Does an indecent exposure fee require anyone to see genitals?
That question needs to be answered by an Oakland County judge hearing the case of a home inspector who is jailed after allegedly masturbating while working with a tickle me Elmo doll of a toddler.
Kevin Wayne VanLuven, 59, of Clarkston, is charged with aggravated indecent exposure, a crime and malicious destruction of property under $ 200 in the alleged March 12 incident in Oxford. VanLuven was reportedly conducting a home inspection when a nanny camera recorded him allegedly enjoying the toy and then used an app to alert homeowners who weren’t there.
Kevin VanLuven (Oakland County Sheriff’s Office)
A recording of the incident that the homeowners provided to law enforcement agencies shows VanLuven holding the Elmo doll below his waist while his back to the camera faces an open closet.
The video, shown Monday morning during a preliminary exam in front of 52-3 District Judge Nancy Carniak, does not show VanLuven’s genitals, according to defense attorney Jeff Quas, and therefore does not support the prosecution.
“There is no exposure that we know can actually be seen in relation to what was presented at the time,” Quas told the court.
However, Assistant Prosecutor Kanika Ferency argues that there is a legal priority to support the prosecution, citing a 1998 case, People v. Vronko, which involved indecent exposure where unclothed genitals were not seen. Carniak is giving both attorneys time to review additional case law to back up their arguments and setting the next court date for May 19, when she is expected to determine if there is enough evidence to move the case forward.
This picture from the nursery of the house shows Kevin VanLuven with the Elmo doll.
While defending VanLuven, Quas also noted that he was not properly mirandized when questioning MPs who were called to the House after the alleged incident was reported. Deputy Patrick Yens, a street patrol officer for the Oakland County’s Sheriff’s Office, testified on preliminary investigation that VanLuven initially denied knowing why law enforcement officials were there, but later admitted to masturbating with the toy.
VanLuven then apologized and “said he was ashamed,” Yens testified.
Fees were approved a few weeks later.
Quas said VanLuven faced three MPs on the ground, failed to read his rights and didn’t feel free without answering their questions. As a result, VanLuven’s oral and written statements to law enforcement agencies should not be admitted as evidence, Quas said.
Also on Monday, the homeowner testified, telling the court that she felt “completely hurt” by VanLuven’s alleged actions and “generally disgusting and uncomfortable that this behavior could happen in our child’s room”. The family has since moved out of the state.
Increased indecent exposure results in a penalty of up to two years in prison and a fine of $ 2,000. The property crime carries a penalty of up to 93 days in prison and a fine of $ 500.
VanLuven is being held in Oakland County Jail and unable to book 10 percent of a $ 2,500 or $ 250 bond. Quas said VanLuven had no access to his funds while in custody and had not found anyone to help him.