State v. Yusuf

• Decision Date: 09 May 2022
• Docket Number: 82166-1-I
• Citation: 21 Wash.App.2d 960,512 P.3d 915
• Parties: STATE of Washington, Respondent, v. Abdulrizak Isaac YUSUF, Appellant.
• Court: Washington Court of Appeals

21 Wash.App.2d 960

512 P.3d 915

STATE of Washington, Respondent,

v.Abdulrizak Isaac YUSUF, Appellant.

No. 82166-1-I

Court of Appeals of Washington, Division 1.

FILED May 9, 2022

Ordered Published Date June 9, 2022

Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-3647, for Appellant.

Amy R. Meckling, King County Prosecutor's Office, 516 3rd Ave., Ste. W554, Seattle, WA, 98104-2390, for Respondent.

Verellen, J. ¶ 1 To convict a defendant of first degree voyeurism, RCW 9A.44.115(2)(a)(i) requires that the defendant viewed the victim "without that person's knowledge and consent."Abdulrizak Yusuf challenges his conviction for first degree voyeurism, arguing the State failed to establish his victim did not know he was viewing her.Understood within its statutory context, "without that person's knowledge and consent" required that the State prove Yusuf's victim had not knowingly consented to be viewed.Because the State established Yusuf viewed his victim without her knowledge and consent, as used in the statute, substantial evidence supports his conviction.

¶ 2 Yusuf's two other challenges are not persuasive.

¶ 3 Therefore, we affirm.

FACTS

¶ 4 H.P. and her boyfriend went to an Auburn Burger King in late November of 2019 for food and for H.P. to use the bathroom.H.P. entered the women's bathroom, went into one of the two adjacent stalls, and locked the door.No one else was in the bathroom.After beginning to use the toilet, she heard another person enter the bathroom and then saw person's feet in the adjacent stall were facing the toilet.H.P. was visible through the 14-inch gap between the floor and the bottom of the stall wall.

¶ 5Abdulrizak Yusuf's face appeared upside down under the partition wall to H.P.’s bathroom stall, surprising her.

Yusuf had bent down to look under the stall partition, putting his face beneath the partition.His face was close enough for her to touch it.Yusuf stared at her for about 10 seconds before she reacted.She told him he was in the woman's bathroom and needed to leave.Yusuf did not respond to her and instead looked "up and down [H.P.’s] body."¹H.P. attempted to move her body "[j]ust, like, inward."²Yusuf stared at H.P. before beginning to raise his head back up "very slowly."³

He left the bathroom after having looked at H.P. for about 35 seconds.

¶ 6 H.P. left the bathroom about one minute later.Yusuf was sitting in a booth.H.P. then spoke with Sapela Angie Iulio, the restaurant manager, to identify Yusuf and explain what happened.Iulio called the police to report the incident.Yusuf left, and Iulio could see him "hiding" outside the restaurant.⁴

¶ 7 Several Auburn police officers arrived about 20 minutes later.Yusuf, still outside the restaurant, told one officer he had been in the women's bathroom "to take a piss."⁵After Officer Francesca Nix told Yusuf he was being arrested for voyeurism, Yusuf claimed to have been in the women's bathroom because H.P. propositioned him and had performed oral sex on him.Officers searched Yusuf's pockets and found a dozen unopened condoms, a rolled-up belt, and his driver's license.The officers needed the license to identify Yusuf because he had been giving them false names.

¶ 8 Several days later, Officer Douglass Faini began investigating the case.He called Burger King and asked for video surveillance footage from the day of the incident.Two days later, Iulio called and said the footage was ready.There were no cameras in the restroom, but cameras monitored the rest of the restaurant.Officer Christian Adams went to Burger King for the video footage.He watched the footage Iulio provided and concluded it was the wrong video because he did not see Yusuf in it.He did not watch any other footage because he was told that video was "all they had."⁶Officer Adams left without taking any footage, and he did not file a report about his visit.

¶ 9The State charged Yusuf with one count of first degree voyeurism and one count of making a false statement to a public servant.Pretrial, Yusuf moved to suppress the evidence of the belt and condoms in his pockets.The court denied the motion.In response to a motion to disclose all material evidence, the State said it had already done so.

¶ 10 During trial, H.P. testified about the incident.Officer Adams testified about watching video footage at Burger King and deciding not to take it.After both sides rested, Yusuf moved to dismiss the charges against him, arguing the State violated his constitutional right to discovery by not preserving the footage and by not disclosing the existence of the footage Officer Adams viewed.The court denied the motion.Yusuf also requested a missing evidence jury instruction as a remedy for the alleged violation.The court declined to give the instruction.

¶ 11 The jury found Yusuf guilty of both charges.He was sentenced to 15 months incarceration with 36 months of community custody.He was also ordered to register as a sex offender.

¶ 12 Yusuf appeals.

ANALYSIS

I.Substantial Evidence of First Degree Voyeurism

¶ 13 Yusuf argues the State failed to prove he committed first degree voyeurism.Whether the State proved every element of a charged crime presents a constitutional question that we review de novo.⁷

¶ 14 When a defendant challenges the sufficiency of the evidence, we review the evidence presented at trial in a light most favorable to the State to determine "if any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt."⁸The State can prove its case using direct or circumstantial evidence, which have equal weight.⁹A challenge to the sufficiency of the evidence "admits the truth of the State's evidence and all inferences that may be reasonably drawn from them."¹⁰But "[i]nferences based on circumstantial evidence must be reasonable and ‘cannot be based on speculation.’ "¹¹Dismissal with prejudice is required when sufficient evidence did not support a conviction.¹²

¶ 15 Yusuf argues the State failed to prove he"viewed" H.P. because he did not look upon her for more than a brief period of time.¹³An alleged voyeur "views" someone when they intentionally look upon "another person for more than a brief period of time, in other than a casual or cursory manner," using their own eyes or a device.¹⁴H.P. testified Yusuf looked at her for about 35 seconds, which included running his eyes up and down her body even after she told him to leave.Yusuf presents no authority that this length of time is, as a matter of law, not "more than a brief period of time."¹⁵Considered in a light most favorable to the State, a reasonable juror could conclude Yusuf "viewed" H.P.

¶ 16RCW 9A.44.115(2)(a) defines first degree voyeurism:

(2)(a) A person commits the crime of voyeurism in the first degree if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, or films:

(i) 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.^[16]

¶ 17 Yusuf contends the State failed to prove the knowledge and consent element because H.P. "did not describe any period of time where she was viewed without her knowledge" that Yusuf was looking at her.¹⁷The State argues it need not "prove that [the viewing] was both unknowing and nonconsensual" because RCW 9A.44.115(2) allows for a conviction when a defendant views another "without knowledge or without consent."¹⁸Neither argument is persuasive because they do not adequately account for the context of the statute.

¶ 18We review issues of statutory interpretation de novo.¹⁹We interpret statutes to identify and carry out the intent of the legislature as shown by the statute's plain meaning.²⁰A statute's plain meaning is shown by its own terms and by related statutes.²¹"We assume the legislature‘means exactly what it says,’ " and, therefore, cannot add or subtract from an unambiguous statute.²²But individual words should not be interpreted in isolation.The plain meaning of two words used in sequence is sometimes more than the simplest and broadest meaning of those words when viewed individually.²³The plain and precise meaning of two words used in conjunction is part of the context recognized under the plain meaning rule.²⁴Thus, although we give criminal statutes"a literal and strict interpretation,"²⁵a court should be "reluctant to accept literal readings with ... ‘strained consequences,’ especially when they do not align with the statute's purpose and plain meaning of its text."²⁶

¶ 19The legislature enacted the voyeurism statute to protect public safety and general welfare by deterring the conduct being criminalized.²⁷The statute is unambiguous.²⁸

Thus, our interpretation of the statute's unambiguous language cannot alter its terms²⁹ or undermine its purpose by adhering to a superficial, literal reading with strained consequences.³⁰

¶ 20The State interprets the statute by changing the phrase "knowledge and consent"³¹ into "knowledge or consent."³²We presume the legislature uses "and" as a conjunction.³³

We read "and" disjunctively only when the legislature clearly intended to do so.³⁴The State's interpretation is not persuasive.³⁵Adopting the State's interpretation would let a person be convicted of first degree voyeurism even if that person proved that the alleged victim had consented to being viewed without their knowledge.Because this interpretation ignores the context, subtracts terms from an unambiguous statute, and results in strained consequences, it is unavailing.³⁶

¶ 21 Yusuf argues the conjunction in "knowledge and consent" means the State is required to prove the victim was viewed completely without her knowledge and without her consent.Thus, he asserts that the State cannot prove H.P. lacked knowledge because she was aware of...