Leo Ricardo Barnes v. Commonwealth of Virginia

Citations: 61 Va. App. 495; 737 S.E.2d 919; 2013 WL 789176; 2013 Va. App. LEXIS 65Docket: 0271121

Court: Court of Appeals of Virginia; March 5, 2013; Virginia; State Appellate Court

Original Court Document: View Document

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Leo Ricardo Barnes appealed his convictions for indecent exposure and sexual display, arguing insufficient evidence due to the claim that the alleged conduct did not occur "in public" or "in any public place." The Court of Appeals of Virginia, led by Judge Larry G. Elder, affirmed the convictions. During the trial, evidence was presented by Shamieka Owens, an employee of the Newport News Pretrial Services, who testified that while interviewing an inmate at the Newport News jail, she saw Barnes, an inmate, masturbating in view of her and at least eight other inmates. 

The trial court ruled that the jail's first floor, where the incident occurred, constituted a public area, as it was accessible to other inmates and Owens was performing a public duty. Barnes contested this designation by arguing that the jail was effectively his home, but the court disagreed, emphasizing that the presence of others in that space satisfied the statutory definition of a public place. 

Additionally, the Commonwealth pointed out that Barnes failed to preserve his argument regarding the indecent exposure charge for appeal, as required under Rule 5A:18, which mandates that objections be made with specificity during trial. The court's analysis reinforced that the evidence supported the convictions based on the established definition of public space, leading to the affirmance of both convictions and subsequent sentences of five years for indecent exposure and twelve months for sexual display.

The trial court's interpretation of the statute is reviewed de novo, with the aim of discerning legislative intent. Statutory construction involves evaluating the subject matter, the intended objectives, and the legislative purpose, ensuring that interpretations align with these aims rather than undermining them. Penal statutes are strictly construed against the Commonwealth, and cannot be extended by implication. However, this does not permit an excessively narrow interpretation that would contradict legislative intent. 

Code § 18.2-387 prohibits intentional obscene displays in public, while Code § 18.2-387.1 criminalizes acts intended to be seen in public places. The appellant challenged the classification of the location as a "public place," a contention the trial court rejected, thus preserving the issue for appeal. 

Although neither statute provides a definition for "public place," other jurisdictions have defined it based on the "open and notorious" nature of actions and the reasonable foreseeability of public witnesses. Relevant case law indicates that a place is considered public if the act is likely to be observed by casual passersby or if it occurs in circumstances where witnesses are reasonably expected. Virginia's own Code offers limited clarity on the term, with a definition under the Alcoholic Beverage Control Act that does not extend to the context of the lewdness statutes. Previous interpretations of "in public" have distinguished it from "public place," highlighting the need for context-specific understanding.

The term "public place" in Code § 18.2-387 and § 18.2-387.1 refers to locations where individuals lack a reasonable expectation of privacy due to the likelihood of non-consenting public witnesses. This interpretation aligns with the statutes' intent to safeguard individuals from unwanted exposure to lewd behavior, reflecting the common law offense of "open and notorious lewdness." The statutes explicitly restrict such conduct "where others are present," indicating a legislative aim to protect unsuspecting viewers. In the case at hand, the appellant engaged in behavior visible to staff, inmates, and authorized public visitors while at a correctional facility, making it probable for a non-consenting witness to see the act. Thus, the appellant had no reasonable expectation of privacy, and the evidence was adequate to establish that the conduct occurred in a public place as defined by the relevant statutes.

This conclusion is supported by precedent from other jurisdictions, which have recognized correctional facilities as public places for public indecency statutes due to potential visibility by staff or visitors. For instance, in Louisiana, the court determined that any place observable by others qualifies as a public place, while Michigan courts emphasized the importance of the potential for public exposure over the specific location of the act. Similarly, an Arkansas court classified a "drunk tank" as a public place based on the possibility of observation by visitors and other inmates. Consequently, the evidence substantiates the finding that the appellant's conduct occurred in a public place, leading to the affirmation of the ruling.