State v. Glas, No. 19111-7-III, (Slip Op., July 5, 2001).



July 2001                  STATE v. GLAS                          1

                       Cause No. 19111-7-III



         [No. 19111-7-III. Division Three. July 5, 2001.]

             STATE OF WASHINGTON, ) No. 19111-7-III

                                  )

                      Respondent, )

                                  ) Division Three

                               v. ) Panel Six

                                  )

                 SEAN TYLER GLAS, ) PUBLISHED OPINION

                                  )

                       Appellant. ) FILED  __July 5, 2001______



  Trial Court: Superior Court, Yakima County,

No. 99-1-00763-3, F. James Gavin, J., February 4, 2000.

  Douglas F. Ricks, for appellant.

  Kevin G. Eilmes, Deputy Prosecuting Attorney, for respondent.



  SWEENEY, J. - Washington's voyeurism statute, RCW 9A.44.115,

prohibits the photographing of a person without that person's knowledge

and consent in "a place where he or she would have a reasonable

expectation of privacy." The statute then defines one such place as "[a]

place where one may reasonably expect to be safe from . . . hostile

intrusion . . . ." RCW 9A.44.115(1)(b)(ii). Sean T. Glas was caught

photographing up women's skirts at a public shopping mall in Union Gap,

Washington. The State charged him with violating the voyeurism statute.

He claims the statute is constitutionally defective because it is vague

(what is a hostile intrusion). He also argues that, looked at facially

(not as applied to him), it is overbroad. We conclude that the statute

passes constitutional muster. It is neither vague nor overbroad as

applied here or facially. We therefore affirm Mr. Glas's conviction for

violation of Washington's voyeurism statute.



                                 FACTS

  Sean T. Glas took photographs under the skirts of two women. Both were

employees at the Valley Mall in Union Gap. The State charged him with two

counts of voyeurism. The pertinent statute defines voyeurism as taking

photographs for the sexual gratification of any person in a place where

the subject has a reasonable expectation of privacy and without the

subject's consent. RCW 9A.44.115(2).

  Mr. Glas argued that the women had no reasonable expectation of privacy

in a public mall, and there was no evidence he was sexually aroused or

gratified by his conduct. He moved to dismiss the prosecution. The

court denied his motion.

  After a bench trial, the court found that Mr. Glas took photographs

up each woman's skirt without her consent or knowledge. Each woman had

"a reasonable expectation of privacy while at her workplace to be free

from non-consensual photographing up underneath her skirt." Clerk's

Papers (CP) at 47, 48. The court found the photographs were hostile

intrusions that violated the privacy interest and expectation of the

women and that the pictures were taken to arouse or gratify sexual desire

on an internet web site.

  Mr. Glas was convicted of two counts of voyeurism. He appealed.

Our commissioner refused to affirm on the merits based on the absence of

prior judicial interpretation of the voyeurism statute and Mr. Glas's

constitutional challenge.



                          STATUTORY ANALYSIS

                          Standard of Review

  The trial court's interpretation of a statute is a question of law which

we review de novo.  State v. Avila, 102 Wn. App. 882, 888, 10

P.3d 486 (2000), review denied, 143 Wn.2d 1009 (2001).



                             The Statute

  A person commits the crime of voyeurism if, for the purpose

  of arousing or gratifying the sexual desire of any person, he

  or she knowingly views, photographs, or films 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.



RCW 9A.44.115(2) (emphasis added).

    (b) "Place where he or she would have a reasonable

  expectation of privacy" means:

    (i) A place where a reasonable person would believe that

  he or she could disrobe in privacy, without being concerned

  that his or her undressing was being photographed or filmed by

  another; or

    (ii) A place where one may reasonably expect to be safe

  from casual or hostile intrusion or surveillance[.]



RCW 9A.44.115(1) (emphasis added).

  Mr. Glas disputes the court's interpretation of the statutory definition

of a place where a person has a reasonable expectation of privacy. He

contends that, as a matter of law, the public area of a shopping mall is

not such a place as contemplated by the statute.



                               The Problem

  Up-skirt video voyeurism is apparently a thriving internet business, with

about a hundred web sites devoted to up-skirt and other candid body shots

of unsuspecting female victims in public places. Professionals employed by

these sites and amateur contributors are part of a cottage industry of

stalking and secretly filming victims and disseminating the images on the

internet. David D. Kremenetsky, Insatiable "Up-Skirt" Voyeurs Force

California Lawmakers to Expand Privacy Protection in Public Places,

31 McGeorge L. Rev. 285, 287 (2000).

  In most states, these voyeurs escape prosecution under outdated or

nonexistent voyeurism statutes. Voyeur statutes that define voyeurism in

outmoded terms of intrusion into "private" places, such as homes,

changing rooms, or other like places, leave the video predator in public

places free to pursue his victims with impunity. Lance E. Rothenberg,

Comment, Re-Thinking Privacy: Peeping Toms, Video Voyeurs, and the

Failure of Criminal Law to Recognize a Reasonable Expectation of Privacy

in the Public  Space, 49 Am. U. L. Rev. 1127, 1145-46 (2000).



                               Other Jurisdictions

  Many state voyeurism statutes are ineffectual, because they are mired in

archaic, pre-technological concepts of the nature of privacy and the crime

of voyeurism.

  Some state statutes are couched in old-fashioned language about

Peeping Toms. For example, in Delaware, a Peeping Tom is a trespasser

who knowingly enters upon occupied property or premises. Del. Code Ann.

tit. 11, § 820 (1996). In Georgia, a Peeping Tom is one who peeps

through windows or doors. Ga. Code Ann. § 16-11-61 (1999). See

Rothenberg, supra, at 1142 n.63.

  Most state statutes prohibit nonconsensual viewing only in "private"

places. These places are defined as dwellings and similar locations where

people disrobe. These statutes do not prohibit up-skirt intrusions in

public places where a reasonable person would not disrobe. Rothenberg,

supra, at 1151-52.

  A typical example is Florida, where a person commits the offense of

voyeurism when he or she, "with lewd, lascivious, or indecent intent,

secretly observes, photographs, films, videotapes, or records another

person when such other person is located in a dwelling, structure, or

conveyance and such location provides a reasonable expectation of

privacy." Fla. Stat. Ann. § 810.14(1) (West 1999). In Indiana, a person

who peeps or goes upon the land of another with the intent to peep into

an occupied dwelling of another person, or who peeps into an area where

an occupant of the area reasonably can be expected to disrobe, including

restrooms, baths, showers, and dressing rooms, without the consent of the

other person, commits voyeurism. Ind. Code Ann. § 35-45-4-5 (West 1998).

  A few states have enacted specific legislation targeting the precise

problem presented here. For example, California criminalizes secret,

nonconsensual filming under or through the clothing. Rothenberg,

supra, at 1160. This has the advantage of focusing on the

conduct instead of the place. The California statute is limited,

however, by requiring that the victim be identifiable. Id.

Most victims of up-skirt predators cannot be identified from the

pictures. Kremenetsky, supra, at 291.



                                Washington

  The question before us is whether Washington's voyeurism statute has

avoided these pitfalls. We believe that it has. It has done so by defining

not one, but two categories of places where people have a reasonable

expectation of privacy.

  We apply established rules of statutory interpretation to RCW

9A.44.115. We begin by determining and giving effect to the intent of

the Legislature. State v. Hansen, 122 Wn.2d 712, 717, 862 P.2d

117 (1993). Whenever possible, we interpret a statute so as to render no

part meaningless or superfluous. Different language signifies different

intent. State v. Jackson, 137 Wn.2d 712, 724, 976 P.2d 1229

(1999); Cazzanigi v. Gen. Elec. Credit Corp., 132 Wn.2d 433,

446, 938 P.2d 819 (1997); Dep't of Transp. v. State Employees' Ins.

Bd., 97 Wn.2d 454, 458, 645 P.2d 1076 (1982).

  In RCW 9A.44.115, the Legislature described two categories of places

where a person has a reasonable expectation of privacy. We must then try

to interpret the statute in a way that gives meaning to both RCW

9A.44.115(1)(b)(i) and (ii).

  First, the statute protects the traditional venue of the Peeping

Tom-places "where a reasonable person would believe that he or she could

disrobe in privacy, without being concerned that his or her undressing

was being photographed or filmed by another[.]" RCW 9A.44.115(1)(b)(i).

As we read it, this includes places such as bathrooms, bedrooms, changing

rooms, tanning booths-i.e., "private" places.

  The Washington Legislature did not, however, stop there. It also

gave us RCW 9A.44.115(1)(b)(ii). If it is not superfluous, this section

protects places other than those protected in (b)(i), i.e., not "private"

places where one would normally disrobe, but places where one would

normally keep one's clothes on. The reasonable expectation of privacy

protected in these places is, therefore, something other than the freedom

to disrobe.

  Read together, the plain language of RCW 9A.44.115(1)(b)(ii) and RCW

9A.44.115(1)(c) (definition of surveillance) recognizes as reasonable the

expectation to be free from secret observation, spying, and invasion of

the "privacy of the person." When the private places specified in RCW

9A.44.115(1)(b)(i) are removed from consideration, what remains are

nonprivate places-i.e., "public" places-where people remain clothed.

Washington's protection from voyeurism is not then restricted to private

places, and the expectation of privacy is not limited to the freedom to

disrobe unobserved. If RCW 9A.44.115(1)(b)(ii) means anything at all, it

criminalizes hostile intrusions upon the privacy of the clothed person in

a public place.

  People preserve their bodily privacy by wearing clothes in public

and undressing in private. It makes no sense to protect the privacy of

undressing unless privacy while clothed is presumed.

  Our interpretation gives effect to a legislative intent to protect

the right of people to control the exposure of their bodies to public

view. The statute protects people, not places. See Katz v.

United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576

(1967) (saying the same thing about the Fourth Amendment). The privacy

protection attaches when two conditions are met: first, a person

exhibits a subjective expectation of privacy, and second, that

expectation is one that society is prepared to recognize as reasonable.

Id. at 361 (Harlan, J., concurring); see also

Rothenberg, supra, at 1139 n.56.



                          Sexual Arousal Requirement

  Mr. Glas also contends the State failed to prove that he was sexually

aroused or gratified by the offending conduct. We need not speculate on

the nature of the evidence the State might have presented on that point.

The statute requires only that the purpose of the behavior be to arouse or

gratify in some manner some sexual desire of any person. RCW 9A.44.115(2).

That commonsense reference followed from the evidence here, including Mr.

Glas's statement that the photographs were ultimately destined for a

pornographic internet web site.

  The court applied the statute correctly.

 

                       CONSTITUTIONAL CONSIDERATIONS

  Mr. Glas concedes up-skirt photography is not constitutionally protected.

He presents instead a third party challenge to the statute, claiming it is

unconstitutional on its face. He contends that it is unconstitutionally

vague because it does not define the term "hostile intrusion." He contends

this vague term renders the statute overbroad because it encompasses

within its legitimate sweep conduct protected by the First Amendment.



                                Vagueness

  We presume this statute is constitutional. Mr. Glas then bears the burden

of proving it is not, beyond a reasonable doubt. See City of Seattle

v. Eze, 111 Wn.2d 22, 26, 759 P.2d 366, 78 A.L.R.4th 1115 (1988).

Moreover, we add to this general presumption of constitutionality every

presumption in favor of its constitutionality, because the purpose of RCW

9A.44.115 is to promote public safety and welfare, and the statute bears a

reasonable and substantial relationship to that purpose. See State v.

Lee, 135 Wn.2d 369, 390, 957 P.2d 741 (1998).

  The due process clause of the Fourteenth Amendment requires fair warning

of proscribed conduct. City of Seattle v. Montana, 129 Wn.2d 583,

596, 919 P.2d 1218 (1996). A statute is not unconstitutionally vague

merely because it cannot be predicted with complete certainty at which

point conduct would be prohibited. City of Seattle v.

Abercrombie, 85 Wn. App. 393, 399-400, 945 P.2d 1132 (1997). It is

sufficient that a criminal statute defines the criminal offense with

sufficient definiteness that ordinary people can understand what is

proscribed, and that it provides ascertainable standards of guilt

sufficient to preclude arbitrary enforcement. Montana, 129 Wn.2d at 596-97.

  Undefined terms in a statute take their regular dictionary meaning.

State v. Yokley, 91 Wn. App. 773, 959 P.2d 694 (1998), aff'd

sub nom. In re Personal Restraint of Yim, 139 Wn.2d 581, 989 P.2d

512 (1999); State v. McDougal, 120 Wn.2d 334, 350, 841 P.2d 1232

(1992); S. Martinelli & Co. v. Dep't of Revenue, 80 Wn. App. 930,

938, 912 P.2d 521 (1996). Washington courts use Webster's Third New

International Dictionary in the absence of other authority. In re

Personal Restraint of Well, 133 Wn.2d 433, 438, 946 P.2d 750 (1997).

  Among the dictionary meanings of "hostile" are: (1) "of or relating

to an enemy"; (2) "marked by malevolence and a desire to injure"; (3)

"marked by antagonism or unfriendliness"; (4) "adverse to the interests

of an owner or possessor of property." Webster's Third New International

Dictionary 1094 (1993). Black's Law Dictionary defines "hostile" in the

same way: "Having the character of an enemy; standing in the relation of

an enemy." Black's Law Dictionary 738 (6th ed. 1990). The legal

connotations include being antagonistic in the context of a hostile

witness, and conduct adverse to ownership interests in the context of

adverse possession. Id.

  An "intrusion" is an "[a]ct of wrongfully entering upon or taking

possession of property of another." Black's Law Dictionary 823. Webster's

definition of "intrusion" includes an "unwelcome bringing in or entering."

Webster's Third New International Dictionary 1187.

  If the statute employed the term "hostile intrusion" to mean something

other than its commonly accepted meaning and failed to define it, Mr. Glas

might have a point. However, Mr. Glas does not contend this. An ordinary

person would understand that the clothing of strangers represents a

boundary beyond which any uninvited intrusion would be hostile. Even the

most literacy-challenged citizen would be led inexorably to the conclusion

that surreptitiously photographing under the skirt of an unsuspecting

store clerk, even in a public mall, is both hostile and an

intrusion. And any doubt is easily resolved by consulting an

ordinary dictionary.



                              Overbreadth

  The general rule is that one cannot rely on hypothetical conduct in

urging the unconstitutionality of a statute, but must be adversely

affected by the statute challenged. State v. Lundquist,

60 Wn.2d 397, 374 P.2d 246 (1962). When a statute's overbreadth is alleged

to violate the First Amendment, however, the rule does not apply.

Hypotheticals may be used to demonstrate the alleged overbreadth.

Blondheim v. State, 84 Wn.2d 874, 876, 529 P.2d 1096 (1975). A

criminal statute that regulates conduct is facially overbroad in

violation of the First Amendment only if it prohibits a substantial

amount of constitutionally protected conduct beyond its legitimate scope.

City of Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572

(1989).

  RCW 9A.44.115 is a criminal statute that regulates conduct. Mr.

Glas must, therefore, demonstrate substantial overbreadth. Mr. Glas

simply fails to articulate any First Amendment overbreadth argument. He

concedes that "clearly" security camera surveillance and eye-level, arms-

length viewing and photography do not constitute hostile intrusions under

the statute. Only "photographing from certain angles" is prohibited.

Appellant's Br. at 8-9. He thus concedes that the hypothetical conduct

he describes, such as openly photographing or romantically gazing at

people, is not outlawed by the statute. Mr. Glas fails to suggest any

protected conduct that is prohibited by this statute.

  This is consistent with the statutory analysis. A "hostile intrusion" is a

violation of the expectation of privacy accepted as reasonable in the

particular circumstances. In a private place, this includes viewing or

filming of any kind, because the degree of privacy expected is total. In

public places, the expectation of privacy is lower, and the sweep of

statutorily forbidden conduct is correspondingly narrowed.



                               CONCLUSION

  The statute recognizes an expectation of privacy in public places. Mr.

Glas has not met his burden of proving the statute is unconstitutional on

its face.

  We affirm the conviction



  KURTZ, C.J., and SCHULTLHEIS, J., concur.