Court: CRIMINAL PROCEDURE – Dismissal – Defendant’s act of entering an open
but occupied booth in an adult use business, open to the general public, and
exposing his penis and masturbating in front of the occupant, is a violation of
§800.03, Fla.Stat. (2004)[exposure of sexual organs]. Judgment and sentence
affirmed. State v. Cerovich, No. CRC 04-45 APANO, (
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
Appeal No. CRC 04-45 APANO
Opinion filed _________________.
Appeal from a decision of the
County Judge Sonny Im
Alyssa Folse, Esq.
Assistant State Attorney
Thomas Tripp, Esq.
Attorney for appellee
THIS MATTER is before the Court on the State’s appeal of an order entered by the trial court dismissing the charge. After reviewing the briefs and record, this Court reverses the order of dismissal.
The basic facts are as follows.1 The defendant entered an adult-use store that was open to the public. He walked, uninvited, into a booth that was occupied; closed and locked the door of the booth, exposed his penis, and began to masturbate in full view of the occupant --- who was unknown to the defendant. The other occupant in the booth turned out to be an undercover deputy, who arrested the defendant and charged him with violating §800.03 of the Florida Statutes --- exposure of sexual organs in a vulgar or indecent manner. The defendant argued in the lower court that the charge should be dismissed because the act was not in public and the element of “in a vulgar or indecent manner” could not be proved solely by the testimony of an undercover deputy. After initially denying the motion, upon rehearing, the trial court granted the defendant’s motion to dismiss the charge against him. The State is appealing that decision, arguing that the defendant’s behavior was a violation of §800.03, Fla.Stat. (2004).
The statute in question, §800.03, Fla.Stat. (2004), states in pertinent part:
Exposure of sexual organs. --- It is unlawful to expose or exhibit
one’s sexual organs in public or on the private premises of another,
or so near thereto as to be seen from such private premises, in a vulgar
provided or set apart for that purpose. Violation of this section is a
misdemeanor of the first degree … .
The standard of review in this case
is de novo.
The State claims that the defendant’s actions, if proved, establish a violation of the statute, and that it was error for the trial court to grant the defendant’s motion to dismiss. This Court agrees. Under the facts alleged, the State has made a prima facie case that the defendant violated §800.03, Fla. Stat. (2004).
The defendant’s argument that this behavior was not in public is not persuasive. As noted above, the establishment was open to the general public, and the door to the booth was open at the time the defendant entered. The fact that the defendant closed the door, essentially trapping the occupant, before engaging in the lewd and vulgar act, does not absolve the defendant.
If it could be considered that this booth was somehow private, then the defendant would still be guilty of violating the statute because the booth would be considered the private premises of another. The booth was occupied by another individual before the defendant entered. That individual was unknown to the defendant, and the individual did not invite him into the booth. Restroom stalls and booths might be considered private for purposes of this statute, but they are private for the person using them at the time. Those places are not “anything goes zones” where any one may enter and do what they like regardless of who is occupying them at the time. If a complete stranger enters the area, then that area is not to be considered private as far as the stranger is concerned. What expectation of privacy can strangers have when they knowingly enter an occupied area? The defendant appears to want it both ways. On the one hand he contends the booth is private, but on the other hand he argues that it was permissible for him to enter the booth because it was open to the public. Since the booth was occupied by another, it is either the private premises of another or it is public. Either way, the defendant violated the statute.
The defendant also contends that the charges should have been dismissed because the only person witnessing the behavior was a deputy. The defendant’s analogy to that line of cases involving “lap dancers” in adult-use establishments, however, is misguided. Those cases involve a different statute and a completely different set of facts. In those situations the officers initiated or procured the conduct. In the case at bar, it was the defendant who initiated the conduct without any involvement from the undercover deputy.
The only case on
point that is cited by the defendant is State v. Twine, 03-CM-18115 (
IT IS THEREFORE ORDERED that the Order Granting Motion for Re-Hearing and Motion to Dismiss is reversed, and this case is remanded to the trial court for action
consistent with this Order and Opinion.
AND ORDERED in Chambers at
David A. Demers
Robert J. Morris, Jr.
Irene S. Sullivan
cc: State Attorney
Thomas Tripp, Esq.
1 The defendant filed a motion to dismiss pursuant to Fla.R.Crim.P. 3.190 (c) (4). The State filed a demurrer, but failed to put any particular facts at issue. Other facts have come out in the briefs, but the parties do not appear to disagree on the basic material facts.