Editor’s note: Content of a sexual nature.
A Juneau judge Thursday denied an appeal for a man convicted of open lewdness for touching himself inappropriately in Walmart, ruling the city’s ordinance is not unconstitutionally vague.
Thomas Collins, the defense attorney for Eugene J. Bourdon, 54, who was convicted of the misdemeanor offense by a jury in November 2011, had argued the city’s ordinance is overly broad and the word “lewd” is not defined.
Juneau Superior Court Judge Louis Menendez wrote in his 10-page ruling that the ordinance “may appear vague on its first read,” but not in its entirety since the language “apprises the ordinary person of how (the parameters by which) his or her behavior will be judged.”
Menendez explained that an element of the ordinance is that a person must know he or she is likely to be observed, and that people viewing the act must be likely to be offended.
“If viewers are not affronted or alarmed, the act was either not lewd, or the act was lewd but done in a place where such behavior was socially acceptable,” Menendez wrote. “ ... In other words, a lewd gesture may not be punishable if made at a private adult party, but the same gesture may be punishable if made in a city park full of families on a Sunday afternoon.”
The judge admits that what constitutes “lewdness” may vary depending “somewhat on evolving social norms,” but found that the trial level court did not err by not instructing the jury on the definition of lewd.
Assistant City Attorney August Petropulos had argued that undefined words in city ordinances are to be defined by common usage, which in this case would be “sexually unchaste or licentious” and “obscene, vulgar.”
Menendez agreed, saying the term is “well within the comprehension of the average juror.”
“His public masturbation is not on the fringes of common notions of lewdness — it hits the bull’s eye,” the judge wrote, noting that he agreed the ordinance applies in this case.
A jury convicted Bourdon after a one-day trial in November 2011, and he was sentenced to serve 90 days in jail, the maximum penalty for the class ‘B’ misdemeanor. He appealed the conviction the next month.
The charges stemmed from an incident in July 2011 when a Walmart employee caught Bourdon kneeling down in an aisle with his pants down, masturbating while looking at pictures on his digital camera. The employee watched as Bourdon then got up and stalked two young girls throughout the store, according to charging documents.
A responding Juneau police officer arrived on scene and was instructed by Bourdon’s probation officer at the time to check Bourdon’s items for photos of children. Bourdon was on probation from a 1997 case for four counts of second-degree sexual abuse of a minor.
Police confiscated his camera and cell phone and discovered hundreds of photographs of clothed body parts of young girls and women, as well as two videos on his cell phone showing sexually explicit activity involving a girl between 5 to 8 years old, according to an affidavit.
The district attorney originally charged Bourdon with two counts of possession of child pornography and one count of indecent exposure in the first degree, all felony charges, but all charges were dismissed in August 2011. The city filed its case against Bourdon for open lewdness shortly thereafter.
Court records indicate Bourdon has a criminal history of sexual offenses dating back to 1979, which former District Attorney Richard Svobodny, now the deputy attorney general for the Department of Law’s criminal division, detailed in a sentencing memo in 1993.
Bourdon was convicted of exposing himself to a 5-year-old girl in 1979, Svobodny wrote, and of fourth-degree criminal mischief in 1986 when he was found in the crawl space between the men’s and women’s bathrooms at the Shee Atika Hotel in Sitka.
In another 1986 case, Bourdon was convicted of attempted sexual assault when he grabbed two girls near Sitka’s Blatchley Middle School.
“Defendant lay in wait as these two young girls were walking home,” the sentencing memo read. “Fortunately both girls were able to struggle away.”
Bourdon was convicted of indecent exposure in 1992 after he followed a group of kids, ranging in ages from 9 to 11 years of age, home and started to masturbate about 15 feet away from them. Bourdon ran away when he saw the stepfather of one of the girls, Svobodny said. He was convicted again on one count of indecent exposure in 1993.
• Contact reporter Emily Russo Miller at 523-2263 or at firstname.lastname@example.org.
Editor's Note: An earlier version of this article incorrectly stated the open lewdness charge stemmed from an incident in July 2007. The incident was in July 2011. The article has been updated to reflect that change.