State v. Beine

162 S.W.3d 483, 2005 WL 949241

• Court: Supreme Court of Missouri
• Decided: May 31, 2005
• Docket: SC 86190
• Status: Published

Opinions

CHARLES B. BLACKMAR, Senior Judge.

This case comes to the writer on recent reassignment.

James Beine was employed as a counsel- or at the Patrick Henry Elementary School in St. Louis City. During the 2000-2001 school year one of Mr. Beine’s duties was to prevent disruptive behavior by students in the school’s halls and restrooms. To perform this duty, Mr. Beine often had to enter the restrooms designated for males.

During the 2000-2001 school year, all restrooms in the school were designated only as being for males, females, or unisex. No restrooms were expressly designated for students only, and adults sometimes used the large public restrooms frequented by the students.

K.L., C.M., and J.M., three male students at Patrick Henry under the age of 14, asserted that in the spring of 2001, Mr. Beine exposed himself to them while they were using the restroom near the school gym.

K.L. and C.M. testified that sometime in the spring of 2001 Mr. Beine entered the restroom while they were using it. Mr. Beine proceeded to use a urinal next to the boys. C.M. and K.L. further allege that Mr. Beine stood 8 or 4 feet from the urinal and urinated into it in an arc. K.L. and C.M. claimed that they could see Mr. Beine’s “private part.”

J.M., C.M.’s younger brother, testified that on another occasion in the spring of 2001, he entered the restroom while Mr. Beine was using a urinal. J.M. proceeded also to use a urinal and then wash his hands at the sink while Mr. Beine continued to use the urinal. As J.M. was washing his hands, a group of boys entered the restroom and began causing a ruckus. J.M. claimed that Mr. Beine turned from the urinal and told the boys to “shut up.” Mr. Beine’s pants were allegedly unzipped and his penis exposed when he turned to discipline the boys. Mr. Beine quickly turned back and zipped up his pants before proceeding to prevent the restroom disturbance.

Mr. Beine was initially indicted on three counts of sexual misconduct involving a child by indecent exposure, in violation of section 566.083.1(1)¹, reading as follows:

A person commits the crime of sexual misconduct involving a child if the person:

(1) Knowingly exposes the person’s genitals to a child less than fourteen years of age in a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child less than fourteen years of age.

A fourth count, involving K.L., was added later. The jury found Mr. Beine guilty on all four counts. The trial court accepted the jury’s recommendation and sentenced Mr. Beine to four years on each count. It ordered three of the sentences to be served consecutively and one to be served concurrent with the consecutive sentences for a total of twelve years imprisonment. Mr. Beine appealed. Because he challenges the validity of a state statute, this Court has jurisdiction. Mo. Const, art. V, sec. 3.

DISCUSSION

The guilty verdict on all four counts must be reversed because the evidence adduced by the state at trial is insufficient to convict Mr. Beine of any of the charges. On appeal, the state is obliged to point to substantial evidence in support of each of the essential elements of the offense charged. The state has failed to do so in this case.

There is no question that the appellant knowingly exposed his genitals to persons under the age of fourteen. This is often necessary in a men’s restroom. There is serious question, however, about the sufficiency of the evidence to support the charges “that the defendant [exposed his genitals] in a manner that would cause a reasonable adult to believe that such conduct was likely to cause affront or alarm to a child less than fourteen years of age.”

The state is not required to show that any child was actually affronted or alarmed. There was no direct evidence as to how a reasonable adult might react to the appellant’s behavior, and there is no citation that sheds any light on how that proposition might be established by evidence.

The state puts strong reliance on the testimony of a fellow inmate of an Illinois jail as to a conversation he said he had with the appellant, after he was arrested on the present charges. Conceding the jury’s right to believe this testimony, and overlooking the notorious unreliability of jailhouse snitches, the testimony still manifestly lacks substance. It does not show anything about the appellant’s state of mind when he committed the acts shown by the evidence. What it shows, rather, is a realization after the fact that something about the restroom encounter, or any other encounter for that matter, bothered some boys. The testimony proves nothing about how the appellant’s conduct might appear to a reasonable adult at the time it occurred.

One of the appellant’s duties at the school was to monitor the restroom. Anybody who has attended a public grade school knows that boisterous behavior is not unusual in restrooms, especially when students are released in substantial numbers for recess. Thus, the appellant was in a place where his duties required him to be. When no boys are present, there is no need for a monitor. There was no prohibition on his using the restroom for his personal needs while he was properly there. It is quite common for men and boys to use a common facility at sporting events, Boy Scout camps, horse shows, and other public events. In so doing, it is necessary for the users to expose their private parts. Fathers regularly take their pre-K sons into public restrooms. The evidence that on two occasions the appellant stood at a distance from the urinal and urinated in an arc in the presence of the boys cannot reasonably be construed as likely to cause affront or alarm. The boys used such phrases as “embarrassed” and “funny” when talking about their reaction to the incident, but these hardly equate to “affront”' or “alarm.” The argument that the children were not accustomed to any adults being in the restroom when they were present is at war with the admitted evidence that the appellant had the duty of monitoring the restroom.

State v. Moore, 90 S.W.3d 64, 67-69 (Mo. banc 2002), a case on which the state places strongly reliance, approves the dictionary definition of “affront” as “a deliberately offensive act or utterance; an offense to one’s self respect,” and of “alarm” as “apprehension of an unfavorable outcome, of failure, or dangerous consequences; an occasion of excitement or apprehension.” Moore goes on to say, “To be impolite is not enough. To be annoying is insufficient.” “Affront” might connote an exhibition by a man of his genitalia to a woman or girl. “Alarm” would indicate a suggestion of physical encounter to either a male or a female. The record shows no indication of anything that would properly come within these definitions. The state simply has not proved criminal conduct under the applicable statute. For this reason, the judgment on all counts must be reversed.

While this conviction cannot stand because the evidence was insufficient to convict Mr. Beine, this conviction also cannot stand because the portion of the statute upon which Mr. Beine was charged and convicted is patently unconstitutional.²

The appellant essentially claims that section 566.083.1(1) is unconstitutional because it punishes innocent conduct, contains no requirement of criminal intent (mens rea), and does not advise a person in the position of the appellant as to what he must do to avoid violation of the statute when his conduct is otherwise lawful. The only express statutory requirement of knowing conduct is that of knowingly exposing one’s genitals to a child less than 14 years of age. The act of a man in exposing his genitals in the process of urinating in a public restroom is not only innocent but often necessary. The statute contains two essential elements: first, the act of exposing one’s genitals and, second, exposure in a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child ■less than 14 years of age. The appellant argues that this last portion of the subsection is completely lacking in any explicit requirement of a mental state.

In essence, Mr. Beine contends that the statute is overbroad — it prohibits conduct to which a person is constitutionally entitled along with conduct that a person has no right to engage in. Mr. Beine is correct. A person necessarily must knowingly expose himself in a great many situations. One of those situations is when a man uses a public restroom. Even if a reasonable person might think that in some of these restroom situations a child is likely to suffer affront or alarm from witnessing such exposure, that alone cannot make the exposure criminal. If that were the case, no person would ever be able to use a public restroom without risking a criminal charge. As such, the statute prohibits two types of conduct: some of which a person has no right to engage in and the other of which a person has a right to engage in. When a statute prohibits conduct a person has no right to engage in and conduct a person has a right to engage in, the statute is unconstitutionally over-broad. See City of St. Louis v. Burton, 478 S.W.2d 320, 323 (Mo.1972); Christian v. Kansas City, 710 S.W.2d 11, 12-14 (Mo.App.1986).

The state attempts to avoid this result by making two arguments. First, it is argued that even if the statute is unconstitutionally overbroad, the court cannot strike down the statute because Mr. Beine was engaging in conduct that was not constitutionally protected. This argument fails under the doctrine of overbreadth. Under that doctrine, a person may contest the constitutionality of a statute even if he was not engaging in constitutionally protected conduct. For example, in State v. Carpenter, 736 S.W.2d 406 (Mo. banc 1987), this Court struck down a “disturbing the peace” statute as being overbroad, in spite of this writer’s pleas to adopt a saving construction. Carpenter represents the law of this state. See State v. Moore, 90 S.W.3d 64, 71 (Teitelman, J. dissenting).

The state further argues that the overbreadth doctrine should not apply to this case because this is not a first amendment case. It is true that when a case involves a non-speech related constitutional attack “the overbreadth doctAe is rarely applicable.” Caesar’s Health Club v. St. Louis County, 565 S.W.2d 783, 788-89 (Mo.App.1978). But Missouri courts have found the overbreadth doctrine applicable to non-first amendment cases in the past. For example, this Court extended the overbreadth doctrine to strike down a loitering ordinance in City of St. Louis v. Burton, 478 S.W.2d 320, 323 (Mo.1972), despite the fact that no first amendment claims were made. The court of appeals relied on Burton to extend the over-breadth doctrine and strike down a solicitation ordinance in Christian v. Kansas City, 710 S.W.2d 11, 12-14 (Mo.App.1986), even when the appellant made no first amendment arguments. Like the solicitation ordinance in Christian, the statute in this case “reaches beyond conduct which is calculated to harm and could be used to punish conduct which is essentially innocent,” so it is overbroad. Id. at 13.

The purpose of the overbreadth doctrine is to ensure that a statute does not punish innocent conduct. The Court may take judicial notice that all persons have to relieve themselves regularly, that the need for such relief may arise suddenly, that public facilities are regularly provided, and that males of all ages regularly use the facilities provided for them, necessarily exposing their genitals in the process. Section 566.083.1(1) leaves adults in a state of uncertainty about how they may take care of their biological needs without danger of prosecution when a child is present in the same public restroom. Because a person’s right to use public restrooms is about as fundamental a right as one can imagine, probably equal to or more fundamental than speech rights, the overbreadth doctrine should extend to this case and permit Mr. Beine to contest section 566.083.1(1) even if he had no right to engage in the conduct he engaged in.

But it is not clear that Mi*. Beine had no right to do what he did. The evidence that the state introduced at trial essentially showed only that Mr. Beine used a public restroom while boys were present and stood at a little further distance from the urinal than men usually do, and that Mr. Beine accidentally turned around without zipping his pants zipper up to discipline some boys that were causing a disturbance in the restroom. This is constitutionally protected conduct, so even if the over-breadth doctrine did not apply to this case, Mr. Beine can still contest the constitutionality of the statute by arguing that it prohibits conduct to which he is constitutionally entitled to engage in. So the aspect of the overbreadth doctrine as applied in Carpenter, that of allowing an appellant to take advantage of the doctrine because of the effect of the statute on others, even though the appellant’s conduct may not represent protected speech, has no application here, because this appellant was engaging in lawful, and necessary, conduct.

The state also seeks to hold that section 566.083.1(1) is constitutional by applying the “knowingly” mens rea requirement to both the exposure and to the manner of exposure requirements enumerated in the statute. Specifically, the state argued that 566.083.1(1) requires the state to present evidence not only that the appellant knowingly exposed his genitals to a child less than 14 years old, but also that he knowingly did so in a manner that would cause a reasonable adult to believe that the conduct was likely to cause affront or alarm to a child of less than 14 years. The. state thereby adds a word that the legislature did not see fit to include, suggesting that the addition is appropriate pursuant to the Court’s duty to sustain a statute as against a constitutional challenge if at all possible.

The only authority relied upon by the state to rewrite section 566.083.1(1) is State v. Moore, 90 S.W.3d 64, 67 (Mo. banc 2002), but Moore involved section 566.095, a sexual solicitation statute. That statute makes criminal a defendant’s conduct when the defendant “solicits ... another person to engage in sexual conduct under circumstances in which he knows that his requests or solicitation is likely to cause affront or alarm.” That statute implies knowing conduct in the act of solicitation because knowledge is inherent in the word “solicitation.” The statute also specifically enumerates a knowing mens rea to the “likely to cause affront or alarm” requirement. As such, the statute governing Moore contains the explicit language of scienter that section 586.088.1(1) lacks.

Moore also provides little if any instruction for this case because Moore’s facts are very different from the facts in this case. There a 61-year-old man solicited a 13-year-old virgin to perform an act of fellatio on him. The Court had no problem in finding that Moore’s conduct was within “a core of unprotected expression” that could be punished, even by a statute that is rather broadly drawn.

Section 566.083.1(1) differs from the statute involved in Moore by referring to exposure in “a manner that would cause a reasonable adult to believe that the conduct is likely to cause affront or alarm to a child less than fourteen years of age,” rather than focusing on the effect of the exposure on the child or children witnessing the exposure. The accused is required to guess what a hypothetical reasonable adult might believe as to the effect on the children witnessing the event. No precedent for this kind of requirement has been cited. It is a slim reed to support a 12-year sentence. The Moore statute requires a direct and knowing address to the child, who presumably would be the person affronted or alarmed. It is clearly distinguishable.

CONCLUSION

The judgment on all counts is reversed. Inasmuch as the state has had an opportunity of proving its case, and has failed to do so, double jeopardy prohibits a retrial. The case, then, should be remanded with directions to enter judgment of acquittal on all counts. State v. Self, 155 S.W.3d 756 (Mo. banc 2005).

WHITE, C.J., WOLFF and TEITELMAN, JJ., concur. STITH J., concurs in part and dissents in part in separate opinion filed. PRICE and LIMBAUGH, JJ., concur in opinion of STITH, J. RUSSELL, J., not participating.

1 . All statutory citations are to RSMo 2000, unless otherwise indicated.

2 . The constitutionality of subdivisions (2) and (3) of section 566.083.1 is not addressed.