CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...before he immediately stepped back.
The State charged Mr. Mesen with two crimes arising out of this incident—
lewd or lascivious battery upon an elderly or disabled person, in violation of section
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825.1025(2)(a), Florida Statutes (2013), and lewd or lascivious exhibition in the
presence of an elderly or disabled person, in violation of section 825.1025(4)(a).
Notably, Mr....
...That crime is limited to cases in which the defendant intentionally
touches the victim's breasts, genitals, genital area, buttocks, or the clothing covering
those areas, in a lewd or lascivious manner; it does not encompass the converse—the
victim touching the defendant. See § 825.1025(3)(a).
" 'Lewd or lascivious exhibition in the presence of an elderly person or
disabled person' occurs when a person, in the presence of an elderly person or disabled
person," "knows or reasonably should know that the el...
...does not involve actual physical or sexual contact with the
elderly person or disabled person, including but not limited
to, sadomasochistic abuse, sexual bestiality, or the
simulation of any act involving sexual activity[.]
§ 825.1025(4)(a) (emphasis added).
Mr....
...Mesen encouraged,
forced, or enticed the victim to engage in sexual activity, which is defined as "oral, anal,
or vaginal penetration by, or union with, the sexual organ of another or the anal or
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vaginal penetration of another by any other object." § 825.1025(1)....
...3d 794 (Fla. 2d DCA 2016). A reasonable reader would understand "exhibition" by
"exposure" to require that the defendant's genitals are visually observable—an ordinary
meaning of those words that is all the more reasonable in light of their context in section
825.1025(4). Common uses of the word "expose" that do not entail visibility—e.g.,
exposure to radiation, exposure to the elements—might cast a scintilla of doubt on this
interpretation but not after considering the other language of section 825.1025 and the
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language of related statutes....
...been taken by the defendant: unzipping his fly within reach of a victim who is disabled
or elderly, so as to place his genitals within reach of her touch without making them
visible.
The State's contention that this conduct is within the meaning of "exposes"
in section 825.1025(4) lacks intuitive sense in light of the language of the statute itself.
Section 825.1025(4) contains a list of alternative acts, commission of any of which
1See expose, Oxford English Dictionary,
http://www.oed.com/viewdictionaryentry/Entry/66705 (last visited Apr....
...contact with the victim (which would necessarily have to be committed in the victim's
presence) but consistent with an interpretation of "exposes" that involves actions
intended to be observed by the victim. Id.
The State's interpretation of section
825.1025(4) is further undermined by
a reading of that statute in pari materia with section
800.04, Florida Statutes (2013).
Courts are required "to construe related statutes together so that they illuminate each
other and are harmonized." McGhee v....
...manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of
a person less than 16 years of age, or forces or entices a person under 16 years of age
to so touch the perpetrator, commits lewd or lascivious molestation." (emphasis
added)), with § 825.1025(3)(a) (" 'Lewd or lascivious molestation of an elderly person or
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disabled person' occurs when a person intentionally touches in a lewd or lascivious
manner the breasts, genitals, genit...
...children's
genitals should not be criminalized." (emphasis added)).
2"[I]t's not intentional. I believe it's a legislative oversight. It should be
there. There's absolutely no reason why it should be in 800.0[4](5)(a) and not in
[825.1025](3)(a)."
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Other contextual indicators further undermine the State's interpretation
that the word "exposes" does not require visibility. The name of the crime of which Mr.
Mesen was convicted, "lewd or lascivious exhibition in the presence of an elderly person
or disabled person," § 825.1025(4), uses a term that describes the act of making
something visible: "exhibition."3
The doctrine of noscitur a sociis (a "word is known by the company it
keeps") is relied upon "to avoid ascribing to one word a meaning so broad that it is
inconsistent with its accompanying words." Cosio v....
...A meaning of the word "exposes" that
includes merely exposure to a grasp through or under clothing cannot be employed to
describe a term—"exhibition"—that indicates the presentation of something to another's
viewing.
3Dictionary definitions of the word "exhibition" favor an interpretation of
section 825.1025(4) that requires visibility....
...is exhibited; a display, sight, spectacle").
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In addition to the exposure of one's genitals, "[l]ewd or lascivious
exhibition in the presence of an elderly person or disabled person" proscribes
masturbation. See § 825.1025(4)(a)1....
...It also proscribes "other lewd or lascivious
act[s]"—including sadomasochistic abuse, sexual bestiality, or the simulation of any act
involving sexual activity—done in an elderly or disabled person's presence but without
any "physical or sexual contact." See § 825.1025(4)(a)3....
...o mean that a
person must "alter" a certificate in a way that makes "it false or deceptive in order to
constitute a violation of the statute").4
4Use of the word "other" in the catch-all provision of the exhibition
subsection of section 825.1025 provides yet more compelling support for an
interpretation that requires visibility:
Intentionally commits any other lewd or lascivious act that
does not involve actual physical or sexual contact with the
elderly person or disabled person, including but not limited
to, sadomasochistic abuse, sexual bestiality, or the
simulation of any act involving sexual activity[.]
§ 825.1025(4)(a)3....
...The word "other" only has meaning in relation to
the preceding enumerated acts, which include exposure. Use of the word "other" to
indicate that the preceding enumerated acts are also "lewd or lascivious" would be
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Nothing in the context of section 825.1025 suggests anything other than
the ordinary understanding of "exhibition" by "exposure": making one's genitals
observable by uncovering them....
...to solve (if it can be solved at all)." See Republic of Argentina v. NML Capital, Ltd., 573
gratuitous, since the crime itself only encompasses "lewd or lascivious" exhibition and
the subsection enumerates all the ways in which a "[l]ewd or lascivious exhibition" can
"occur[.]" § 825.1025(4)(a). A reasonable reader would assume that the word "other" is
instead being used to indicate that the preceding enumerated acts, including exposure,
also "do[] not involve actual physical or sexual contact," § 825.1025(4)(a)3., since it
would be needless to specify that, like the acts previously enumerated, these other acts
must also be done in a lewd or lascivious manner....
...3d 114, 119 n.3 (Fla. 5th DCA 2013) ("[W]hatever the
consequences, we must accept the plain meaning of plain words." (quoting United
States v. Brown,
206 U.S. 240, 244 (1907))).
The plain and ordinary meaning of the word "expose" in the context of
section
825.1025(4) is the one most favorable to Mr....
...it most favorably to the accused. See §
775.021(1), Fla. Stat. (2013).
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I agree with the majority on three points that dispose of this appeal. First,
the undefined term "exposes" in section
825.1025(4)(a)(2) should be interpreted in
accord with its ordinary meaning....
...Tahitian Treasure
Island, LLC,
253 So. 3d 649, 657 (Fla. 2d DCA 2017) (explaining that undefined terms
get their everyday meanings unless the context indicates a particular, specialized
meaning). Second, the ordinary meaning of the term "exposes" as used in section
825.1025(4)(a)(2) is, unambiguously, to make visible....
...Mesen made his
genitals visible; not even the State argues that its evidence was solid enough to get it
that far. The plain meaning of the statute thus requires that we reverse the trial court's
denial of the motion for judgment of acquittal on whether the State presented a prima
facie case under section 825.1025(4)(a)(2).6
The majority's extensive analysis of other principles of statutory
construction is, to my mind, not necessary to explain our reasons for deciding the case
or to address any argument the State has made....
...1984) (quoting A.R.
6The scope of the motion for judgment of acquittal and this
appeal is limited to the question of whether the facts taken in the light most favorable to
the State were sufficient for the jury to determine if Mr. Mesen violated section
825.1025(4)(a)(2)....
...See §
924.34, Fla. Stat. (2018).
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Douglass, Inc. v. McRainey,
137 So. 157, 159 (Fla. 1931)). And the State's only
argument on appeal boils down to an assertion that we should interpret the term
"exposes" in section
825.1025(4)(a)(2) to mean "exposes to the touch," an argument
that, as the majority correctly explains, the ordinary meaning of the term as used in the
statute excludes....
CopyPublished | Supreme Court of Florida
...‘sadomasochistic abuse’ and ‘sexual bestiality’ in §
847.001, Fla. Stat., that differ
from the statutory definitions in §
827.071, Fla. Stat. As of June 2018, there is no
case law that decides which definition applies for a violation of [§
800.04(7)(a), §
800.09, or §
825.1025, as applicable], Fla....
...Stat.
This instruction was adopted in 2013 [
131 So. 3d 720] and amended in 2015
[
176 So. 3d 938] and 2018.
11.11 LEWD OR LASCIVIOUS OFFENSES COMMITTED UPON OR IN
THE PRESENCE OF AN ELDERLY PERSON OR DISABLED PERSON
§
825.1025, Fla....
...Give as applicable.
Give if jury is instructed on element #1b or element #1c.
The words “lewd” and “lascivious” mean the same thing; and mean a
wicked, lustful, unchaste, licentious, or sensual intent on the part of the person
doing an act.
If 2a or 2c is alleged, define the act charged from § 825.1025(1), Fla....
...person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
§
796.07(1)(a), Fla. Stat.
“Prostitution” is the giving or receiving of the body for sexual activity
for hire but excludes sexual activity between spouses.
§
825.1025(1), Fla....
...an 18 years of age who is enrolled
at a school.
Lesser Included Offenses
11.1411.11 LEWD OR LASCIVIOUS OFFENSES COMMITTED UPON
OR IN THE PRESENCE OF AN ELDERLY PERSON OR DISABLED
PERSON – 825.1025
CATEGORY ONE CATEGORY TWO FLA._STAT....
...However, if the sexual activity involved something other than
penile-vaginal sexual intercourse (or contact), §
800.02, Fla. Stat. should be given
as a lesser-included offense. See State v. Knighton,
235 So. 3d 312 (Fla. 2018).
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§
825.1025, Fla....
...of “sadomasochistic abuse” and “sexual
bestiality” in §
847.001, Fla. Stat., that differ from the statutory definitions in
§
827.071, Fla. Stat. As of June 2018, there is no case law that decides which
definition applies for a violation of §
825.1025, Fla....
