State v. Panek

177 A.3d 1113, 328 Conn. 219
CourtSupreme Court of Connecticut
DecidedJanuary 31, 2018
DocketSC 19772
StatusPublished
Cited by12 cases

This text of 177 A.3d 1113 (State v. Panek) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Panek, 177 A.3d 1113, 328 Conn. 219 (Colo. 2018).

Opinion

D'AURIA, J.

**221*1116The 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.

**222The 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 **223of 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. *1117Suspicious 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 **224element 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. at 635, 145 A.3d 924.

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

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Cite This Page — Counsel Stack

Bluebook (online)
177 A.3d 1113, 328 Conn. 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-panek-conn-2018.