State Of Iowa Vs. Troy Harley Jorgensen

• Court: Supreme Court of Iowa
• Decided: December 19, 2008
• Docket: 07–0296
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 07–0296

Filed December 19, 2008

STATE OF IOWA,

Appellee,

vs.

TROY HARLEY JORGENSEN,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Cerro Gordo County,

Carlynn D. Grupp, Judge.

Defendant appeals his conviction for indecent exposure.

DECISION OF COURT OF APPEALS AND DISTRICT COURT

JUDGMENT AFFIRMED.

Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant

Attorney General, Paul L. Martin, County Attorney, and Carlyle D. Dalen

and Steven D. Tynan, Assistant County Attorneys, for appellee. 2

TERNUS, Chief Justice.

The district court convicted the appellant, Troy Jorgensen, of

indecent exposure after store employees, through a closed-circuit video

system, observed him follow an unidentified woman through the store

while repeatedly exposing his penis and masturbating. On appeal, the

court of appeals rejected Jorgensen’s contention there was insufficient

evidence to support his conviction because there was no evidence that he

knew he was being watched on a closed-circuit video system or that he

knew or should have known the employees would be offended by his

conduct. We conclude there is sufficient evidence to support the

elements of the offense of indecent exposure, and therefore, we affirm the

decisions of the district court and court of appeals.

I. Facts and Prior Proceedings.

On June 2, 2006, an employee, working in the loss prevention

department at the Shopko in Mason City, Iowa, was watching activity in

the store on a closed-circuit video system. She noticed a man, later

identified as Troy Jorgensen, walking through the store fondling himself

over his clothes. As the employee continued to watch, she saw the man

expose his penis several times and masturbate. The employee contacted

two fellow employees for assistance. The three employees observed

Jorgensen follow a woman through the store while repeatedly exposing

his penis and masturbating. The woman may have seen Jorgensen’s

penis, but she could not be located later and was never identified.

While one store employee contacted the police, two of the

employees left the video room to locate Jorgensen. When Jorgensen saw

the two employees approach, he stopped fondling himself and attempted

to exit the store. He was, however, detained by an off-duty officer. 3

Upon questioning, Jorgensen claimed he was wearing shorts that

were too small for him and that sometimes the fly would open and

expose his penis. Jorgensen was arrested for indecent exposure.

None of the three store employees who observed Jorgensen’s

behavior via the closed-circuit video system were married to him. All

three stated they were offended by his conduct.

On June 22, 2006, the State filed a trial information charging

Jorgensen with indecent exposure (second offense) in violation of Iowa

Code section 709.9 (2005). Thereafter, Jorgensen entered a plea of not

guilty.

Jorgensen subsequently filed a motion to adjudicate law points.

He argued he did not commit indecent exposure because there was no

evidence to support a finding that he knew the store employees might

have viewed him through a closed-circuit video system. Jorgensen also

asserted there was no evidence he purposefully exposed himself to the

Shopko employees knowing, or under circumstances where he

reasonably should have known, that the act was offensive to the

employees. Therefore, Jorgensen claimed, he could not be convicted of

indecent exposure.

A hearing on the motion was held. The court noted the crime of

indecent exposure contains four distinct elements. The first element

requires either the exposure of the genitals and pubes to someone other

than the actor’s spouse or that the actor committed a sex act in the

presence or view of a third person. The court found the State could not

prove indecent exposure by commission of a sex act under the facts

alleged. It did, however, find the facts sufficient for the State to proceed

under the first alternative: exposure of the genitals and pubes to

someone other than the actor’s spouse. The court further concluded 4

there was sufficient evidence of the other three elements of indecent

exposure.1

Jorgensen waived his right to a jury trial and proceeded to a bench

trial on a stipulated record that included the minutes of testimony and

the amended trial information.2 On December 27, 2006, the district

court issued its ruling, finding the defendant guilty of indecent exposure.

Jorgensen filed a motion for a new trial, asserting the district court

erred in allowing evidence the employees saw him expose himself

through store security cameras. The court had considered this evidence

because it found a reasonable shopper would believe the store would

monitor activities of patrons and/or employees through closed-circuit

video systems. Jorgensen contended he could not have reasonably

known store personnel would see his actions and would be offended by

them. The defendant’s motion was overruled, and the district court

sentenced Jorgensen to a suspended one-year sentence and placed him

on probation.

In his appeal, Jorgensen maintained the State produced

insufficient evidence of indecent exposure. The court of appeals

disagreed and affirmed the defendant’s conviction. We granted further

review and now affirm the decision of the court of appeals and the

judgment of the district court.

II. Scope of Review.

Sufficiency-of-the-evidence challenges are reviewed for correction

of errors at law. State v. Hansen, 750 N.W.2d 111, 112 (Iowa 2008).

1Thecourt also rejected the defendant’s argument the statute was void for vagueness. This conclusion has not been challenged on appeal. 2Thetrial information was amended to delete any reference to a prior indecent exposure conviction. 5

“The district court's findings of guilt are binding on appeal if supported

by substantial evidence.” Id. Evidence is substantial if it would convince

a rational trier of fact the defendant is guilty beyond a reasonable doubt.

State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). “To the extent the

issue presents a question of statutory interpretation, our review is for

correction of errors at law.” State v. Garcia, 756 N.W.2d 216, 219 (Iowa

2008).

III. Merits.

The issue before us is whether there was sufficient evidence to

convict Jorgensen of indecent exposure. Indecent exposure is defined in

Iowa Code section 709.9. In pertinent part it states:

A person who exposes the person’s genitals or pubes to another not the person’s spouse . . . 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.

We have previously broken down the crime of indecent exposure

into four elements:

“1. The exposure of genitals or pubes to someone other than a spouse . . .; 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. Isaac, 756 N.W.2d 817, 819 (Iowa 2008) (quoting State v. Adams,

436 N.W.2d 49, 50 (Iowa 1989)). 6

Jorgensen asserts there was insufficient evidence he was aware he

was being watched by the store employees or that he would have reason

to know his conduct would be offensive to those employees.3 According to Jorgensen, “[n]owhere in the minutes of testimony does it indicate that

the security system cameras were visible to store patrons or that there

were posted signs warning store patrons that they may be watched by

security cameras.” He further claims he did not expose himself to the

employees with the specific intent to arouse his or their sexual desires,

insomuch as he was unaware of their presence via the closed-circuit

video system.

It is undisputed the State lacked sufficient evidence regarding the

defendant’s exposure of his penis to the unidentified woman, the

presumed target of his actions. The question raised by this case is

whether the statute requires knowledge by the actor of the identity of his

actual victim; or, stated somewhat differently, whether the defendant can

be found guilty of exposing himself to an audience of whom he was not

specifically aware. This question has not been previously addressed by

this court.

Our goal in interpreting criminal statutes “ ‘is to ascertain

legislative intent in order, if possible, to give it effect.’ ” State v. Finders,

3The appellant does not challenge whether observation via a closed-circuit video

system itself constitutes exposure for purposes of the statute, only that there was insufficient evidence he was aware he was being observed via video camera. Cf. State v. Bouse, 150 S.W.3d 326, 331 (Mo. Ct. App. 2004) (holding Missouri statute defining sexual misconduct involving a child did not limit the means or mode of exposure and concluding “expose” included an exposure on the Internet as well as in a public park), with Swire v. State, 997 S.W.2d 370, 373–74 (Tex. Ct. App. 1999) (Burgess, J., dissenting) (asserting under Texas statute, “indecent exposure requires that a defendant actually expose himself to another individual” and therefore concluding there was insufficient evidence of indecent exposure because the defendant was unaware of the video camera recording his actions, although noting exposure to a known video camera would be a different question). 7

743 N.W.2d 546, 548 (Iowa 2008) (quoting State v. Conley, 222 N.W.2d

501, 502 (Iowa 1974)). “ ‘We consider the object sought to be

accomplished and the evil sought to be remedied, and seek a reasonable

interpretation that will best effect the legislative purpose and avoid

absurd results.’ ” Id. (quoting State v. Byers, 456 N.W.2d 917, 919 (Iowa

1990)). “ ‘When a statute’s language is clear, we look no further for

meaning than its express terms.’ ” State v. Kamber, 737 N.W.2d 297,

298–99 (Iowa 2007) (quoting State v. Beach, 630 N.W.2d 598, 600 (Iowa

2001)).

Although the statute does not define the term “expose,” we have

held that indecent exposure is “ ‘essentially a visual assault crime.’ ”

State v. Bauer, 337 N.W.2d 209, 211 (Iowa 1983) (quoting Kermit L.

Dunahoo, The New Iowa Criminal Code: Part II, 29 Drake L. Rev. 491,

541 (1979–80)); accord Isaac, 756 N.W.2d at 819. This interpretation

corresponds with the dictionary definition of “expose,” which means “to

lay open to view . . . EXHIBIT, DISPLAY.” Webster’s Third New

International Dictionary 802 (unabr. ed. 2002); accord Merriam-Webster’s

Collegiate Dictionary 409 (10th ed. 2002) (defining “expose” as “to cause

to be visible or open to view”); Black’s Law Dictionary 783 (8th ed. 2004)

(defining “indecent exposure” as “[a]n offensive display of one’s body in

public, esp. of the genitals”). See generally State v. Lane, 743 N.W.2d

178, 182 (Iowa 2007) (noting “ ‘we may refer to prior decisions of this

court and others, similar statutes, dictionary definitions, and common

usage’ to determine [the statute’s] meaning” (quoting State v. Shanahan,

712 N.W.2d 121, 142 (Iowa 2006))). Thus, the first element of the crime

requires the defendant to expose or “cause to be visible or open to view”

his or her genitals or pubes to someone other than a spouse. As this

court noted in discussing a predecessor indecent exposure statute: “The 8

words ‘indecent exposure’ clearly imply that the act is either in the actual

presence and sight of others, or is in such a place or under such

circumstances that the exhibition is liable to be seen by others, and is

presumably made for that purpose, or with reckless and criminal

disregard of the decencies of life. . . . The exposure becomes ‘indecent’

only when [the actor] indulges in such practices at a time and place

where, as a reasonable person, he knows, or ought to know, his act is

open to the observation of others.”4 State v. Martin, 125 Iowa 715, 718,

101 N.W. 637, 638 (1904). This definition presupposes a public

exposure as opposed to a private one.

Nothing, however, in the plain language of the statute limits the

contours of the crime of indecent exposure to those acts involving the

specific victim/viewer targeted by the actor. The statute does not require

the actor to be aware or have knowledge of the specific person or persons

to whom he is exposing himself. The statute also does not explicitly

restrict the mode of exposure. The only limitation on the first element is

that the exposure or act of making visible must be to another person not

the defendant’s spouse. See State v. Sousa, 201 A.2d 664, 666 (Conn.

Cir. Ct. 1964) (“ ‘While the exposure must be intentional and not

accidental, the intent required is only a general one, and need not be

directed toward any specific person or persons.’ ” (quoting Peyton v. Dist.

of Columbia, 100 A.2d 36, 37 (D.C. 1953)); Parnigoni v. Dist. of Columbia,

933 A.2d 823, 826 (D.C. Ct. App. 2007) (under statute that made it

4At the time, Iowa Code section 4938 (1897) provided: Lewdness—indecent exposure. . . . [I]f any man or woman, married or unmarried, is guilty of open and gross lewdness, and designedly makes an open and indecent or obscene exposure of his or her person, or of the person of another, every such person shall be imprisoned in the county jail not exceeding six months, or be fined not exceeding two hundred dollars. 9

unlawful “for any person or persons to make any obscene or indecent

exposure of his or her person,” court concluded the law did “not require

that an accused have a specific intent to expose himself to any particular

person”); see also State v. Stevenson, 656 N.W.2d 235, 240 (Minn. 2003)

(in which relevant question under Minnesota indecent-exposure statute

was whether defendant’s conduct was so likely to be observed “that it

must be reasonably presumed that it was intended to be witnessed,”

court concluded that, “given the location of [defendant’s] vehicle, parked

next to a public sidewalk adjacent to a beach where there were hundreds

of people, it was almost certain that someone would walk by and observe

[the defendant] masturbating,” requirement that conduct was committed

with the deliberate intent of being indecent or lewd was met).

It is reasonable to assume that a person who exposes himself in a

public place runs the risk that he will be observed by more than his

targeted audience, including those viewing by closed-circuit video

systems installed in a public shopping area. It is also reasonable to

assume this unwanted public exposure was the evil the legislature

sought to remedy with this law. See United States v. Boston, 494 F.3d

660, 665 (8th Cir. 2007) (finding probable cause to arrest defendant for

violating section 709.9 when off-duty police officer came upon defendant

masturbating while walking along a trail in a park). The district court

correctly concluded there was sufficient evidence to establish the

defendant exposed his genitals to another person, other than a spouse,

as the minutes of testimony of the three employees confirmed the

employees had observed the defendant expose his penis and none of the

employees were married to the defendant.

There was also sufficient evidence the act was done to arouse the

sexual desires of the defendant, thus satisfying the second element of the 10

crime. The defendant acknowledges “it is reasonable to conclude that he

was attempting to arouse or satisfy his own sexual desire” but notes his

desire was “with respect to this unidentified woman,” not the store

employees who saw him. While this observation may be true, it is

irrelevant to our inquiry here. The relevant inquiry is whether, at the

time of the exposure, the actor was intending to arouse his own sexual

desires or the sexual desires of the unwilling viewer. See Iowa Code

§ 709.9.

The requisite intent to arouse or gratify the sexual desire of any

person can be inferred from an accused’s conduct, remarks, and all

surrounding circumstances. Isaac, 756 N.W.2d at 820. Here, the

minutes of testimony established that the defendant, while wandering

through the store, fondled his penis through his clothing, and then, as

he followed an unidentified woman through the store, removed his penis

from his shorts and openly masturbated. This behavior with its clearly

sexual motivation was observed by the three Shopko employees while it

was occurring, thereby meeting the second requirement. See State v.

Plenty Horse, 741 N.W.2d 763, 765 (S.D. 2007) (holding “the prosecution

must link the exhibition of one’s genitals to the intent to seek sexual

gratification”); cf. Isaac, 756 N.W.2d at 820 (noting “our statute requires

[a sexual motivation] at the time of exposure to the viewer” and finding

that, at the time of the defendant’s exposure to the police officer, the

required purpose no longer existed).

The third element requires the viewer be offended by the conduct.

Here, the minutes of testimony established that all three store employees

who viewed the defendant’s public act of masturbation were offended.

Thus, substantial evidence supports the third element. 11

The fourth and final element requires “the actor knew, or under

the circumstances should have known, the victims would be offended.”

Bauer, 337 N.W.2d at 211; accord Iowa Code § 709.9. The incident

report prepared by one of the store employees, who was continuing to

observe the defendant on the closed-circuit video system as the other two

employees approached him, stated the defendant continued to fondle

himself after walking past the unidentified female shopper, but when he

observed the two store employees approaching him, he quit fondling

himself and proceeded to attempt to exit the store. This action suggests

Jorgensen knew the employees would find his conduct offensive, thereby

meeting the fourth element of the offense. See Bauer, 337 N.W.2d at 211

(“ ‘It is only exposure with a sexual motivation, inflicted upon an unwilling

viewer, which will constitute the offense.’ ” (quoting 4 John J. Yeager &

Ronald L. Carlson, Iowa Practice: Criminal Law and Procedure § 217, at

63 (1979)) (emphasis added)). Moreover, applying common mores,

Jorgensen should have known that store employees would find his acts

of unsolicited public masturbation to be offensive. Cf. Hankins v. State,

85 S.W.3d 433, 435 (Tex. Ct. App. 2002) (under indecent exposure

statute that requires recklessness about whether another is present who

will be offended by act, Texas court held rational fact finder could have

concluded defendant who exposed himself in adult book store was

reckless because, as far as he knew, the other person was present simply

to watch a movie, not to see the defendant’s body).

IV. Conclusion.

The district court’s finding that the defendant was guilty of

indecent exposure when he exposed himself to three store employees is

supported by substantial evidence. Although the three employees were

not the object of Jorgensen’s sexual desire, Jorgensen’s exposure of his 12

genitals was sexually motivated at the time they witnessed it. In

addition, the viewers were offended, and Jorgensen knew or should have

known under the circumstances these unwilling viewers would be

offended. The district court’s judgment is affirmed.

All justices concur except Baker, J., who takes no part.