Durant v. State

2008 OK CR 17, 188 P.3d 192, 2008 Okla. Crim. App. LEXIS 14, 2008 WL 2191466

• Court: Court of Criminal Appeals of Oklahoma
• Decided: May 23, 2008
• Docket: F-2007-164
• Status: Published

Opinions

SUMMARY OPINION

C. JOHNSON, Viee-Presiding Judge.

{1 Appellant, Kevin Wayne Durant, was convicted by the Honorable Twyla Mason Gray, District Judge, after a bench trial in Oklshoma County District Court, Case No. CF-2005-5092, of Taking Clandestine Photographs (21 0.8.2001, § 1171(B)), After Conviction of a Felony. On February 23, 2007, the trial court sentenced Appellant to six years in prison, provided that on successful completion of certain behavioral programs, the balance of the sentence would be suspended. This appeal followed.

T2 Appellant raises the following propositions of error:

1. The statute under which Appellant was convicted is unconstitutional.

2. The video evidence offered against Appellant must be suppressed as the product of an illegal search.

3. The evidence was insufficient to show Appellant knowingly activated the video camera.

13 After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, tran-seripts, and briefs of the parties, we reverse. The evidence presented at the bench trial showed that Appellant had used a digital camera, hidden in a backpack, to take photographs of a female student in the lobby of an Oklahoma City community college without her knowledge. The evidence supported a conclusion that Appellant had intentionally tried to position the backpack so that the camera, nestled inside an open compartment of the pack, would capture images of the student's body underneath her skirt.

4 In Proposition 1, Appellant makes several arguments, one of which is that the crime defined in § 1171(B) does not apply to persons photographed in a public place. Appellant raised this issue before trial in a Motion to Dismiss filed May 26, 2006, and after a hearing held August 3, 2006, the trial court denied the motion. The statute under which Appellant was charged provides, in relevant part:

[Anyone] who uses photographic, electron-ie or video equipment in a clandestine manner for any illegal, illegitimate, prurient, lewd or lascivious purpose with the unlawful and willful intent to view, watch, gaze or look upon any person without the knowledge and consent of such person when the person viewed is in a place where there is a right to a reasonable expectation of privacy [is guilty of a felony].

21 0.98.2001, § 1171(B) (emphasis added).

15 Appellant claims that any attempt to clandestinely photograph any part of a person, while the person is in a public place, is not a crime under § 1171(B). The State focuses, instead, on the part of the body that is being photographed, and the person's attempts to protect it from view in a public place.

T 6 The plain language of § 1171(B) refers to one's reasonable expectation of privacy while "in" a particular place, not to one's expectations about a particular place "on" one's body. Section 1171 even offers examples of where a person would reasonably expect the kind of privacy that the statute aims to protect, including any "place of residence," as well as locker rooms, dressing rooms, and restrooms. 21 0.9.2001, § 1171(A). Under the doctrine of ejusdem generis¹ these specific examples should guide our understanding of what the Legislature intended as the kinds of "places" to which the statute applies.² Given that this list includes only places that are closed to the general public-and "places" where a person may be, not "places" on a person's body-we conclude that the conduct at issue here was simply not contemplated by the Legislature when § 1171(B) was enacted.

17 We have long held that statutes defining crimes should be strictly construed:

A statute will not be enlarged by implication or intendment beyond the fair meaning of the language used, or what their terms reasonably justify, and will not be held to include offenses and persons other than those which are clearly described and provided for, although the court in interpreting and applying particular statutes may think the legislature should have made them more comprehensive.

State v. Tran, 2007 OK CR 39, ¶ 8, 172 P.3d 199, 200. As we held in State v. Young, 1999 OK CR 14, ¶ 27, 989 P.2d 949, 955, "[i]t is not our place to interpret a statute to address a matter the Legislature chose not to address, even if we think that interpretation might produce a reasonable result."

T8 The purpose of strict construction is not to reward those who commit acts which should be punishable. Rather, it is to ensure that when liberty is at stake, all citizens have fair and clear warning of what conduct is prohibited, and, equally important, the severity of punishment for any infraction.³

T9 We do not believe that § 1171(B), as currently written, covers the clandestine taking of photographs of a person who is in a public place, regardless of what part of the body the perpetrator focuses on. The fact that Appellant was found to have purposefully photographed the complainant from a vantage point that would reveal underelothes is reprehensible, but does not alter our understanding of the statute.

10 Accordingly, we find merit in Proposition 1 of Appellant's brief, and conclude that his conviction must be REVERSED. Our resolution of this issue renders Appellant's remaining arguments moot.

DECISION

T11 The Judgment and Sentence of the district court is REVERSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

CHAPEL and A. JOHNSON, JJ., concurs and joins Judge LEWIS's writing. LEWIS, J., specially concurs. LUMPKIN, P.J., dissent.

1 . A traditional rule of statutory construction, the doctrine of ejusdem generis holds that where general words follow particular words in a statute, the general words will be considered as applicable only to things of the same general character, kind, nature, or class as the particular things, and cannot include wholly different things. Gilbert v. State, 1988 OK CR 268, ¶ 6, 765 P.2d 1208, 1210.

2 . Subsection A of § 1171 punishes-as a misdemeanor-anyone who unlawfally and willfully "hides, waits, or otherwise loiters in the vicinity of any private dwelling house, apartment building, any other place of residence, or in the vicinity of any locker room, dressing room, restroom or any other place where a person has a right to a reasonable expectation of privacy...." The last clause (adding locker rooms, dressing rooms, etc.) was added in 2001, by the same piece of legislation that added the crime at issue here (as Subsection B). Laws 2001, ch. 386, § 2. Although Subsections A and B describe slightly different offenses, their common structure and word choice suggest that the word "place" means the same thing in each. Neither subsection distinguishes between the parts of a person's body. Indeed, each subsection makes it a crime to look upon (and, in the case of Subsection B, to disseminate an image of) any part of another person's body in the situations described.

3 . Recently, faced with very similar facts, we reached the same conclusion about the applicability of § 1171(B) in State v. Ferrante, Case No. $-2007-31 (March 7, 2008) (not for publication). In that case, we affirmed a district court's order dismissing prosecution, after the court found the defendant's conduct (clandestinely attempting to take photographs under a woman's skirt in a public place) was not covered by § 1171(B). Shortly after Ferrante was decided, the Legislature amended § 1171. See 2008 Okla.Sess.Laws Ch. 38 (HB 2606), available at http://www.oscn. net/applicat ions/oscn/DeliverDocument.asp?Cite ID=451486. The substance of that amendment is instructive. The amendment makes no substantive changes or clarifications to Subsection B. Rather, the amendment creates another crime entirely, Subsection C, which appears to refer quite specifically to the conduct at issue here- and which punishes that conduct not as a felony, but as a misdemeanor.