SHABITAN MARABLE

v.

STATE OF FLORIDA

Before: TRAWICK, WALSH, and CRUZ, JJ.

TRAWICK, J.

But at night! Fear of the guard who may suddenly flick on [*1] the light and stick his head through the grating compels me to take sordid precautions lest the rustling of the sheets draw attention to my pleasure.

Jean Genet, Our Lady of the Flowers (1942). If only Appellant here had taken such precautions!

The Appellant, Shabitan Marable, appeals a final judgment of conviction and sentence for a violation of section 800.03 Marable was observed in his bunk by Corrections Officer Latonya Touchstone ("Officer Touchstone") "with his erect penis in his hands," looking at her while he was, "stroking it in an upward and downward motion." Mr. Marable's legs were partially covered by a bed covering and his pants were pulled down to his thighs. When Officer Touchstone made her observation, she was seated at her desk centered at the front of the unit between ten to fifteen feet from Mr. Marable. The one room unit she was overseeing at the time contained between seventy and seventy-two bunks, each consisting of two-beds, spaced two to three feet apart, which housed at the time approximately sixty-four [*2] inmates. It was early morning; the lights were still dimmed, and most inmates were still in their bunks.

The State charged Mr. Marable with a violation of section 800.03.¹ At the conclusion of the State's case and again after both sides rested, the Defense moved for judgment of acquittal. The trial court denied both motions. The jury returned a unanimous verdict convicting Mr. Marable of a violation of section 800.03, after which the trial court sentenced him to 364 days in the Dade County Jail with credit for time served. This appeal followed.

The denial of a motion for judgment of acquittal is reviewed de novo; however, all evidence and inferences therefrom are viewed in a light most favorable to the State. Williams v. State, 261 So. 3d 1248, 1252 (Fla. 2019).

Section 800.03 provides, in relevant part, that:

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 or indecent manner, or to be naked in public except in any place provided or set apart for that purpose...

Appellant argues that a jail is not a place designed to be frequented by the public as required by the indecent exposure statute. In support of this argument he N 1 The single count Information charged Mr. Marable with a violation of section 800.03. The text of the Information is not entirely clear regarding whether it is based solely on Mr. Marable exposing or exhibiting his sexual organs on the private premises of another, or if it also charged, in the alternative, that he was being naked in public. As pointed out by the State, the Defense never moved to dismiss the Information. Accordingly, any challenge to the Information being alleged in the alternative was waived pursuant to Florida Rule of Criminal Procedure 3.190(c). [*3] contends that a jail does not fall within the definition of a "public place" as set forth in Florida Standard Jury Instruction (Criminal) 11.9, which defines "public place" as "any place intended or designed to be frequented or resorted to by the public." Appellant reasons that "[a] detention facility is a unique place" Clark v. State, 395 So. 2d 525, 528 (Fla. 1981), and that "prisons are institutions where public access is generally limited." Saxbe v. Washington Post Co., 417 U.S. 843 (1974). Appellant argues that because prisoners are isolated from the general public, such a facility cannot be a public place. He concludes that since a jail is not a public place, he cannot be convicted of a violation of section 800.03.

The Supreme Court of the United States has held that "it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room." Lanza v. State, 370 U.S. 139, 143 (1962). As a result, any expectation of privacy of inmates would be extremely limited. See Jackson v. State, 18 So. 3d 1016, 1030 (Fla. 2009) ("[A] prisoner's privacy interest is severely limited by the status of being a prisoner and by being in an area of confinement. . ."); State v. Smith, 641 So. 2d 849, 851 (Fla. 1994). As a jail shares none of the attributes of a private place, and there is a "severely limited" expectation of privacy in a jail, can [*4] we then infer that that all parts of a jail are public places? Or is it more reasonable to conclude that certain areas of a jail may be public while others are private?

While not a case involving a jail setting, Ward v. State, 636 So. 2d 68, 71 (Fla. 5th DCA 1994) is instructive in resolving this quandary. There the court addressed the privacy interests of a person masturbating in a public restroom stall in a park. The court found that had the defendant been masturbating in the public area of the restroom with the intent of exposing himself to others, or had he been doing so in a stall, the interior of which could be freely seen from the public areas, a reasonable expectation of privacy would not have existed.

In Gonzalez v. State, 541 So. 2d 1354 (Fla. 3rd DCA 1989), corrections officers took a prisoner to a prison bathroom to conduct a strip search. The court, citing Wolff v. McDonnell, 418 U.S. 539, 555 (1974), noted that prisoners retain "to some minimal extent," protection from unreasonable searches and seizures under the Fourth Amendment. The court found that although the search was invasive and was N 2 Section 876.11, Florida Statutes, defines public place as: All walks, alleys, streets, boulevards, avenues, lanes, roads, highways or other ways or thoroughfares dedicated to public use or owned or maintained by public authority, and all grounds and buildings owned, leased by, operated, or maintained by public authority. Emphasis added.

Section 876.11 is part of Chapter 876 titled "Criminal Anarchy, Treason and Other Crimes Against Public Order." However, while this definition isn't necessarily applicable to Chapter 800 containing section 800.03, it does provide support for the conclusion that a jail which is owned, leased by, operated, or maintained by a government entity, like the jail here, is a public place. [*5] conducted in a private place, i.e. a bathroom, the search of the prisoner for missing cell block keys was reasonable under the circumstances. Id. at 1356.

Similar reasoning to the situations presented in Ward and Gonzalez could be applied here. Perhaps had Appellant been masturbating in a jail cell or a bathroom stall in which he was alone and free from prying eyes, a persuasive argument could be made that he had some expectation of privacy during which time the cell or stall was not a public place. However, the context presented here is quite different - a large room containing many prisoners at one time.

Numerous Florida Circuit Appellate Court cases, although not binding, provide additional guidance regarding whether different areas of the jail are considered public or private.

In Dawes v. State, 11 Fla. L. Weekly Supp. 611c, (Fla. 10th Jud. Cir. Ct., April 6, 2004), Dawes was observed in the jail shower area stroking his penis while grinning at a female jail nurse. The Defense filed a motion for acquittal arguing that Dawes was not in a public place and entitled to an expectation of privacy. The Circuit Appellate Court disagreed citing State v. Smith, 641 So. 2d 849, 850 (Fla. 1994) and Lanza, 370 U.S. at 143.

In State v. Cromartie, 14 Fla. L. Weekly Supp. 430b (Fla. 17th Jud. Cir. Ct., March 8, 2007), while Cromartie was an inmate at the Broward County Jail [A] female deputy observed him completely naked and masturbating. He was looking at the deputy as he did so. When she ordered him to [*6] stop and place his hands on the window, he instead continued his actions. This occurred in a cell in the jail's infirmary which was open to view.

Id. The Circuit Appellate Court found that:

There are clearly jail cells which could not be considered public places. But this particular cell was open to the view of any authorized personnel; medical staff, cleaning crews, visitors, as well as the detention personnel themselves. Appellant had no control over who could be present at any given time, depriving him of any privacy claims. Indeed, after staring at the deputy and being told by her to stop, the Appellant was on notice that he was not in a private place, but that his actions were occurring in a public place. He then chose to continue. (emphasis added).

Id.

In Mann v. State, 25 Fla. L. Weekly Supp. 586a (Fla. 15th Jud. Cir. Ct., Aug. 3, 2017), Mann was in a dormitory area of a county jail when a female nurse who was distributing medication observed him masturbating and waiving at her. Mann argued that because public access to the jail was limited, the cell could not be considered a public place. The Court rejected Mann's position citing Cromartie and Dawes, reasoning that because Mann was in another inmate's cell, within view of other inmates and jail personnel walking freely around the dormitory area, the cell was a public place for purposes of section 800.03.

We find that the dormitory type area here containing numerous bunks in close proximity within which there were numerous inmates constituted a "public place." Appellant was within view of inmates, Officer Touchstone, and any other authorized [*7] person who might have entered the unit. As Appellant both exposed his sexual organs while pleasuring himself in public and was likewise naked, 4 he was in violation of the applicable provisions of section 800.03. The trial court appropriately denied his motions for judgment of acquittal.

AFFIRMED.5 WALSH and CRUZ, JJ. concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL N 3 None of the other inmates testified; however, section 800.03 does not require proof that a party was offended if the conduct occurred in a public place. See State v. Kees, 919 So. 2d 504 (Fla. 5th DCA 2005).

N 4 "Naked" is defined as "[U]ncovered; exposed (said of parts of the body). Webster's New World Dictionary (3rd ed. 1988), As Appellant was in a partial state of undress exposing his sexual organs, he was naked within the meaning of section 800.03.

N 5 We note that section 800.09(2)(a), Florida Statutes (2019) provides that:

A person who is detained in a facility may not:
1. Intentionally masturbate;
2. Intentionally expose the genitals in a lewd or lascivious manner; or
3. Intentionally commit any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity, in the presence of a person he or she knows or reasonably should know is an employee.

In previous versions of this statute, only employees of state and private correctional facilities were protected. This section was amended in 2019 and now applies to county detention facilities as well. If the latter version of section 800.09 had been in effect at the time of Mr. Marable's transgression, it would have more than adequately addressed the issue presented here.