State v. McQueen

• Decision Date: 18 November 2020
• Docket Number: A168469
• Citation: 478 P.3d 581,307 Or.App. 540
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Steven X. MCQUEEN, aka Steven Zavier McQueen, Defendant-Appellant.
• Court: Oregon Court of Appeals

307 Or.App. 540

478 P.3d 581

STATE of Oregon, Plaintiff-Respondent,

v.Steven X. MCQUEEN, aka Steven Zavier McQueen, Defendant-Appellant.

A168469

Court of Appeals of Oregon.

Argued and submitted January 30, 2020.

November 18, 2020

Kali Montague, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

TOOKEY, J.

Defendant appeals a judgment of conviction for one count of second-degree invasion of personal privacy, ORS 163.700. On appeal, defendant assigns error to the trial court's denial of his motion for a judgment of acquittal with respect to that count. We agree with defendant that the trial court erred. Consequently, we reverse.

The relevant facts are few and undisputed. Defendant and M had a sexual relationship. One day, M went to defendant's home and had sex with him. Defendant surreptitiously filmed M and himself having intercourse. M did not know defendant was filming them, and she did not consent to being recorded engaged in that sexual encounter.

Subsequently, M discovered the videotape that defendant had made and reported the incident to police.

Defendant was charged with one count of second-degree invasion of personal privacy, ORS 163.700. That statute provides, in relevant part:

"(1) * * * [A] person commits the crime of invasion of personal privacy in the second degree if:

"* * * * *

"(b)(A) The person knowingly makes or records a photograph, motion picture, videotape or other visual recording of another person's intimate area without the consent of the other person; and

"(B) The person being recorded has a reasonable expectation of privacy concerning the intimate area."

"[I]ntimate area" means "nudity, or undergarments that are being worn by a person and are covered by clothing." ORS 163.700(2)(a). "Reasonable expectation of privacy concerning the intimate area" means "that the person intended to protect the intimate area from being seen and has not exposed the intimate area to public view." ORS 163.700 (2)(f).¹

During defendant's trial, at the end of the state's case-in-chief, defendant moved for a judgment of acquittal. Defendant argued that the state failed to prove that M had a "reasonable expectation of privacy concerning [her] intimate area." In defendant's view, the state failed to prove that element of the offense, because evidence did not reflect that M "intended to keep any part of her body from being seen by [defendant]" and, therefore, "no rational finder of fact could conclude that that * * * element of this offense[ ] has been satisfied."

The trial court denied defendant's motion, concluding that the phrase "the person intended to protect the intimate area from being seen" means that the person intended to protect the intimate area from "being seen by the public."

On appeal, defendant contends that the trial court erred in denying his motion for a judgment of acquittal. Defendant contends that, because M consented "to having sexual intercourse with defendant and did not evince a desire to protect her intimate area from being seen by defendant," he did not "commit second-degree invasion of personal privacy as charged in this case." Defendant posits that the "legislative history and the context of the invasion of privacy statutes show that the legislature intended [ ORS 163.700(1)(b) ] to cover so-called ‘up-skirting’ and ‘down-blousing’—acts of surreptitiously recording or taking pictures up women's skirts or down their blouses in public areas."

Defendant maintains that ORS 163.700(1)(b) "was not intended to cover surreptitiously recording intimate encounters in private spaces" and that "that conduct is captured by other statutory provisions." Defendant acknowledges that his conduct was "likely criminal" under ORS 163.701, the statute setting forth the crime of first-degree invasion of personal privacy but notes that "the state did not charge him under that statute."²

The state, for its part, argues that "statutory text and context, legislative history, and maxims of construction show that a person who intends to keep the general public from seeing her intimate areas does intend to keep those areas ‘from being seen’ " within the meaning of ORS 163.700(2)(f), "even if she simultaneously intends for a romantic partner to see them," and, accordingly, the trial court correctly denied the motion for acquittal.

Where, as here, " ‘the dispute on review of a ruling on a motion for a judgment of acquittal centers on the meaning of the statute defining the offense, the issue is one of statutory construction’ " that "we review for legal error." State v. Velasquez , 286 Or. App. 400, 404, 400 P.3d 1018 (2017) (quoting State v. Hunt , 270 Or. App. 206, 209-10, 346 P.3d 1285 (2015) ). After we "settle the legal issue," we "determine whether a rational trier of fact could have found that the essential elements of the crime had been proved beyond a reasonable doubt." State v. Bowen , 280 Or. App. 514, 516, 380 P.3d 1054 (2016) (internal quotation marks omitted); see also Hunt , 270 Or. App. at 209, 346 P.3d 1285 ("We generally review the denial of a motion for a judgment of acquittal by examining the evidence in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential element of the crime beyond a reasonable doubt." (Internal quotation marks omitted.)).

Given the parties’ arguments and the trial court's ruling, the first issue before us is the proper construction of the statutory phrase "intended to protect the intimate area from being seen" in ORS 163.700(2)(f).³ In interpreting statutes, "we seek to determine the legislature's intention, by reviewing the statutory text and context, and, if the court concludes that it appears useful to the analysis, the legislative history." TriMet v. Amalgamated Transit Union Local 757 , 362 Or. 484, 493, 412 P.3d 162 (2018). "In conducting that examination, we keep in mind what the legislature has told us about how it wants us to read the words it has written: ‘In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted.’ " Tarr v. Multnomah County , 306 Or. App. 26, 33, 473 P.3d 603 (2020) (quoting ORS 174.010 ; brackets omitted).

Generally, "the text of the statutory provision itself is the starting point for interpretation and is the best evidence of the legislature's intent." PGE v. Bureau of Labor and Industries , 317 Or. 606, 610, 859 P.2d 1143 (1993). Unless a word or phrase has a specialized meaning, we typically give "words of common usage" their "plain, natural, and ordinary meaning." Id. at 611, 859 P.2d 1143. "The ordinary meaning of a word is presumed to be what is reflected in a dictionary." State v. Shifflett , 285 Or. App. 654, 661, 398 P.3d 383 (2017).

The word "seen" means "perceived or verified by sight." Webster's Third New Int'l. Dictionary 2056 (unabridged ed. 2002). It is also the past participle of the verb "to see," which means, as relevant here, "to perceive by the eye : apprehend through sight." Id. at 2054; see State v. Oliver, 221 Or. App. 233, 237, 189 P.3d 1240, rev. den. , 345 Or. 318, 195 P.3d 65 (2008) (relevant dictionary definition is the one that "seems most relevant to the use of the word in the statute"). We thus understand a person to have a "reasonable expectation of privacy concerning the intimate area," as that phrase is used in ORS 163.700(1)(b)(B), only if the person "intend[ed] to protect the intimate area" from being "perceive[d] by the eye" or "apprehend[ed] through sight." And, conversely, if a person intentionally exposes an intimate area to another person, allowing the "intimate area" to be "perceive[d] by the eye" or "apprehend[ed] through sight," the person exposing the intimate area does not have "a reasonable expectation of privacy concerning the intimate area," as that phrase is used in ORS 163.700(1)(b)(B), at least as to that person.

As noted above, the state argues that a person "who intends to keep the general public from seeing her intimate areas does intend to keep those areas ‘from being seen’ " within the meaning of ORS 163.700(2)(f), "even if she simultaneously intends for a romantic partner to see them." That argument is untenable given the text of ORS 163.700(2)(f). Accepting it would require us to, in effect, append the words "by the general public" to the end of the phrase "intended to protect the intimate area from being seen" in ORS 163.700 (2)(f), so that the text would, in effect, read "intended to protect the intimate area from being seen by the general public." We are prohibited from doing so. State v. Patton , 237 Or. App. 46, 50-51, 238 P.3d 439 (2010), rev. den. , 350 Or. 131, 250 P.3d 923 (2011) ("We are prohibited, by statutory command and by constitutional principle, from adding words to a statute that the legislature has omitted.").

We next turn to context—specifically, a prior version of ORS 163.700 and the state of the law in Oregon prior to creation of the crime of second-degree invasion of personal privacy—as well as legislative history. Pete's Mountain Homeowners v. Ore. Water Resources , 236 Or. App. 507, 520, 238 P.3d 395 (2010) ("Consideration of prior versions of a statute certainly is appropriate as part of a statute's context."); Mastriano v. Board of Parole , 342 Or. 684, 693, 159 P.3d 1151 (2007) ("[W]e generally presume that the legislature enacts statutes in light of existing judicial decisions that have a bearing on those statutes.")...