in the Interest of D.C. —

2019 COA 22

• Court: Colorado Court of Appeals
• Decided: February 21, 2019
• Docket: 16CA0236, People
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY February 21, 2019

2019COA22

No. 16CA0236, People in the Interest of D.C. — Juvenile Court — Delinquency; Crimes — Public Indecency

A division of the court of appeals considers whether sufficient

evidence supported a juvenile’s adjudication for public indecency

committed in a Division of Youth Corrections’ classroom.

Interpreting the public indecency statute, § 18-7-301(1), C.R.S.

2018, the division concludes that the residents, staff, and teachers

at the Division of Youth Corrections’ facility are “members of the

public” for purposes of the statute and, thus, sufficient evidence

established that the juvenile exposed his genitals in a place “where

the conduct may reasonably be expected to be viewed by members

of the public.” COLORADO COURT OF APPEALS 2019COA22

Court of Appeals No. 16CA0236 Mesa County District Court No. 15JD243 Honorable Thomas M. Deister, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of D.C.,

Juvenile-Appellant.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE DUNN Márquez* and Casebolt*, JJ., concur

Announced February 21, 2019

Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

Megan A. Ring, Colorado State Public Defender, Ryann S. Hardman, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2018. ¶1 D.C. and E.L. were committed to the Division of Youth

Corrections (DYC). During their DYC science class, D.C. exposed

one of his testicles to E.L. E.L. reported the incident, and the

prosecution filed a delinquency petition, alleging that D.C.

committed an act that, if committed by an adult, would constitute

public indecency. After a bench trial, the juvenile court adjudicated

D.C. delinquent.

¶2 D.C. appeals, contending that insufficient evidence supported

the adjudication. We disagree and therefore affirm.

I. Sufficiency of the Evidence

¶3 D.C. argues the prosecution failed to establish that the DYC

classroom, where D.C. exposed his testicle, was a “public place”

under the public indecency statute, § 18-7-301(1), C.R.S. 2018. We

are persuaded the evidence was sufficient to support the

adjudication. We, however, come to this conclusion not because

the classroom was a public place (an issue we don’t reach) but

because D.C. exposed himself where members of the public were

reasonably likely to see it.

1 A. Standard of Review

¶4 We review challenges to the sufficiency of evidence de novo.

People in Interest of G.B., 2018 COA 77, ¶ 13. In doing so, we must

determine whether the evidence, when viewed as a whole and in the

light most favorable to the prosecution, is substantial and sufficient

to support a conclusion by a rational fact finder that the juvenile

committed the act beyond a reasonable doubt. Id. We give the

prosecution the benefit of every reasonable inference that might

fairly be drawn from the evidence. People v. Perez, 2016 CO 12,

¶ 32.

¶5 We likewise interpret the public indecency statute de novo.

See People v. Halbert, 2013 COA 95, ¶ 11. We give the statutory

words their plain and ordinary meanings, and, if the statute is

unambiguous, we apply it as written. Id.

B. Public Indecency

¶6 As relevant here, a person commits public indecency by

knowingly exposing his genitals to the view of another under

circumstances that are likely to cause affront or alarm “in a public

place or [in a place] where the conduct may reasonably be expected

to be viewed by members of the public.” § 18-7-301(1)(e). The

2 statute therefore identifies two different ways to commit the crime of

public indecency — exposing oneself “in a public place” or exposing

oneself in a place where members of the public “may reasonably be

expected” to view the exposure. See id.; see also Willhite v.

Rodriguez-Cera, 2012 CO 29, ¶ 18 (“[T]he use of the disjunctive ‘or’

reflects a choice of equally acceptable alternatives.”); cf. Friend v.

People, 2018 CO 90, ¶¶ 18-19 (Where a criminal statute sets forth

different ways to commit a crime, separated by the disjunctive “or,”

it “prescribes a single crime” that “can be committed in alternate

ways.”).

¶7 Responding to D.C.’s motion for judgment of acquittal at trial,

the prosecution argued that it had presented sufficient evidence

establishing that the DYC classroom was a “public place” or that

the exposure occurred in a place “where the conduct might

reasonably ha[ve] been expected to be viewed by members of the

public.” 1 The juvenile court recognized that DYC residents,

teachers, and staff are “members of the public,” but ultimately

——————————————————————— 1 D.C. didn’t challenge the sufficiency of evidence as to any other

element of the public indecency statute at trial, nor does he on appeal.

3 denied the motion because it concluded that the DYC classroom

was a “public place.”

¶8 The parties disagree on whether the DYC classroom is a

“public place” under the public indecency statute. But we need not

wade into this disagreement because sufficient evidence showed

that D.C. exposed his genitals in a place “where the conduct may

reasonably be expected to be viewed by members of the public.”

§ 18-7-301(1); see People v. Steerman, 735 P.2d 876, 879 (Colo.

1987) (reinstating a jury verdict vacated by the district court

because sufficient evidence supported a statutory alternative for

committing the charged crime); People v. Prendergast, 87 P.3d 175,

186 (Colo. App. 2003) (rejecting the defendant’s sufficiency of the

evidence challenge when the jury instruction phrased an element of

the crime in the disjunctive and sufficient evidence supported the

alternative manner to commit the crime); cf. People v. Dunaway, 88

P.3d 619, 629 n.9 (Colo. 2004) (when elements of a crime are listed

in the “disjunctive,” “proof of one” is sufficient); People v. Viduya,

703 P.2d 1281, 1292 (Colo. 1985) (“[When t]he statute describes

two ways in which this offense can be committed[,] . . . [i]t is then

4 proper to instruct the jury in the disjunctive, requiring conviction if

any of the statutory alternatives is established by the evidence.”).

¶9 In that regard, E.L. testified that nine or ten other students

and a teacher were in the DYC classroom when D.C. exposed

himself. He also said that DYC staff were outside the classroom.

Another student confirmed that the teacher and other students

were present at the time of the incident. And a correctional officer

testified that DYC staff go in and out of the classrooms and that

they “use the classrooms for lots of different things.” The officer

also explained that the juvenile residents (under staff supervision)

may go in and out of the classrooms during school hours and that

at times parents can “come in and visit” the school for such reasons

as parent-teacher conferences. Given this testimony, the juvenile

court recognized that a “substantial . . . number of members of the

community” are present in the school.

¶ 10 Viewing the evidence in the light most favorable to the

prosecution — as we must — a reasonable fact finder could

conclude that D.C. knowingly exposed his genitals to E.L. in a place

“where the conduct may reasonably be expected to be viewed by

5 members of the public.” § 18-7-301(1). The evidence therefore

sufficiently supports the adjudication.

¶ 11 Attempting to avoid that result, D.C. leans heavily on In re

May, 584 S.E.2d 271 (N.C. 2003), arguing that the DYC residents,

teachers, and staff are not “members of the public” while in the

classroom because, he contends, they are present there “only by

virtue of having been assigned to live there or . . . their

employment.” We see a few problems with this argument.

¶ 12 First, May, is distinguishable. It considered whether sufficient

evidence supported the elements for the common law crime of

“affray” (recognized in North Carolina), when a juvenile was involved

in a physical fight on the grounds of a children’s group home. Id. at

272-73. A necessary element of this crime is that the fight occurred

“in a public place.” Id. at 274. Concluding the prosecution didn’t

present evidence establishing this element, the court reversed the

juvenile’s adjudication. In doing so, it recognized that only

residents and staff of the children’s home (“associates of the

combatants”) witnessed the fight and such witnesses with “strong

ties to the facility” did not “transform the facility . . . into a public

place.” Id. at 277. May did not hold that residents and staff of a

6 juvenile facility can’t be members of the public. See id. at 276-77.

Thus, May adds little to our analysis.

¶ 13 Second, the public indecency statute does not require that the

“members of the public” actually see the exposure, just that the

exposure occur in a place where members of the public “may

reasonably be expected” to see it. § 18-7-301(1). D.C.’s argument,

therefore, doesn’t account for the testimony that family members

can (and do) visit the DYC school. These nonstaff members of the

public “may reasonably be expected” to view conduct in the school,

even if they might not have been physically present when D.C.

exposed himself. This undisputed evidence alone supports the

adjudication.

¶ 14 Third, we see no reason why DYC teachers, staff, and juvenile

residents are not “members of the public.” After all, a “member”

means “one of the individuals composing a society, community,

association, or other group.” Webster’s Third New International

Dictionary 1408 (2002). The legislature didn’t exclude teachers,

staff, or juvenile DYC residents from being “members of the public”

in the public indecency statute. And we are unaware of any

authority stripping DYC teachers and staff of their public

7 membership simply due to their place of employment. Cf. Doe v.

Colo. Dep’t of Pub. Health & Env’t, 2018 COA 106, ¶ 38 (“‘[M]ember’

plainly means something different than ‘employee.’”) (cert. granted

Jan. 14, 2019). In the same way, juvenile DYC residents’ inability

to freely leave the facility doesn’t mean they lose their status as

“members of the public” entitled to protection from public

indecency.

¶ 15 In fact, People v. Hoskay, 87 P.3d 194 (Colo. App. 2003),

reached a similar conclusion, albeit in a slightly different context.

There, the defendant was convicted of public indecency for having

sexual intercourse in the dormitory room of a detoxification facility.

Id. at 198. The division rejected the defendant’s sufficiency

argument, concluding that “[t]he evidence established that the

dormitory room of the detoxification facility was open to [those]

admitted to the facility, as well as to the staff.” Id. at 199. It thus

held that sufficient evidence supported the jury’s finding that the

room was “a place where sexual conduct may reasonably have been

expected to be viewed by members of the public.” Id.

¶ 16 And our conclusion is consistent with courts in other

jurisdictions, which have found that staff and residents of

8 correctional facilities may be members of the public when

considering similar crimes. See State v. Narcisse, 833 So. 2d 1186,

1192 (La. Ct. App. 2002) (upholding the defendant’s conviction for

obscenity in public view when he masturbated in front of jail

infirmary staff); People v. Williams, 603 N.W.2d 300, 302 (Mich. Ct.

App. 1999) (concluding that oral sex in a jail interview room was

committed in a place where members of the public could have been

exposed, including “jail personnel, attorneys, and visitors”), vacated

in part, 613 N.W.2d 721 (Mich. 2000); cf. State v. Black, 545 S.W.2d

617, 619 (Ark. 1977) (concluding that oral sex in the city jail’s

“drunk tank” occurred in a public place where jail staff, other

inmates, and people on public tours could view the act); People v.

Giacinti, 358 N.E.2d 934, 937 (Ill. App. Ct. 1976) (affirming public

indecency conviction committed in a prison cell that could have

been viewed by prison staff, prisoners, and visiting ministers).

II. Conclusion

¶ 17 For these reasons, we conclude that sufficient evidence

supports D.C.’s public indecency adjudication and therefore affirm

it.

JUDGE MÁRQUEZ and JUDGE CASEBOLT concur.