As Corrected December 10, 2014.
FROM THE COURT OF APPEALS OF VIRGINIA.
Jonathan Shapiro; David B. Hargett (Nina J. Ginsberg; DiMuroGinsberg; Greenspun Shapiro; Hargett Law, on briefs), for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
JUSTICE McCLANAHAN, concurring in part and dissenting in part.
[288 Va. 341] PRESENT: All the Justices
DONALD W. LEMONS,
In this appeal, we consider whether the term " expose," as used in Code § 18.2-370, includes tactile contact or is limited to situations where " sexual or genital parts" are " exposed" to sight. We also consider whether the evidence is sufficient to prove beyond a reasonable doubt that Samir Allen Farhoumand (" Farhoumand" ) exposed his genitalia in violation of Code § 18.2-370(A)(1).
I. Proceedings Below
In January 2012, S.F., a minor child, told his family he had been sexually abused over the course of several years by his older cousin, Samir Farhoumand. On May 21, 2012, Farhoumand was indicted in the Circuit Court of Fairfax County (" trial court" ) on four counts of " expos[ing] his sexual or genital parts" to a child under fifteen years of
age in violation of Code § 18.2-370(A)(1). The indictments covered a period of two years, divided into four consecutive time periods, with a single act of exposure charged in each indictment.
A trial commenced on August 27, 2012, before the Honorable Randy I. Bellows, Circuit Judge for Fairfax County, without a jury. At the close of the Commonwealth's evidence, the defense moved to strike all four indictments. The trial court dismissed the first indictment, but found there was sufficient evidence to support the remaining three indictments, and denied the motion to strike as to those counts.
After presenting its evidence, the defense moved to strike the remaining three indictments. The trial court denied the second motion to strike, and found Farhoumand guilty of the remaining three counts of " expos[ing] his . . . sexual or genital parts" to a minor child in violation of Code § 18.2-370(A)(1). The trial court relied, in part, upon the unpublished decision of the Court of Appeals of Virginia in Mason v. Commonwealth, Record No. 0309-97-2, (May 5, 1998)(en banc), which held: " [e]xposure means not only to 'lay open to view' but also to 'lay open to feel or to touch.'"
On November 15, 2012, Farhoumand argued two motions to set aside the verdict, claiming that the trial court had applied an improper definition of the term " expose," and that the evidence failed to establish with requisite specificity whether any particular act of exposure occurred [288 Va. 342] within the time frames of the individual indictments. The trial court denied both motions. The trial court sentenced Farhoumand to concurrent terms of 10 years imprisonment with 6 years suspended on each of the three counts, with active probation for ten years from the date of the defendant's release from prison.
Farhoumand appealed his convictions to the Court of Appeals, which affirmed the trial court's judgment. In an unpublished opinion, the Court of Appeals held that there is
no compelling reason to conclude that the display of nudity must be limited to a visual display. Indeed, if exposure is defined as " make known" or " lay bare," such a definition encompasses a tactile exposure as well as visual.
. . . .
We find the reasoning in Mason persuasive, in that " expose" means not only to lay bare to view, but to feel or touch. . . . We conclude that because appellant " made known" his bare penis to the victim's touch, he physically and tactilely exposed his penis to the victim.
Farhoumand v. Commonwealth, Record No. 2087-12-4, (Dec. 3, 2013).
Farhoumand appealed the judgment of the Court of Appeals to this Court, and we awarded an appeal on the following assignments of error:
1. The Court of Appeals erred in holding that " exposure" is proven where genitalia is felt but not seen and in failing to dismiss the indictments where the evidence did not prove that his genitalia was " exposed" to sight.
2. The Court of Appeals erred in holding that the evidence was sufficient to sustain the defendant's convictions whether " exposure" is proven where genitalia is seen or felt.
II. Meaning of " Expose" in Code § 18.2-370
Whether the term " expose," as used in Code § 18.2-370, is limited to visual exposure, or includes tactile exposure, is a question of statutory interpretation reviewed de novo. David v. David, 287 Va. 231, 237, 754 S.E.2d 285, 289 (2014).
[288 Va. 343] Code § 18.2-370(A)(1) provides, in relevant part, that:
Any person 18 years of age or over, who, with lascivious intent, knowingly and intentionally . . . [e]xpose[s] his or her sexual or genital parts to any child [under the age of
15 years] to whom such person is not legally married or propose[s] that any such child expose his or her sexual or genital parts to such person [is guilty of a Class 5 felony.]
A. Plain Meaning
We construe statutes to " ascertain and give effect to the intention" of the General Assembly. Rutter v. Oakwood Living Ctrs. of Va., Inc., 282 Va. 4, 9, 710 S.E.2d 460, 462 (2011) (internal quotation marks omitted). Because the General Assembly's intent " is usually self-evident from the statutory language," we apply the plain meaning of the words used in the statute. Id. (citation and internal quotation marks omitted); see also Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925-26 (2006).
Webster's Third New International Dictionary 802 (1993) defines expose as " to lay open to view" or " lay bare." It also offers the definitions to " make known" or " set forth," with the qualifying example: " [E]ach had started exposing his views." The Webster's New College Dictionary 252 (3d ed. 2008), defines " expose" as " to lay bare or uncover." Merriam-Webster's Collegiate Dictionary 441 (11th ed. 2003), defines " expose" as " caus[ing] to be visible or open to view." In The American Heritage Dictionary of the English Language 625 (5th ed. 2011), " expose" is defined simply as " to make visible." Each of these definitions supports our conclusion that, in the context of Code § 18.2-370, " expose" unambiguously means revealing one's genitalia to sight.
B. Legislative History
The legislative history of Code § 18.2-370 further supports our conclusion that the General Assembly intended exposure to be limited to instances of visual display. Subsection 2 of Code § 18.2-370(A) previously criminalized fondling. It read:
Any person eighteen years of age or over, who, with lascivious intent, shall knowingly and intentionally . . . . [i]n any manner fondle or feel, or attempt to fondle or feel, the sexual or genital [288 Va. 344] part of any child, or the breast of any such female child . . . . shall be guilty of a Class 6 felony.
Former Code § 18.2-370(A)(Cum. Supp. 1980). However, in 1981, the General Assembly repealed Subsection 2 and re-codified its provisions in two closely related statutes: Code § ...