Better Listen to Mom

Sometimes, these articles answer burning questions, but not today. Questions like “why something versus nothing?” may get answered later. Today, I’m here to tell you what’s happening in Florida’s criminal courts. As always, I’m attempting to avoid big legal words that make some lawyers feel important, but fail to convey information in a way that can be digested by folks who haven’t gone to law school.

The question for today is: What is the difference between exposing your private parts, and exposing them in a lewd way? The circumstances under which you show your private parts will determine if the case is a misdemeanor, or a felony prison sentence. This is the sort of problem that exhibitionists run into when they’re caught. It seems to me that exhibitionists should simply camp out at clothing optional resorts like Paradise Lakes, but somehow, they never figure this out.

WARNING: I’m about to tell a war story–feel free to skip the next two paragraphs if you think you’ve heard this one before. It seems that the longer I practice criminal defense, the more war stories uncontrollably shoot out of my mouth. With the disclaimer out of the way, pack-it-up-pack-it-in-let me begin:

There’s a difference between exposing your private parts for a misdemeanor, and exposing your private parts all the way to a felony lewd or lascivious exhibition conviction. I had a client years ago that had already been to prison for masturbating in front of kids under the age of 18. Sometime after his prison release, he’s standing across the street from a few high school cheerleaders after their practice for the day (which he, no doubt, enjoyed watching), and he exposes his penis to the girls. The term “expose” may be an understatement, but the term will suffice for our discussion.

The cops arrive and get a written statement from one of the cheerleaders–she’s 18 years old (some of the girls listed as victims were under 16). Luckily, my client gets arrested for several misdemeanors involving the exposure of sexual organs. He and I show up for arraignment and plea to everything as charged, in an attempt to block the filing of felony charges involving lewd exposure. The prosecutor objects to our plea because he wants more time for the “sex crimes division” to review the case, but he didn’t nolle pros the charges to prevent the plea. The judge went ahead and sentenced my client to the max on misdemeanors. Felony charges were blocked, and my client was out of jail in a few months, rather than years and years.

It’s a lot harder to undo felony charges on the back end, than it is to simply block them on the front end. The case in point is Usry v. State, 118 So. 3d 988 (Fla. 1st DCA 2013). Usry was convicted of lewd or lascivious exhibition, a felony. The victim in this case was thirteen years old, and she witnessed Usry expose his genitals to her on numerous occasions over the course of one month. The victim’s mom confronted Usry about the exposure, but that didn’t stop the show. Usry kept going even after mom’s repeated warnings, and he eventually got himself arrested. At trial, the thirteen year old noted that Usry not only exposed his penis, but he waved it at her, and moved his hands back and forth on his private part. Now, I’m no rocket scientist, but that still sounds lewd to me, even if it didn’t technically meet the definition of masturbation. And this raises the question presented on appeal, just what sort of behavior constitutes lewd exhibition? Florida Statute section 800.4(7) defines lewd exhibition as:

(a) A person who:

1. Intentionally masturbates;
2. Intentionally exposes the genitals in a lewd or lascivious manner; or
3. Intentionally commits any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity
4. In the presence of a victim who is less than 16 years of age, commits lewd or lascivious exhibition.

The charge listed above can (and often will) send you to prison, it’s a second degree felony (15 years prison, max). If the exposure of private parts is not lewd, the crime may only constitute misdemeanor exposure of sexual organs, a first degree misdemeanor (1 year jail, max). This crime is found in Florida Statute 800.03,

It is unlawful to expose or exhibit one’s sexual organs in public or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or to be naked in public except in any place provided or set apart for that purpose.

Usry’s attorney was arguing that the exposure of his private part was just a misdemeanor, because there was (technically) no masturbation, no lewdness, and no simulation of sexual activity. If he wins this argument, his client goes home with a misdemeanor. Well, he lost this argument. The appeals court found that, even if the girls testimony regarding Usry’s hand moving up and down his private part was not masturbation, they reasoned that “the Legislature did not only prohibit intentional masturbation or the intentional simulation of a sexual act in the presence of a child under the age of sixteen in section 800.4(7). It also prohibited the intentional exposure of a person’s genitals in a lewd or lascivious manner”. Id. at 990. Yep, what he did was lewd, even if it didn’t meet the technical definition of masturbation, or sexual simulation. So the felony charge sticks.

Usry’s criminal defense attorney also argued that his client’s actions demonstrated an “obnoxious intent”–not a sexual intent. The appeals court disagreed, holding that “[a]lthough section 800.03 prohibits the exposure of a person’s sexual organs, the statute does not specifically pertain to victims less than sixteen years of age as does section 800.04(7). While committing such an act in front of an adult may only warrant treatment as a first-degree misdemeanor, the Legislature determined that committing the act in front of a child less than sixteen years of age constitutes a felony and deserves a harsher penalty.” Id.

Lesson for today: Listen to your mom. Listen to other people speaking in a “Mom” capacity. Usry didn’t listen to the victim’s mom. The mom told him to stop it–and had he listened–we wouldn’t be discussing this case right now. I don’t want to make light of how serious these exposures are to young people, but clearly, this conviction was just a stupid tax for not stopping the show when the mom told him to. You deserve to be convicted if you don’t stop after the poor girl’s mom tells you to. Am I being too harsh? No, I’m not. Please skip the emails accusing me of being a former prosecutor. I’ve never been a prosecutor, it only sounds that way on rare occasions of stupidity.