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State v. Panek

Supreme Court of Connecticut

January 31, 2018

STATE OF CONNECTICUT
v.
JOHN PANEK

          Argued September 19, 2017

          Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Nichol Peco, assistant state's attorney, for the appellant (state).

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

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Robinson, D'Auria and Espinosa, Js. [*]

          OPINION

          D'AURIA, J.

         The defendant, John Panek, was accused of engaging in sexual activity with a woman in his home and, while doing so, making a video recording of the encounter without the woman's knowledge or consent. He was accused of doing the same thing on at least two other occasions with two other women. In three separate informations, the state charged the defendant with violating General Statutes (Rev. to 2009) § 53a-189a (a) (1).[1] This section generally prohibits a person from, knowingly and with malice, video recording 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 . . . .'' General Statutes (Rev. to 2009) § 53a-189a (a) (1). The present appeal concerns the meaning of the element requiring that the victim be ‘‘not in plain view'' when she is recorded. General Statutes (Rev. to 2009) § 53a-189a (a) (1) (B). More specifically, we are asked to determine to whose plain view the statute refers.

         The defendant moved to dismiss the informations on the ground that the ‘‘not in plain view'' element refers to the plain view of the defendant. He asserted he could not be charged or convicted under this statute for his conduct because each of the women he was with was within his plain view at the time he recorded them. The state responded that the ‘‘not in plain view'' element of § 53a-189a (a) (1) referred instead to the perspective of the general public and that, because the defendant and the victim were inside his home at the time, they were ‘‘not in plain view'' of the public when the alleged offenses occurred.[2] The trial court concluded that the statute plainly and unambiguously referred to the plain view of the defendant and dismissed the informations. The Appellate Court affirmed the judgments of dismissal. State v. Panek, 166 Conn.App. 613, 635, 145 A.3d 924 (2016).

         Contrary to the trial court and Appellate Court, we conclude that the text of § 53a-189a (a) (1) plausibly could refer to either the plain view of the defendant or the general public, rendering the statute ambiguous. Consulting extratextual sources, we are persuaded that the ‘‘not in plain view'' element refers to the general public. We also reject the defendant's alternative ground for affirming the judgment of the Appellate Court, namely, that the ‘‘not in plain view'' element is unconstitutionally vague or overbroad. We therefore reverse the Appellate Court's judgment.

         For the purposes of this appeal, the parties have stipulated to the following facts, taken from the affidavit supporting the warrants issued for the defendant's arrest. The defendant and his girlfriend (victim) were engaged in consensual sexual relations in the bedroom of her apartment when she discovered he was secretly recording their encounter using his phone. She had not previously known about or consented to the recording and objected to it immediately. The defendant deleted the recording and claimed it was the first time he had recorded their sexual encounters.

         Suspicious that the defendant had stored other surreptitiously recorded videos on his home computer, the victim later traveled to the defendant's home to confront him and end the relationship. The defendant admitted to possessing other secret video recordings of their sexual relations on his computer, and, when the victim demanded he retrieve and delete all the video files, he quickly selected a folder on his computer labeled with her initials and deleted it without showing her its contents. The defendant told her that he could not show her where the recordings were stored on his computer because private images of other women were stored in the same vicinity. The defendant claimed the videos he possessed of other women were consensually recorded.

         After the victim reported the incident, the police executed a search warrant at the defendant's home, including his computer equipment and electronic file storage devices. Although he initially told officers he did not possess any other nonconsensually recorded videos, the defendant later admitted he had photographed two other women without their knowledge or consent while they were undressed in his immediate physical presence.

         The defendant was arrested and charged with voyeurism in violation of § 53a-189a in three separate informations, each one relating to one of the three women he recorded. The defendant moved to dismiss all charges on the ground that recording his own consensual sexual activity with another person cannot establish the second element of the statute, namely, that the recording took place when the victim was ‘‘not in plain view.'' General Statutes (Rev. to 2009) § 53a-189a (a) (1) (B). Interpreting ‘‘not in plain view'' to unambiguously mean not in plain view of the defendant, the trial court concluded on the basis of the stipulated facts that the state's evidence could not establish this element because each woman was in the defendant's immediate physical presence during the recordings and, thus, in his plain view. The court therefore dismissed all three informations.

         The state appealed from the judgments of the trial court to the Appellate Court pursuant to General Statutes § 54-96, arguing that the phrase ‘‘not in plain view'' in § 53a-189a (a) (1) (B) is ambiguous and must therefore be construed in light of its legislative history, which establishes that the statute refers to the plain view of the public. Because the women at issue were not in plain view of the public when the defendant recorded them, the state further argued that the second element of the statute would be satisfied in the present case. The Appellate Court disagreed and affirmed the trial court's dismissal of the case, concluding that the statutory language unambiguously referred to the plain view of the person making the recording, not the public. State v. Panek, supra, 166 Conn.App. 635.

         We granted the state's petition for certification to appeal to address the following question: ‘‘Did the Appellate Court properly construe the ‘not in plain view' element of . . . § 53a-189a, the video voyeurism statute, in affirming the dismissal of the charges against the defendant?'' State v. Panek, 323 Conn. 911, 149 A.3d 980 (2016). In addition to the certified question, the defendant claims that the Appellate Court's judgment may be affirmed on the alternative ground that the ‘‘not in plain view'' element of § 53a-189a (a) (1) is unconstitutionally vague and overbroad on its face and as applied to his conduct.

         I

         We turn first to the certified question concerning the meaning of the ‘‘not in plain view'' element of § 53a-189a (a) (1). Applying plenary review to this question of law; see, e.g., State v. Fowlkes, 283 Conn. 735, 738, 930 A.2d 644 (2007); we disagree with the Appellate Court's interpretation and instead conclude that ‘‘not in plain view'' refers to the plain view of the general public, not the defendant. Specifically, although the Appellate Court determined that the statute plainly and unambiguously referred to the plain view of the defendant, we conclude that the statutory language-which is hardly a model of clarity-is ambiguous about whether it refers to the plain view of the defendant, the general public, or anyone else, and, therefore, we must look beyond the language of the statute. Upon consulting extratextual sources, especially the statute's legislative history, we are persuaded that the legislature intended for the ‘‘not in plain view'' element of § 53a-189a (a) (1) to be viewed from the perspective of the public generally.

         Before turning to our analysis, we set forth the essential principles that guide our interpretation of statutes. ‘‘[O]ur fundamental objective [in statutory construction] is to ascertain and give effect to the apparent intent of the legislature . . . .'' (Internal quotation marks omitted.) Board of Education v. State Board of Education, 278 Conn. 326, 331, 898 A.2d 170 (2006). When we construe a statute, General Statutes § 1-2z directs us to ascertain its meaning ‘‘from the text of the statute itself and its relationship to other statutes.'' ‘‘If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .'' (Internal quotation marks omitted.) Rivers v. New Britain, 288 Conn. 1, 11, 950 A.2d 1247 (2008). ‘‘[O]ur case law is clear that ambiguity exists only if the statutory language at issue is susceptible to more than one plausible interpretation.'' (Internal quotation marks omitted.) Lackman v. McAnulty, 324 Conn. 277, 286, 151 A.3d 1271 (2016).

         A

         Textual Analysis

         Applying these principles, we conclude, contrary to the Appellate Court and the trial court, that an examination of the text of the statute and our consideration of related statutory provisions do not yield a single, unambiguous meaning of the ‘‘not in plain view'' element in § 53a-189a (a) (1).

         1

         We begin our search for the legislature's intended meaning by examining the statute itself. Section 53a-189a (a) provides in relevant part: ‘‘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 . . . .'' (Emphasis added.) General Statutes (Rev. to 2009) § 53a-189a (a). The statute thus generally criminalizes the malicious and non-consensual recording of another person while ‘‘such other person is not in plain view, '' and under circumstances where such person has a reasonable expectation of privacy. General Statutes (Rev. to 2009) § 53a-189a (a) (1).

         The ‘‘not in plain view'' element presupposes that ‘‘such other person'' is being viewed from a particular vantage point, but does not explicitly dictate whose vantage point must be considered. General Statutes (Rev. to 2009) § 53a-189a (a) (1). The statute itself refers to two individuals-the person recording and the person being recorded. It is doubtful that the statute refers to the plain view of the person being recorded because that would be absurd-the recorded person would always be in plain view of himself or herself-and neither party is advocating for this interpretation. The statutory language, on its face, could be interpreted to refer to the plain view of the person making the recording, as the defendant asserts. But the statute could also be read to refer to the view of the public generally, as the state argues. Also, the statute could refer to the plain view of any other person, meaning that the person being recorded must not be in the plain view of anyone else at the time of the recording to establish this element of the offense. Nothing in the statutory language expressly points to or excludes any of these latter three interpretations.

         A closer look at the meaning of ‘‘plain view'' does not resolve the ambiguity either. There is no statutory definition of ‘‘plain view'' for us to consult. When we construe undefined statutory terms, General Statutes § 1-1 (a) directs us to use the ‘‘commonly approved usage'' of the words at issue, or, if they are technical words that have ‘‘acquired a ...


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