) (unpublished opinion)
(reviewing jury instruction for lewd and lascivious which defined "publicly" as: "'in such
a place or manner that the person knows or has reason to know that the conduct is
observable by or in the presence of other persons'"); accord Com. v. Nicholas, 40 Mass.
App. 255, 257, 663 N.E.2d 266 (1996) (finding "[t]he Commonwealth must prove that
the likelihood of being observed by casual passersby must have been reasonably
foreseeable to the defendant, or stated otherwise, that the defendant acted upon an
unreasonable expectation that his conduct would remain secret"); cf. People v. Ridens, 59
Ill. 2d 362, 385, 321 N.E.2d 264 (1974) (Davis, J., dissenting) (examining obscenity
statute which defined "'displays publicly'" as "'the exposing, placing, posting, exhibiting,
or in any fashion displaying in any location, whether public or private, an item in such a
manner that it may be readily seen and its content or character distinguished by normal
unaided vision viewing it from a public thoroughfare, depot or vehicle"). We find these
cases to be well-reasoned.
We also find Albin's arguments to be persuasive. First, he contends he did not
"publicly expose" his sex organ because no member of the public was anywhere near him
at the time of his act. The testimony of the security camera operator confirms that Albin's
truck was in the corner of the lot, about 40 to 50 feet away from other vehicles, and that
no pedestrians were in the area at that time. Albin was parked in an area where no one
would have to pass by his truck to enter the business or their cars. No one saw Albin's sex
organ, even with the assistance of a security camera of which Albin was unaware,
mounted high above the vehicles and zoomed in on his movements.
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Second, Albin relies on the fact that he did not think he would be seen and that he
took action so he would not be seen, as he told the police officer who stopped him soon
after the event. We believe Albin's subjective intent as to this element is irrelevant. The
relevant question in determining the public nature of the act is whether it was reasonably
foreseeable that Albin's act would be seen by another. The facts noted above demonstrate
that Albin took acts to avoid being observed by others. Albin also told the police officer
that he had covered the window before the act. The district court judge resolved that
question against Albin because the video did not show him covering the window. But the
evidence shows that at least 86 seconds of the video are missing, without explanation.
Albin could have tried to cover the window during the time not captured on the video, so
the district court's finding that Albin did not try to cover the window is unsupported. The
video does not conclusively show that Albin did or did not cover the window of his truck.
But the undisputed facts fail to show it was reasonably foreseeable that Albin's act would
be seen by others or, conversely, that Albin acted upon an unreasonable expectation that
his conduct would remain secret.
Third, Albin asserts that he had a reasonable expectation of privacy in acts done in
his lawfully possessed vehicle, citing California v. Carney, 471 U.S. 386, 105 S. Ct.
2066, 85 L. Ed. 2d 406 (1985), a Fourth Amendment case. The State responds that this is
not a Fourth Amendment case. Yet the fact that Albin's act occurred in a commercial
truck should not be ignored—its boxy structure and heightened elevation provided a
greater degree of privacy or cover for Albin's acts within its passenger compartment than
if the same acts had been done inside a car or outside the truck.
Even the cases cited by the State demonstrate that the time, place, and manner of
acts alleged to be lewd and lascivious determine their public nature. See, e.g., State v.
Cutro, 37 Conn. App. 534, 539-40 657 A.2d 239 (1995) (finding a reasonable expectation
that people would be able to view the defendant's action when he masturbated in his car
in the parking lot of a mall shortly after it closed and was seen by two teenage girls);
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Douglas v. State, 330 Ga. App. 549-50, 768 S.E.2d 526 (2015) (finding sufficient
evidence to convict for public indecency by a lewd exposure of sexual organs when a
witness saw defendant masturbating on a bench outside a shopping mall and could clearly
see his exposed penis); Moton v. State, 332 Ga. App. 303, 304-05, 772 S.E.2d 396 (2015)
(finding sufficient evidence to convict under that same statute when a witness saw a man
pull his erect penis from his pants and begin to masturbate in a public library). The
evidence in this case failed to show that if anyone had driven by or walked by Albin's
truck at the time of his lewd act they reasonably could have seen what was happening in
its passenger compartment.
As the State concedes, a conviction under the statute "does not require any
engagement but rather only an exposure that is likely to be seen." Given the undisputed
facts, we find that the State failed to show that Albin's exposure, if any, was done
"publicly." No evidence established that another person did see or reasonably could have
seen Albin's sex organ or that it was reasonably foreseeable to Albin that his acts would
be seen by another.
Because we find insufficient evidence that Albin "publicly exposed" his sex organ
within the meaning of those terms in the statute, we do not reach Albin's argument
regarding his lack of specific intent.
Reversed.