                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Elder, Humphreys and Huff
PUBLISHED


            Argued at Chesapeake, Virginia


            LEO RICARDO BARNES
                                                                                      OPINION BY
            v.     Record No. 0271-12-1                                          JUDGE LARRY G. ELDER
                                                                                     MARCH 5, 2013
            COMMONWEALTH OF VIRGINIA


                         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                           David F. Pugh, Judge

                           Charles E. Haden for appellant.

                           Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
                           Cuccinelli, II, Attorney General, on brief), for appellee.


                   Leo Ricardo Barnes (appellant) appeals his convictions for indecent exposure, in

            violation of Code §§ 18.2-387 and 18.2-67.5:1, and for sexual display, in violation of Code

            § 18.2-387.1. On appeal, he argues that the evidence was insufficient to support his convictions

            because appellant was not “in public” or “in any public place” at the time of the alleged offenses.

            For the reasons that follow, we affirm.

                                                             I.

                   On appeal, we view the evidence in the light most favorable to the Commonwealth, as the

            party prevailing below. E.g., Rawls v. Commonwealth, 272 Va. 334, 340, 634 S.E.2d 697, 699

            (2006). Shamieka Owens testified that as an employee of the Newport News Pretrial Services

            unit, she visited the Newport News jail to interview an inmate. The interview occurred “[o]n the

            first floor in lockup,” which a person needs specific authorization in order to access. During the

            interview, Owens saw appellant, an inmate in a nearby cell. He stood at the front of his cell, “up
at the bars,” masturbating, and looking at her with “a grin on his face.” At least eight other

inmates were present in the cells behind her.

       Appellant moved to strike, arguing that the Commonwealth failed to prove that the

alleged conduct occurred in a public place. The trial court denied the motion, explaining:

               [L]et me just read . . . the statute, “Any person who while in any
               public place where others are present.” The Court defines public
               place “where others are present.” And I think that’s the intent of
               the General Assembly when they give that public, where others are
               present, not people just happenstancedly just walking in and out of
               a building, but where other people are present. So if that’s not
               true, then any person, any inmate, in any jail can take out his penis
               and show it because the argument would be that it’s not in public
               but this was, in fact, a public area. It was open to the other
               inmates. It was open to Ms. Owens who was there doing a public
               duty, a job that required her to talk to others.

       After appellant testified, he again argued the alleged offenses did not occur in a public

place, because the jail was essentially his home. The trial court found appellant guilty,

sentencing him to five years’ incarceration for indecent exposure and twelve months for sexual

display.

                                                  II.

                                             ANALYSIS

       Appellant appeals both convictions, arguing that the evidence was insufficient to support

them because he was not “in public” or “in any public place” as defined by the statutes. The

Commonwealth responds that the first floor of the jail was a public area. 1



       1
          The Commonwealth additionally contends that appellant failed to adequately preserve
his argument as to his indecent exposure conviction for appeal. Under Rule 5A:18, “[n]o ruling
of the trial court . . . will be considered as a basis for reversal unless an objection was stated with
reasonable certainty at the time of the ruling.” The purpose of this rule is to ensure “‘that
objections be promptly brought to the attention of the trial court with sufficient specificity that
the alleged error can be dealt with and timely addressed and corrected when necessary.’”
Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997) (quoting Brown


                                                 -2-
       We review the trial court’s interpretation of the statute de novo. See Harris v.

Commonwealth, 274 Va. 409, 413, 650 S.E.2d 89, 91 (2007). “The primary objective of

statutory construction is to ascertain and give effect to legislative intent.” Commonwealth v.

Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998). Thus, we construe a statute “with

reference to its subject matter, the object sought to be attained, and the legislative purpose in

enacting it; the provisions should receive a construction that will render it harmonious with that

purpose rather than one which will defeat it.” Esteban v. Commonwealth, 266 Va. 605, 609, 587

S.E.2d 523, 526 (2003).

        “It is a cardinal principle of law that penal statutes are to be construed strictly against the

[Commonwealth]” and “cannot be extended by implication, or be made to include cases which

are not within the letter and spirit of the statute.” Wade v. Commonwealth, 202 Va. 117, 122,

116 S.E.2d 99, 103 (1960). However, “we will not apply ‘an unreasonably restrictive

interpretation of the statute’ that would subvert the legislative intent expressed therein.”

Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d 139, 144 (2002) (quoting Ansell v.

Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979)).

       Code § 18.2-387 provides it is illegal for a “person [to] intentionally make[] an obscene

display or exposure of his person, or the private parts thereof, in any public place, or in any

place where others are present.” (Emphasis added). Code § 18.2-387.1 criminalizes the act of

“[a]ny person who, while in any public place where others are present, intending that he be seen



v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989)). Furthermore, the rule allows
“correction of an error if possible during the trial, thereby avoiding the necessity of mistrials and
reversals.” Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232 (1986). The
appellant clearly argued that the location did not constitute a “public place,” and the trial court
rejected that contention. Therefore, appellant sufficiently preserved this issue for appeal as to
both of his convictions.



                                                 -3-
by others, intentionally and obscenely . . . engages in actual or explicitly simulated acts of

masturbation.” (Emphasis added).

       Neither code section nor the chapter provides a definition for the term “public place.”

However, other jurisdictions have addressed the issue. 2 In doing so, courts have focused on an

act’s “open and notorious” nature or the reasonable foreseeability of public witnesses. See, e.g.,

United States v. Carr, 28 M.J. 661, 665 (N-M C.M.R 1989) (holding that a sexual act is “open

and notorious” if it occurs “in such a place and under such circumstances that it is reasonably

likely to be seen by others”); Michigan v. Neal, 702 N.W.2d 696 (Mich. Ct. App. 2005)

(affirming conviction where a guest in defendant’s home witnessed indecent exposure because it

occurred where she “would have reasonably been expected to observe it, and she might

reasonably have been expected to have been offended by what was seen”); New York v.

McNamara, 585 N.E.2d 788, 793 (N.Y. 1991) (holding that a place is “public” for purposes of

the public lewdness statute “under circumstances indicating [the place] is visible to a member of

the passing public, and that . . . it likely would be observed by such a person”); Messina v. State,

130 A.2d 578, 579-80 (Md. 1957) (“‘The place where the offense is committed is a public one if

the exposure be such that it is likely to be seen by a number of casual observers.’” (quoting 67

C.J.S. Obscenity § 5)).




       2
         In this instance, other sections of the Virginia Code offer little clarification. See King v.
Commonwealth, 2 Va. App. 708, 710, 347 S.E.2d 530, 531 (1986) (“The Code of Virginia
constitutes a single body of law, and other sections can be looked to where the same phraseology
is employed.”). Code § 4.1-100 defines “public place,” but limits the provided definition to the
context of Title 4.1, the Alcoholic Beverage Control Act. In Crislip v. Commonwealth, 37
Va. App. 66, 554 S.E.2d 96 (2001), we interpreted the meaning of “in public” under Code
§ 18.2-388, which proscribes “in public” intoxication, but distinguished the term “in public”
from “public place” under Title 4.1. Id. at 70-71, 544 S.E.2d at 98.


                                                -4-
       Similarly, we hold that “public place,” as used in Code §§ 18.2-387 and 18.2-387.1

comprises places and circumstances where the offender does not have a reasonable expectation

of privacy, because of the foreseeability of a non-consenting public witness.

       This conclusion is harmonious with the statutes’ purpose. Code § 18.2-387 codified the

common law offense of “open and notorious lewdness.” Moses v. Commonwealth, 45 Va. App.

357, 360-61, 611 S.E.2d 607, 609 (2005). Code §§ 18.2-387 and 18.2-387.1 include language

restricting such behavior “where others are present.” The statutory history and “where others are

present” language indicate the legislature’s purpose in enacting the statutes was to protect

individuals from witnessing the offensive conduct. See, e.g., McNamara, 585 N.E.2d at 791

(noting the public lewdness statute “was aimed at protecting . . . ‘unsuspecting, unwilling,

nonconsenting, innocent, surprised, or likely-to-be offended or corrupted types of viewers’”).

       Standing by the bars at the front of his cell in first floor lockup, appellant was in open

view to staff, other inmates, and to members of the public with authorized access. Under the

circumstances, it was probable that a non-consenting witness would observe his conduct.

Therefore, appellant did not have a reasonable expectation of privacy and the facts were

sufficient to support the finding that his behavior occurred in a public place under Code

§§ 18.2-387 and 18.2-387.1.

       Our holding is in line with other jurisdictions that have considered the issue and held that

correctional facilities are “public places” for purposes of public indecency statutes due to the

possible viewing by staff or visitors.

       In Louisiana v. Narcisse, 833 So. 2d 1186, 1191-92 (La. Ct. App. 2002), the Louisiana

Court of Appeals examined whether a prison infirmary qualified as a “public place” under that

state’s obscenity statute. Noting that “[a] public place or place open to the public view does not




                                                -5-
have to be open to all members of the public,” the court defined “a public place or a place open

to the public view” as “any place where other people can observe the obscene act.” Id. at 1192.

The court concluded that the evidence of accessibility to the infirmary by visitors and staff

provided a sufficient basis for the fact finder to conclude it was a public place or a place open to

the public. Id. at 1193.

       The Michigan Court of Appeals has held that “‘the key issue in determining whether an

act of oral sexual conduct was performed in a “public place” is not so much the exact location of

the act, but whether there is the possibility that the unsuspecting public could be exposed to or

view the act.’” Michigan v. Williams, 603 N.W.2d 300, 301 (Mich. Ct. App. 1999) (quoting

Michigan v. Brown, 564 N.W.2d 919, 921 (Mich. Ct. App. 1997)), vacated in part on other

grounds, 613 N.W.2d 721 (Mich. 2000). Applying this framework, the Michigan Court of

Appeals held that the attorney interview room “was a public place to the extent that certain

members of the public with access to this area of the jail could possibly have been exposed to

defendant’s sexual act with his client.” Id. at 302.

       In Arkansas v. Black, 545 S.W.2d 617, 619 (Ark. 1977), the court held that the “drunk

tank” was a public place for purposes of the sexual indecency statute in light of the possibility of

being observed by persons on an occasional tour of the jail, frequent visitors to inmates, and the

other inmates present.

                                                 III.

       The evidence supported the finding that appellant’s conduct occurred in a public place

under Code §§ 18.2-387 and 18.2-387.1. Therefore, we affirm.



                                                                                           Affirmed.




                                                -6-
