Virginia Court of Appeals 10 August 2004

Moses v. Commonwealth - Subject: Is rubbing one's genitalia underneath pants in the view of another enough to qualify as "making an obscene display or exposure of his person?"

In this case both the majority opinion and the dissent are well written and well reasoned. The majority looks to pre-statutory common law, and reverses the convictions, concluding:

Our review of the common law of indecent exposure and the language of the statute itself compels the conclusion that the words "display" and "exposure" as used in [this statute] are synonymous and that the statute applies only when the body part in question was clearly visible without clothing or was exposed without clothing and likely to be seen."

The dissent comes back with a common law argument of its own with a definition of lewdness that would include the activity in question. As well, the dissent strikes back with a stronger argument that the words of a statute should be interpreted as to not render a portion superfluous. Therefore, display and exposure should have different meanings. The dissent then goes on to point out that "display" as construed under the use of a firearm in a felony statutes does not require the gun to have been seen. This is offered as the definition of display which should be followed and allow the convictions to stand.

[comment] IMHO, while both are interesting reads, the majority has the better of the argument. As to the common law, its argument seemed to find more of its substance in Virginia case law against which the dissent railed and offered argument which stretched further to make its points. However, the dissent's second point is thought provoking. Nevertheless, assuming this argument is correct - that the two words are in subjunctive and should have different meanings - the meaning of "display" isn't required to come out the way the dissent wants it. The statute seems pretty clearly to be an anti-nudity statute and the way I would read it "exposure" would be the lady nude sunbathing in her backyard where the neighborhood kids could see (or not) while "display" would be the same lady sunbathing nude but turning her chair so that the guy next door has no choice but to see her when he pulls his car into his garage. Of course, there are undoubtedly a plethora of possible definitions - this is just the one which seems most likely to me from a plain reading of the statute. In the end I don't think the dissent got close enough to even require the invocation of the rule of lenity; still it was a good argument.

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Widdifield v. Commonwealth (en banc)- Subject: Can a judge sentence a Defendant to two years, suspending all of it on condition that the Defendant serve 12 months in jail and later sentence the Defendant to serve two years upon a show cause?

The Court decides that what follows did not preserve the appeal:

Court - The court revokes the two years that were suspended.
. . .
Attorney: Does she receive credit for the 12 months she pulled as well?

Court - No, because I gave her a two year sentence suspended on the condition that she serve 12 months and she served that and there's still two years left.
. . .
Attorney: I understand.

Court - You can check it.

Attorney: I'm not sure that's how it works, but . . .

Court - All right, go ahead.

Attorney: Thank you.

[comment] Unfortunately for the Defendant, I think the decision tracks with the controlling standard in Virginia's law. Judge Benton keeps trying to get the Court to maybe consider that the "ends of justice" exception could be invoked merely because an unjust thing might have happened in a trial but the court, as a whole, won't go there

As to this sort of procedure in a trial court - I think that technically it's wrong. It's hard to justify someone serving three years of a two year sentence. Still, I understand when this is usually done. At least in the courts wherein I practice this usually occurs when the judge is trying to give the Defendant a break. The guidelines come in for 2-3 years and the judge, either through his own sense of proportion or through something offered by the Defense, feels that it's overpunitive. So, the judge suspends an amount of jail time and requires the Defendant to spend a year in jail with the objective of keeping him from a penitentiary and allowing him potential access to programs like work release which the jail might offer. It's meant to be something which benefits the Defendant so it's hard to get upset at the judge even though it is wrong.