Gary v. State, A16A0666

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtBranch, Judge.
Citation338 Ga.App. 403,790 S.E.2d 150
PartiesGary v. The State.
Docket NumberA16A0666
Decision Date15 July 2016

338 Ga.App. 403
790 S.E.2d 150

The State.


Court of Appeals of Georgia.

July 15, 2016
Reconsideration Denied July 28, 2016

790 S.E.2d 151

Michael Anthony Rivera, for Appellant.

Daniel Patrick Bibler, George Herbert Hartwig III, Thomas Clifton Woody II, for Appellee.

Branch, Judge.

338 Ga.App. 403

Following a bench trial at which the parties stipulated to the relevant facts, Brandon Lee Gary was convicted of a single count of criminal invasion of privacy, in violation of OCGA § 16–11–62 (2). Gary now appeals from the denial of his motion for a new trial, arguing that the conduct resulting in his conviction does not constitute a violation of the statute under which he was charged. Gary therefore contends that the trial court erred in denying his motion to quash the indictment and in finding that the evidence was sufficient to sustain his conviction. Gary further asserts that although he was not charged with violating OCGA § 16–11–62 (7), the trial court improperly considered the language of that subsection when finding that the evidence supported Gary's conviction. For reasons explained more fully below, we find that the indictment failed to charge, and the evidence failed to show, that Gary engaged in conduct which constituted a violation of OCGA § 16–11–62 (2). We are therefore required to reverse Gary's conviction.

338 Ga.App. 404

In this case, the evidence is uncontroverted, the parties agree as to all relevant facts, and no question exists regarding the credibility of witnesses. Thus, because the appeal presents only a question of law, we review both the appellate record and the trial court's order de novo. See Burdett v. State , 285 Ga.App. 571, 571, 646 S.E.2d 748 (2007) ; Furcal–Peguero v. State , 255 Ga.App. 729, 730, 566 S.E.2d 320 (2002).

The undisputed facts show that while employed at a Houston County Publix store, Gary aimed his cell-phone camera underneath the skirt of the victim and recorded video. Film from the store's security cameras showed that Gary aimed his camera underneath the victim's skirt at least four times as the victim walked and shopped in the aisles of the Publix. When questioned by police, Gary admitted to using his cell phone to take video recordings underneath the victim's skirt as she walked in two separate areas of the store.

A grand jury indicted Gary on a single count of “Unlawful Eavesdropping and Surveillance,” with the indictment alleging that Gary's admitted conduct “did invade the privacy of the victim.” Although the indictment did not identify the specific statute Gary allegedly violated, the State has always maintained that the indictment charged Gary with violating OCGA § 16–11–62 (2). That statute, which is part of Georgia's Invasion of Privacy Act (OCGA § 16–11–60, et seq. ), makes it illegal for “[a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view.” Prior to trial, Gary moved to quash the indictment, arguing that because Gary filmed the victim as she walked and shopped in the aisles of a public store, the victim's activities were not occurring in a private place and therefore his conduct did not violate the statute. The trial court rejected that argument and denied the motion to quash, finding that the area of the victim's body underneath her skirt constituted a “private place” within the meaning of OCGA § 16–11–62 (2).

790 S.E.2d 152

The case then proceeded to a bench trial, at which the State presented both the facts stipulated to by the parties and video from the store's security cameras, which showed Gary engaging in the conduct at issue. The trial court denied Gary's motion for a directed verdict, and in doing so, indicated that the court was reading OCGA § 16–11–62 (2) in conjunction with OCGA § 16–11–62 (7)1 to find that

338 Ga.App. 405

Gary had committed a criminal invasion of privacy. After referencing subsection (7), the trial court concluded that “there's no more blatant invasion of privacy than to do what [Gary] did,” found Gary guilty of the charged offense, and entered a judgment of conviction.

Following his conviction, Gary filed a motion for a new trial, again challenging the denial of his motion to quash the indictment and arguing that the evidence failed to show that he had engaged in any conduct which violated OCGA § 16–11–62 (2). The trial court denied that motion, and this appeal followed.

1. Each of Gary's first four enumerations of error turns on whether OCGA § 16–11–62 (2) criminalizes the conduct at issue. With respect to this question, both the State's argument and the trial court's holding focused on two propositions: (i) that Gary's conduct was patently offensive and (ii) that a woman walking and shopping in a public place has a reasonable expectation of privacy in the area of her body concealed by her clothing. We do not disagree with either of these propositions. Nor do we doubt that a woman whose body is surreptitiously photographed beneath her clothing has suffered an invasion of privacy of some kind. The question before this Court, however, is not whether the defendant's conduct was offensive; it is not whether a person walking in a public place has a reasonable expectation of privacy as to certain areas of her body; and it is not whether the victim's privacy was violated. Rather, the only issue presented by this appeal is whether the defendant's conduct constitutes a criminal invasion of privacy, in violation of OCGA § 16–11–62 (2).

The answer to this question necessarily must begin with the language of OCGA § 16–11–62 (2) itself. See Chan v. Ellis , 296 Ga. 838, 839, 770 S.E.2d 851 (2015) (“[a] statute draws its meaning, of course, from its text”). And in determining the scope of conduct covered by OCGA § 16–11–62 (2), we presume that “the General Assembly meant what it said and said what it meant.” Deal v. Coleman , 294 Ga. 170, 172, 751 S.E.2d 337 (2013). To that end, we afford the statutory text “its plain and ordinary meaning,” and we read that text in the “most natural and reasonable way, as an ordinary speaker of the English language would.” Id. at 172–173, 751 S.E.2d 337. See also OCGA § 1–3–1 (b) (“[i]n all interpretations of statutes, the ordinary signification shall be applied to all words”). Moreover, this Court is required to read a particular statute as a whole, considering specific words and phrases not in isolation, but in relation to each other. Warren v. State , 294 Ga. 589, 590, 755 S.E.2d 171 (2014). Additionally, we must construe criminal statutes “strictly against the State ... according to the natural and obvious import of their language,” taking care not to extend the application of the law by

338 Ga.App. 406

“subtle and forced interpretations.” Perkins v. State , 277 Ga. 323, 325–326, 588 S.E.2d 719 (2003) (citation and punctuation omitted). See also Maxwell v. State , 282 Ga. 22, 23, 644 S.E.2d 822 (2007) (“[a] criminal statute must be construed strictly against criminal liability and if it is susceptible to more than one reasonable interpretation, the interpretation most favorable to the [accused] must be adopted”) (punctuation and footnote omitted).

As noted above, the statutory provision at issue makes it illegal “to observe, photograph, or record the activities of another which occur in any private place and out of public view.” The dispute in this case centers on how we should read the term “private place.” Specifically, the question is whether, reading OCGA § 16–11–62 as a whole, we may logically read “private place” as including a particular region of a person's body. At the time of Gary's alleged crime, the Invasion

790 S.E.2d 153

of Privacy Act defined “private place” as “a place where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance.” OCGA § 9–11–60 (3) (2011) (emphasis supplied).2 Given the statute's definition of “private place,” the meaning of that term depends first and foremost on the meaning of “place.”

When looking for the generally understood or common meaning of a particular word, courts most often look to dictionary definitions. See, e. g., Abdel–Samed v. Dailey , 294 Ga. 758, 763, 755 S.E.2d 805 (2014) ; Warren , 294 Ga. at 590–591, 755 S.E.2d 171. The Oxford English Dictionary defines “place” as including a “[r]oom, available space ... A space that can be occupied. A particular part or region of space; a physical locality, a locale; a spot, a location.” Compact Oxford English Dictionary , 937 (2d Ed. 1991). Webster's Dictionary likewise defines “place” as including: “Space; room ... [;] A particular area or locality; region[;] the part of space occupied by a person or thing ....” Webster's New World Dictionary , 1086–1087 (2d College Ed.) (1972). Both of these dictionaries also include a less-common definition of place relied on by the dissent—i.e., that “place” can be understood to mean “a particular part of a body or surface.”

Given these arguably conflicting definitions...

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    • United States Court of Appeals (Georgia)
    • 15 Julio 2016
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    ...their own for the clear, unambiguous language of the statute, so as to change the meaning." (punctuation omitted)).20 See Gary v. State, 338 Ga. App. 403, 409 (2), 790 S.E.2d 150 (2016) ("The remedy for this problem ... lies with the General Assembly, not with this Court."); In re Whittle, ......
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    ...that the discovery or inspection be denied, restricted, or deferred or make such other order as is appropriate.").31 See Gary v. State , 338 Ga.App. 403, 409 (2), 790 S.E.2d 150 (2016) ("The remedy for this problem ... lies with the General Assembly, not this Court."); Ariemma v. Perlow , 2......
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