State v. Glas, No. 71514-9

Decision Date19 September 2002
Docket Number No. 71571-8., No. 71514-9
Citation54 P.3d 147,147 Wash.2d 410
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Sean Tyler GLAS, Petitioner. State of Washington, Respondent, v. Richard Lynn Sorrells, Appellant.

Kenneth W. Sharaga, Seattle, Douglas Ricks, Everett, for Petitioner.

Norm Maleng, King County Prosecutor, Jared Kimball, Deputy, James Whisman, Deputy, Seattle, Ronald Zirkle, Yakima County Prosecutor, Kevin Eilmes, Deputy, Kenneth Ramm, Deputy, Yakima, for Respondent.

BRIDGE, J.

Sean Glas and Richard Sorrells, in separate cases, were each found guilty of voyeurism for taking pictures underneath women's skirts ("upskirt" voyeurism). Glas and Sorrells each contend that Washington's voyeurism statute, RCW 9A.44.115, does not apply to their actions because it does not criminalize upskirt photography in a public place. They both also assert that RCW 9A.44.115 is unconstitutionally overbroad and void for vagueness. We hold that RCW 9A.44.115, as written, does not render unlawful upskirt photography in public places; however we do not find the statute, taken as a whole, unconstitutional.

I

On April 26, 1999, Glas took pictures up the skirts of two women working at the Valley Mall in Union Gap, Washington. Inez Mosier was working in the ladies' department at Sears when Glas caught her attention. Glas was lurking near her and acting suspiciously. Mosier saw a flash out of the corner of her eye and turned around to discover Glas squatting or sitting on the floor a few feet behind her. She later noticed a small, silver camera in his hand. The same day, Shantel Phillips was working at a cart in the main hallway of the mall. As she helped a customer, she heard a click and saw a flash illuminate behind her, level with her knees. She turned and observed Glas retreating with a camera in his hand. Police later confiscated the film, revealing pictures of Mosier's and Phillips' undergarments.

On July 21, 2000, Sorrells attended the Bite of Seattle at Seattle Center with a video camera. Jolene Jang was standing in line to buy ice cream when she noticed Sorrells behind her. Jang thought that Sorrells had his hand on her purse so she reacted and Sorrells fled from the line. A witness later informed police that she had observed Sorrells videotaping underneath little girls' dresses. Police viewed a copy of the videotape from Sorrells' camcorder and discovered images of children and adults, including Jang. Many of the images were taken from ground level, recording up the females' skirts.

Following the bench trial, the trial court found Glas guilty of voyeurism under RCW 9A.44.115. The Court of Appeals, Division Three, affirmed the conviction, despite Glas' claims that the statute was unconstitutional. See State v. Glas, 106 Wash.App. 895, 27 P.3d 216 (2001)

. Sorrells filed a motion to dismiss his case in King County Superior Court, contending that the voyeurism statute did not apply to pictures taken in a public place. The trial court denied Sorrells' motion and found him guilty on stipulated facts. In light of Glas, Sorrells appealed directly to this court. We accepted review and consolidated the two cases.

II
A. Under RCW 9A.44.115, does a person have a reasonable expectation of privacy in a public place?

Washington's voyeurism statute provides:

A person commits the crime of voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, or films another person, without that person's knowledge and consent, while the person being viewed, photographed, or filmed is in a place where he or she would have a reasonable expectation of privacy.

RCW 9A.44.115(2) (emphasis added). The statute defines a place where a person "would have a reasonable expectation of privacy" as either "[a] place where a reasonable person would believe that he or she could disrobe in privacy, without being concerned that his or her undressing was being photographed or filmed by another;" or "[a] place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance." RCW 9A.44.115(1)(b)(i), (ii).

Both Glas and Sorrells contend that the voyeurism statute was misapplied in their respective cases because the victims were in public places and therefore did not possess a reasonable expectation of privacy. In Glas, both women were employees working in the public area of a shopping mall, while in Sorrells, the woman was standing in a concession line at the Bite of Seattle at the Seattle Center. Although Glas' and Sorrells' actions are reprehensible, we agree that the voyeurism statute, as written, does not prohibit upskirt photography in a public location.

The Court of Appeals in Glas determined that the statutory definition for a place where a person would have a reasonable expectation of privacy created two separate categories of "places." Glas, 106 Wash.App. at 902, 27 P.3d 216. The court applied two general rules of statutory construction: that different language signifies different intent and that no part of a statute should be rendered superfluous. Id. (citing State v. Jackson, 137 Wash.2d 712, 724, 976 P.2d 1229 (1999); Cazzanigi v. Gen. Elec. Credit Corp., 132 Wash.2d 433, 446, 938 P.2d 819 (1997); Dep't of Transp. v. State Employees' Ins. Bd., 97 Wash.2d 454, 458, 645 P.2d 1076 (1982)). Following these rules, the court concluded that the first subsection, RCW 9A.44.115(1)(b)(i), applied to the "traditional venue of the peeping torn," such as bathrooms, bedrooms, changing rooms and tanning booths. Id. at 902-03, 27 P.3d 216. It then concluded that the second subsection, RCW 9A.44.115(1)(b)(ii), applied not to places where one would normally disrobe, but rather to places where one would normally remain clothed. Id. at 903, 27 P.3d 216. Notably the court stated, "People preserve their bodily privacy by wearing clothes in public and undressing in private. It makes no sense to protect the privacy of undressing unless privacy while clothed is presumed." Id. A plain reading of the statute does not support such a construction.

To ascertain legislative intent, a court will first turn to the plain language of the statute. State v. Reding, 119 Wash.2d 685, 690, 835 P.2d 1019 (1992). If the statute is unambiguous, as it is here, it is not subject to judicial interpretation and its meaning is derived from its language alone. State v. Chester, 133 Wash.2d 15, 21, 940 P.2d 1374 (1997). The voyeurism statute protects an individual "while the person ... is in a place where he or she would have a reasonable expectation of privacy." RCW 9A.44.115(2) (emphasis added). Grammatically, it does not make sense to apply this statement to a part of a person's body. It is the person who is in the place, not a part of the person. The two categories of private places modify and define the place where a person may have a reasonable expectation of privacy. Thus, each subsection relates to the place where the person is located (i.e., where the person is "in"). Thus, it is the physical location of the person that is ultimately at issue, not the part of the person's body.

Although the Court of Appeals in Glas concluded that its "interpretation gives effect to a legislative intent to protect the right of people to control the exposure of their bodies to public view," the plain language of the statute does not support such a conclusion. Glas, 106 Wash.App. at 903, 27 P.3d 216. The second definition of a place where a person would have a reasonable expectation of privacy is one where a person would "reasonably expect to be safe from casual or hostile intrusion or surveillance." RCW 9A.44.115(1)(b)(ii). Considering that casual intrusions occur frequently when a person ventures out in public, it is illogical that this subsection would apply to public places. Casual surveillance frequently occurs in public. Therefore, public places could not logically constitute locations where a person could reasonably expect to be safe from casual or hostile intrusion or surveillance.

It is possible to reach a logical reading of the statute while still granting meaning to both subsections defining a "private place." The first subsection applying to "[a] place where a reasonable person would believe that he or she could disrobe in privacy, without being concerned that his or her undressing was being photographed or filmed by another" applies to standard "peeping torn" locations as the Court of Appeals suggests. This would include a person's bedroom, bathroom, a dressing room or a tanning salon. These locations are all places where a person is expected to, and frequently does, disrobe. This definition is not challenged here.

The second subsection, "[a] place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance" applies to locations where a person may not normally disrobe, but if he or she did, he or she would expect a certain level of privacy. These locations could include any room in a person's domicile other than the bedroom or bathroom, such as the kitchen, living room or laundry room; a locker room where someone may undress in front of others, but not expect to have his or her picture taken; or an enclosed office where someone may close the door to breast feed or change for a bike ride commute home. It would also apply to places where someone may not normally disrobe, but would nonetheless expect another not to intrude, either casually or hostilely. An example would include a private suite or office. A person would reasonably expect that another individual would not place a camera under his or her desk to view or film his or her genital region. Thus, this second subsection is necessary and not superfluous because it expands the locations where a person would possess a reasonable expectation of privacy beyond those of a traditional "peeping torn," but not so far as to include public...

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