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State v. Panek

Court of Appeals of Connecticut

July 5, 2016

STATE OF CONNECTICUT
v.
JOHN PANE

          Argued October 22, 2015

         Appeal from Superior Court, judicial district of Stamford-Norwalk, geographical area number twenty, Wenzel, J.

          Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Nichol Peco, assistant state's attorney, for the appellant (state).

          William B. Westcott, for the appellee (defendant).

          DiPentima, C. J., and Sheldon and Prescott, Js.

          OPINION

          SHELDON, J.

         This case concerns the ultimate facts that the state must plead and prove to convict a defendant of voyeurism under General Statutes § 53a-189a, Connecticut's video voyeurism statute.[1] Section 53a-189a was enacted by the legislature in 1999, and it now provides in relevant part: ‘‘(a) A person is guilty of voyeurism when, (1) with malice, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy, or (2) with intent to arouse or satisfy the sexual desire of such person or any other person, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy. . . .''

         So framed, the statute has two parallel subdivisions, each of which establishes a separate basis for proving a defendant guilty of voyeurism there under. Each subdivision sets forth the five common conduct, circumstances and mental state elements of that offense plus one additional, aggravating mental state element that distinguishes the two subdivisions from one another. The first common element, which describes the conduct a defendant must engage in to commit voyeurism under either subdivision, is (1) that he photograph, film, videotape or otherwise record the image of another person. The second, third and fourth common elements, which describe the circumstances under which the defendant must engage in the proscribed conduct in order to commit either form of that offense, are that he do so (2) without the other person's knowledge and consent, (3) while the other person is not in plain view, and (4) under circumstances where the other person has a reasonable expectation of privacy. The fifth common element, which describes the mental state with which the defendant must engage in the proscribed conduct under the statutorily prescribed circumstances in order to commit voyeurism, is that he do so (5) knowingly. Finally, the sixth essential element of voyeurism, an aggravating mental state that is different under each subsection of the statute, is (6) that the defendant commit the five common elements of voyeurism either with malice, in violation of subdivision (1) of subsection (a) of the statute, or with intent to arouse or satisfy the sexual desire of himself or of another person, in violation of subdivision (2) of subsection (a) of the statute.

         The question presented on this appeal is whether a defendant can be prosecuted for and convicted of voyeurism based upon allegations and proof that he surreptitiously recorded the image of another person while he and she were engaged in consensual sexual activity with one another in a private place. This question comes before us on the state's appeal from the dismissal of three consolidated informations charging the defendant, John Panek, with violating § 53a-189a (a) (1) in that manner against three different women. The informations were dismissed on the ground that the defendant's recording his own sexual activity with another person cannot establish the third essential element of voyeurism with respect to that person, to wit: that he recorded the other person's image when she was ‘‘not in plain view . . . .'' Interpreting the phrase ‘‘not in plain view, '' as used in the statute, to mean ‘‘not in plain view of the defendant, '' the trial court concluded that the facts alleged by the state did not tend to establish the third essential element as to any of the complainants because each was allegedly in the defendant's immediate physical presence, and thus in his plain view, when he recorded her image. (Emphasis added.)

         The state claims that the trial court erred in so interpreting the statute, and thus in dismissing the three informations, because the meaning of its ‘‘not in plain view'' element is not plain and unambiguous on the face of the statute, as the trial court ruled. It contends, to the contrary, that if the statute is properly construed in light of its legislative history, the disputed element must be understood to require only proof, as here alleged, that the complainants were ‘‘not in plain view of the public'' when the defendant recorded their images. The defendant disagrees, and so do we. We conclude that the judgment of the trial court must be affirmed.

         This case arises against the following factual and procedural background. On or about July 30, 2011, a woman with whom the defendant had recently been involved in an intimate relationship reported to officers from the Wilton Police Department that approximately three weeks earlier she had caught the defendant making a recording with his cell phone of a private sexual encounter between them in the bedroom of her New York City apartment. When she objected to his conduct in so doing, which she had not previously known of or consented to, he complied at once with her demand that he delete the recording after telling her that it was the first time he had made such a recording of them. Twelve days later, however, having decided to end her relationship with the defendant and remembering that he had a computer with a camera in it facing the bed in his home in Wilton, where he and she had previously engaged in sexual activity, she traveled to Wilton to break up with him and confront him as to whether he had other recordings of their private sexual encounters on his computer. When he admitted that he did, insisting that he had used them only for his own personal sexual gratification, she demanded that he pull them all up so he and she could delete them together. In response to her demand, the defendant pulled up a file marked with her initials, but quickly deleted it before she could see what was in it or where in his computer files it had been stored. Over her protest that he had not complied with her demand, he stated that he had not wanted to show her where the recordings were stored because he also had recordings of other women in that location, all assertedly consented to, which he did not want her to see. Armed with this information, the Wilton police secured a warrant to search the defendant's Wilton home, including all of his computer equipment and file storage devices, for similar recordings. Thereafter, although the defendant initially had told the officers who searched his residence that he had no other uncon-sented-to recordings of the complainant or others in his possession, he recontacted them to tell them the names of two other women whose images he had secretly photographed, without their knowledge and consent, when they were undressed in his presence. On the basis of the foregoing information, which was subsequently set forth in an arrest warrant affidavit, the defendant was arrested and charged, in separate informations, with one count of voyeurism as to each of the three women under § 53a-189a.[2]

         To test the legal sufficiency of the state's allegations to charge him with voyeurism, the defendant moved to dismiss the three informations, without procedural objection by the state, [3] under Practice Book § 41-8 (2).[4]In support of his motion to dismiss, the defendant argued that if the state's allegations were those set forth in his arrest warrant affidavit, as he and the state had stipulated for the purpose of the motion, then the state had failed to charge him with an offense because it had not alleged that he recorded the image of any of the complainants while she was ‘‘not in plain view.'' Contending that the perspective from which it must be determined if a complainant is ‘‘not in plain view'' at the time her image is being recorded is that of the defendant, as the alleged voyeur, the defendant argued that ‘‘[i]t defies the plain requirement of the language of sub [paragraph] (B) [of the statute] for the state to claim it can prove a complainant is not in plain view of an accused in any case where that complainant has chosen to remove her clothes and engage in sexual activity with the accused. Surely, under such circumstances one could not be any more in the plain view of another.'' (Emphasis omitted.)

         The state did not disagree with the defendant that any person who disrobes in his presence and engages in sexual activity with him puts herself in his plain view. It argued, however, that the ‘‘not in plain view'' element of voyeurism should not be evaluated from the defendant's perspective, but instead from the perspective of the camera or other device he used to record the complainant's image or, in the alternative, from the perspective of the general public.

         The first of the state's alternative proposals for interpreting the disputed element was argued as follows in its memorandum in opposition to the motion to dismiss: ‘‘What the court should be focused on is where the camera/computer/phone is placed, not where the defendant is. To the victim it makes no difference. She had no knowledge of the recording device [and] therefore she was not in plain view to it.'' The state cited no language from the statute in support of this argument. The state's second proposal for interpreting the disputed element, which it advanced for the first time at oral argument on the motion, was that the phrase ‘‘not in plain view'' should be held to mean ‘‘not in public view.'' Such an interpretation would be appropriate, the state argued, because it would afford the protection of the statute to all persons whose images are surreptitiously recorded by others, without their knowledge and consent, unless at the time such recordings are being made, they are knowingly exposing those parts or aspects of themselves that are being so recorded to public view. This part of the state's argument was also unsupported by any language from the statute.

         On April 21, 2014, the trial court issued a memorandum of decision granting the motion to dismiss. It ruled that the ‘‘not in plain view'' element of voyeurism, as set forth in § 53a-189a (a) (1) (B), plainly and unambiguously requires the state to plead and prove that when the defendant recorded the image of a complainant without her knowledge and consent, he did so while she was not in the defendant's plain view.

         In reaching this result, the court first examined the text of the statute, as required by General Statutes § 1-2z, to determine if the legislature's intent as to the meaning of the disputed element could be discerned, plainly and unambiguously, therefrom. It concluded, on the basis of that examination, that the words ‘‘not in plain view'' do indeed have a plain and unambiguous meaning as to the perspective from which it must be determined if the complainant is ‘‘not in plain view'' when the defendant records her image. That meaning, it determined, is fully consistent with the defendant's proposed interpretation, ...


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