KONENKAMP, Justice.
[¶ 1.] Under South Dakota law, the crime of indecent exposure prohibits the public exposure of one’s genitals for the purpose of arousing sexual desire in oneself or another. Defendant was convicted of this offense after he was surprised by a security guard while alone in a public building attempting to have sexual intercourse with a mannequin. Although counsel for defendant offers several theories on why this conviction should be reversed, the only meritorious question before us is whether defendant’s conduct fell within the purview of the statute. We conclude that because the indecent exposure statute criminalizes sexual gratification by displaying or showing one’s genitals in public, and the evidence shows that defendant did not seek to gratify himself or arouse someone else by the act of publicly exposing his genitals, the conviction cannot stand.
Background
[¶ 2.] In the late afternoon of November 14, 2005, defendant was walking to the YMCA in Sioux Falls, South Dakota. On his way, he stopped by the Washington Pavilion and ventured upstairs. Shortly afterwards, he was surprised by a security guard in the Alumni Room, a small third-floor space containing high school mementos and photos honoring students who had attended Washington High School. There were no other patrons in the area at the time. The guard found defendant lying on top of a mannequin, with its band uniform partially removed. It appeared that defendant was having simulated intercourse. Defendant was clothed, but his pants were partially down, and a wad of paper was in his hand. Defendant rolled off the mannequin, turned away, and began adjusting his pants. Defendant was told to remain where he was, and the police were called. The guard had walked upon this scene because he noticed that the door to the room was closed. This door, according to the guard, was to be left open and, to his knowledge, had only been closed three times in the three years he had worked there. When the guard opened the door and walked in the room, the lights were off.
[¶ 3.] When questioned about what he was doing, defendant, visibly ashamed, declined to talk about it. A low functioning nineteen-year old, defendant has been classified as a high school sophomore for the past three years. His reading comprehension remains at the level of a fourteen-year old; his math skills, that of an eight-year old; and his written language, that of a thirteen-year old. With more questioning, he finally admitted that because he had not seen his girlfriend in a year his needs had not been met. He worried about what would be told to his mother.
[¶ 4.] Defendant was charged with indecent exposure under SDCL 22-24-1.2 (2005), a class one misdemeanor. A court trial was held before a magistrate, who found defendant guilty. He was granted a suspended imposition of sentence and placed on supervised probation for three years. With this conviction, he must register as a sex offender. SDCL 22-24B-1(11) (2005); SDCL 22-24B-2 (2005). His appeal in circuit court was affirmed. Defendant appeals to this Court, asserting that there was insufficient evidence to convict him of indecent exposure under the statute.
Standard of Review
[¶ 5.] “Our review of the sufficiency of the evidence is de novo.”
State v. Tofani,
2006 SD 63, ¶ 35, 719 N.W.2d 391, 400 (citing
State v. Disanto,
2004 SD 112, ¶ 14, 688 N.W.2d 201, 206). As we recently stated in
Tofani:
“[A]ll of the evidence
is to be considered in the light most favorable to the prosecution.”
Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). There must be substantial evidence to support the conviction.
Glasser v. United States,
315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942),
superseded on other grounds, Bourjaily v. United States,
483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). The “inquiry does not require [an appellate] court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ”
Jackson,
443 U.S. at 318-19, 99 S.Ct. at 2789, 61 L.Ed.2d 560 (emphasis in original) (quoting
Woodby v. Immigration and Naturalization Serv.,
385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966)). “Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Id.
Evidence is insufficient, and therefore not substantial, when no rational trier of fact could find guilt beyond a reasonable doubt.
Id.
Id.
In construing a statute, we attempt to ascertain its intent.
Krukow v. S.D. Bd. of Pardons and Paroles,
2006 SD 46, ¶ 12, 716 N.W.2d 121, 124 (quoting
State v. Barton,
2001 SD 52, ¶ 8, 625 N.W.2d 275, 278). The “ ‘intent must be determined from the statute as a whole, as well as enactments relating to the same subject.’”
Id.
(citations omitted).
Analysis and Decision
[¶ 6.] Conceding that having sex in public with a mannequin would likely offend people, defense counsel nonetheless contends that defendant did not “flash” or expose his genitals “in hopes of being observed, thereby gratifying himself sexually.” The offense of indecent exposure is defined in SDCL 22-24-1.2 (2005):
A person commits the crime of indecent exposure if, with the intent to arouse or gratify the sexual desire of any person, the person exposes his or her genitals in a public place under circumstances in which that person knows that person’s conduct is likely to annoy, offend, or alarm another person.
Clearly, the “with the intent to” language proclaims that indecent exposure should be defined as a specific intent crime. When a statute has language requiring a specific design or purpose for doing a prohibited act, such language usually creates a specific intent offense.
State v. Schouten,
2005 SD 122, ¶ 16, 707 N.W.2d 820, 825-26;
see also
SDCL 22-1-2(1)(b).
[¶ 7.] Because this is a specific intent crime, the prosecution must link the exhibition of one’s genitals to the intent to seek sexual gratification by such public exposure.
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KONENKAMP, Justice.
[¶ 1.] Under South Dakota law, the crime of indecent exposure prohibits the public exposure of one’s genitals for the purpose of arousing sexual desire in oneself or another. Defendant was convicted of this offense after he was surprised by a security guard while alone in a public building attempting to have sexual intercourse with a mannequin. Although counsel for defendant offers several theories on why this conviction should be reversed, the only meritorious question before us is whether defendant’s conduct fell within the purview of the statute. We conclude that because the indecent exposure statute criminalizes sexual gratification by displaying or showing one’s genitals in public, and the evidence shows that defendant did not seek to gratify himself or arouse someone else by the act of publicly exposing his genitals, the conviction cannot stand.
Background
[¶ 2.] In the late afternoon of November 14, 2005, defendant was walking to the YMCA in Sioux Falls, South Dakota. On his way, he stopped by the Washington Pavilion and ventured upstairs. Shortly afterwards, he was surprised by a security guard in the Alumni Room, a small third-floor space containing high school mementos and photos honoring students who had attended Washington High School. There were no other patrons in the area at the time. The guard found defendant lying on top of a mannequin, with its band uniform partially removed. It appeared that defendant was having simulated intercourse. Defendant was clothed, but his pants were partially down, and a wad of paper was in his hand. Defendant rolled off the mannequin, turned away, and began adjusting his pants. Defendant was told to remain where he was, and the police were called. The guard had walked upon this scene because he noticed that the door to the room was closed. This door, according to the guard, was to be left open and, to his knowledge, had only been closed three times in the three years he had worked there. When the guard opened the door and walked in the room, the lights were off.
[¶ 3.] When questioned about what he was doing, defendant, visibly ashamed, declined to talk about it. A low functioning nineteen-year old, defendant has been classified as a high school sophomore for the past three years. His reading comprehension remains at the level of a fourteen-year old; his math skills, that of an eight-year old; and his written language, that of a thirteen-year old. With more questioning, he finally admitted that because he had not seen his girlfriend in a year his needs had not been met. He worried about what would be told to his mother.
[¶ 4.] Defendant was charged with indecent exposure under SDCL 22-24-1.2 (2005), a class one misdemeanor. A court trial was held before a magistrate, who found defendant guilty. He was granted a suspended imposition of sentence and placed on supervised probation for three years. With this conviction, he must register as a sex offender. SDCL 22-24B-1(11) (2005); SDCL 22-24B-2 (2005). His appeal in circuit court was affirmed. Defendant appeals to this Court, asserting that there was insufficient evidence to convict him of indecent exposure under the statute.
Standard of Review
[¶ 5.] “Our review of the sufficiency of the evidence is de novo.”
State v. Tofani,
2006 SD 63, ¶ 35, 719 N.W.2d 391, 400 (citing
State v. Disanto,
2004 SD 112, ¶ 14, 688 N.W.2d 201, 206). As we recently stated in
Tofani:
“[A]ll of the evidence
is to be considered in the light most favorable to the prosecution.”
Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). There must be substantial evidence to support the conviction.
Glasser v. United States,
315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942),
superseded on other grounds, Bourjaily v. United States,
483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). The “inquiry does not require [an appellate] court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ”
Jackson,
443 U.S. at 318-19, 99 S.Ct. at 2789, 61 L.Ed.2d 560 (emphasis in original) (quoting
Woodby v. Immigration and Naturalization Serv.,
385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966)). “Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Id.
Evidence is insufficient, and therefore not substantial, when no rational trier of fact could find guilt beyond a reasonable doubt.
Id.
Id.
In construing a statute, we attempt to ascertain its intent.
Krukow v. S.D. Bd. of Pardons and Paroles,
2006 SD 46, ¶ 12, 716 N.W.2d 121, 124 (quoting
State v. Barton,
2001 SD 52, ¶ 8, 625 N.W.2d 275, 278). The “ ‘intent must be determined from the statute as a whole, as well as enactments relating to the same subject.’”
Id.
(citations omitted).
Analysis and Decision
[¶ 6.] Conceding that having sex in public with a mannequin would likely offend people, defense counsel nonetheless contends that defendant did not “flash” or expose his genitals “in hopes of being observed, thereby gratifying himself sexually.” The offense of indecent exposure is defined in SDCL 22-24-1.2 (2005):
A person commits the crime of indecent exposure if, with the intent to arouse or gratify the sexual desire of any person, the person exposes his or her genitals in a public place under circumstances in which that person knows that person’s conduct is likely to annoy, offend, or alarm another person.
Clearly, the “with the intent to” language proclaims that indecent exposure should be defined as a specific intent crime. When a statute has language requiring a specific design or purpose for doing a prohibited act, such language usually creates a specific intent offense.
State v. Schouten,
2005 SD 122, ¶ 16, 707 N.W.2d 820, 825-26;
see also
SDCL 22-1-2(1)(b).
[¶ 7.] Because this is a specific intent crime, the prosecution must link the exhibition of one’s genitals to the intent to seek sexual gratification by such public exposure. Thus, it must be proved that the offender exhibited or displayed his genitals with the intent of arousing himself or someone else. This is not how the circuit court and the magistrate court interpreted the statute. It appears that they examined each phrase in isolation rather than the statute as a whole to determine wheth
er defendant had the requisite intent. This approach ignores the structure and purpose of the enactment. The statute was intended to criminalize the act of displaying or showing one’s genitals in public for sexual gratification.
[¶ 8.] South Dakota’s Pattern Jury Instructions accurately set forth the elements of the crime: (1) “The defendant exposed (his)(her) genitals in a public place;” (2) “The defendant did so under circumstances that (he)(she) knew that (his)(her) conduct was likely to (annoy) (offend) (alarm) another person;” and (3) “The defendant did so with the intent to arouse or gratify the sexual desire of any person.” South Dakota Pattern Jury Instruction 3-3-30.
To be guilty of the offense, first, defendant must have exposed himself in public. Second, defendant must have exposed himself in public under circumstances he knew would likely offend, annoy, or alarm another person. Third, defendant must have exposed himself in public with “the intent to arouse or gratify the sexual desire of any person.”
Id.
[¶ 9.] Although defendant had the observable intent to sexually gratify himself, no evidence demonstrated that he intended to arouse or gratify his (or someone else’s) sexual desire by the act of exposing his genitals in public. On the contrary, while he was alone and the lights were off, defendant closed the door and went over by a desk. It was late in the afternoon, near to closing time, and no other patrons were in the area. Nothing establishes that his conduct was done with the specific intent to generate sexual arousal or gratification by the act of publicly exposing, i.e., displaying or offering to the public view, his genitals. Therefore, defendant’s act, lewd though it may have been, does not fall within the purview of the indecent exposure statute.
[¶ 10.] Reversed.
[¶ 11.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.