Thomas v. United States, 101217 DCCA, 15-CM-1380

Docket Nº:15-CM-1380
Opinion Judge:Washington, Senior Judge
Party Name:David Thomas, Appellant, v. United States, Appellee.
Attorney:Fletcher P. Thompson for appellant. Valinda Jones, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, and Marisa S. West, Assistant United States Attorneys, were on the brief, for app...
Judge Panel:Before McLEESE, Associate Judge, and WASHING ION and FARRELL, Senior Judges.
Case Date:October 12, 2017
Court:Court of Appeals of Columbia District
 
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David Thomas, Appellant,

v.

United States, Appellee.

No. 15-CM-1380

Court of Appeals of Columbia District

October 12, 2017

Argued April 20, 2017

Appeal from the Superior Court of the District of Columbia (DVM-150I-I5) (Hon. Jose M. Lopez, Motions Judge) (Hon. Robert E. Morin, Trial Judge.

Fletcher P. Thompson for appellant.

Valinda Jones, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, and Marisa S. West, Assistant United States Attorneys, were on the brief, for appellee.

Before McLEESE, Associate Judge, and WASHING ION and FARRELL, Senior Judges.

Washington, Senior Judge

David Thomas ("appellant") was found guilty of attempted voyeurism for photographing his sexual partner while she slept nude next to him and without her consent. Appellant sent the photograph to an unknown number of third parties and the photograph made its way online. The victim notified law enforcement, and a recorded phone conversation was arranged between the victim and appellant, with only the victim's consent and knowledge that the conversation was being recorded. On appeal, appellant argues that the audio recording was unlawful under Maryland law where he was located during its recording, and therefore, the trial court erred in denying his motion to suppress. We affirm.

I.

In April of 2013, appellant and the victim, J.P., met while they were both students at Howard University. The pair briefly dated and became sexually intimate on one occasion in J.P.'s bedroom. Unbeknownst to J.P., appellant photographed her exposed back and buttocks while she slept. This photograph, which was introduced into evidence, depicted J.P. lying on her left side with her back to the camera. Although J.P.'s face could not be seen, she recognized her body, comforter, pillows, and pillow cases in the photograph. She also recognized several identifying items that appellant had staged around and on her body. These included a hand-made poster board made by the victim's father, which visibly displayed the victim's name in large letters, the Greek letters identifying her sorority, and a message from her family; a purple and gold tee-shirt with a logo and motto associated with appellant's fraternity pledge class; a purple bracelet worn by appellant; and a used condom and its wrapper displayed on her thigh. The victim never consented to the photograph. J.P. testified that she had never seen anyone in her house wearing the T-shirt in the photograph that appellant was wearing that night.

J.P. first became aware of the photograph's existence roughly six months later when a mutual friend told her that the photograph had been posted in an online private chat room. Some months later, J.P. received a text message from a sorority sister that included a screenshot of the photograph. Now that she possessed a copy of the photograph, J.P. promptly filed a police report.

In December of 2014, J.P. met with Detective Wilfred Yulfo who arranged for her to call appellant to discuss the photograph. The phone conversation was made from J.P.'s cell...

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