State v. Hayes, No. 120,417

57 Kan.App.2d 895

462 P.3d 1195

STATE of Kansas, Appellee,

v.Christopher HAYES, Appellant.

No. 120,417

Court of Appeals of Kansas.

Opinion filed March 6, 2020

Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Arnold-Burger, C.J., Hill and Gardner, JJ.

Arnold-Burger, C.J.:

Christopher Hayes filmed one of his neighbors, A.W., through her window, in a state of undress. It was dark outside, some lights were on inside, and A.W.'s blinds were up on one of her windows. Hayes made the recording without A.W.'s knowledge or permission. The State charged Hayes with breach of privacy. During his trial the district court allowed the State to present evidence that Hayes bought a SPYTEC video watch. There was no dispute that Hayes did not use the watch to film A.W. Additionally, the court allowed the State to present evidence that neighbors had observed Hayes looking into their windows.

A jury convicted Hayes of breach of privacy. On appeal, Hayes argues there was insufficient evidence to support the conviction, the district court erred in admitting certain evidence, and the court violated his right to a fair trial by using an erroneous jury instruction and placing guilty before not guilty on the verdict form. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In early 2017, Shawna Prigmore and Hayes were married. At the time, Prigmore was suspicious of some of Hayes' behavior. For instance, Hayes would take their dogs on walks that took much longer than anticipated and Prigmore could not find Hayes when she tried to do so. At some point, Prigmore told Hayes that she wanted to see his phone. Hayes gave Prigmore his phone and Prigmore noticed that Hayes had logged into Facebook under the name John Davidson.

Prigmore asked Hayes about the identity of John Davidson. In response Hayes said, " ‘You caught me. Divorce me.’ " Prigmore told Hayes to write down all of his account usernames and passwords and he did. Later that day, Prigmore signed into the accounts and found an email that included an attachment of a woman laying topless on a bed. Prigmore contacted the police to report what she had found.

Detective Troy Bussard with the Wichita Police Department located the woman in the video, A.W., who lived near Hayes when the video was recorded. A.W. told Detective Bussard that she did not give anyone permission to film her. Based on that information, the State charged Hayes with breach of privacy and alleged that the crime was sexually motivated.

A.W. testified at trial that she and Hayes lived near each other in a gated, secured access community. A.W. viewed the video that Prigmore found and identified herself as the woman in the video. A.W. testified that she did not know the video was being filmed and did not give anyone permission to film her. According to A.W., while she was being filmed, she was laying on her bed wearing only her underpants, reading her Kindle, and likely watching television.

A.W. stated that she considered her home to be a private space, somewhere where she could "escape from the outside world." According to A.W., if she were to stand outside her window she could not see into the house. But A.W. acknowledged that someone taller than her may be able to see in, but she reiterated that the window was a "high-up" window. The photograph presented to the jury shows a window, the bottom of which appears to be about 6 feet off the ground. Although the complex does not allow residents to park in the area, they all have access to it via a large parking area between it and another unit. A.W. acknowledged that the bedroom window's blinds were pulled up when the video was recorded.

Hayes did not present any evidence at trial. In closing arguments, Hayes argued, in part, that there was insufficient evidence to show that A.W. had a reasonable expectation of privacy because the blinds on her window were up when he recorded the video.

The jury found Hayes guilty of breach of privacy and found that the crime was sexually motivated. Hayes timely appeals.

Additional facts will be added as necessary.

ANALYSIS

There was sufficient evidence to support Hayes' conviction.

Hayes first argues that there was insufficient evidence to support his conviction because (1) A.W. did not have a reasonable expectation of privacy in her bedroom and (2) there was no indication that he recorded A.W. using a concealed device.

We examine our standard of review.

" ‘When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.’ [Citation omitted.]" State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018).

But this case also involves statutory interpretation—the meaning of the words used in the breach of privacy statute— K.S.A. 2019 Supp. 21-6101(a)(6). Interpretation of a statute presents a question of law over which appellate courts have unlimited review. State v. Alvarez , 309 Kan. 203, 205, 432 P.3d 1015 (2019). The most fundamental rule of statutory construction is that the intent of the Legislature governs if we can determine that intent. State v. LaPointe , 309 Kan. 299, 314, 434 P.3d 850 (2019).

The State charged Hayes with breach of privacy, as defined by K.S.A. 2014 Supp. 21-6101(a)(6).

"Breach of privacy is knowingly and without lawful authority:

....

"(6) installing or using a concealed ... camera of any type, to secretly ... film ... or record by electronic or other means, another, identifiable person under or through the clothing being worn by that other person or another, identifiable person who is nude or in a state of undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy ." (Emphases added.) K.S.A. 2014 Supp. 21-6101(a).

The statute does not define "concealed" or "reasonable expectation of privacy," the only two provisions raised by the parties here. See K.S.A. 2019 Supp. 21-6101.

Hayes argues that A.W. did not have a "reasonable expectation of privacy" and that the phone he used to record A.W. was not "concealed" as the statute required.

There was sufficient evidence for a jury to conclude that A.W. had a reasonable expectation of privacy in her bedroom.

The breach of privacy statute requires that the person whose privacy was breached had a "reasonable expectation of privacy" under the circumstances. K.S.A. 2019 Supp. 21-6101(a)(6). Hayes argues that—as a matter of law—A.W. did not have an expectation of privacy because her blinds were up. So we turn first to the meaning of a "reasonable expectation of privacy" as used in the statute.

Kansas courts have not addressed the phrase "reasonable expectation of privacy" as it is used in K.S.A. 2019 Supp. 21-6101(a)(6). So we look to cases that involve similar issues or statutes that involve a similar analysis to see if we can draw any parallels to aid us in interpreting the meaning of this statutory phrase.

Hayes argues that we should look at this court's decision in State v. Kowalewski , No. 108,943, 2013 WL 5925967 (Kan. App. 2013) (unpublished opinion), for guidance. In Kowalewski , a panel of this court addressed what constitutes a "private place" as used in K.S.A. 2012 Supp. 21-6101(a)(3). 2013 WL 5925967, at *1. We held that a private place is a place where a "person may reasonably expect to be safe from surveillance or uninvited intrusion." 2013 WL 5925967, at *1.

The State charged Kowalewski with breach of privacy, for "entering with intent to listen surreptitiously to private conversations in a private place or to observe the personal conduct of any other person or persons entitled to privacy therein " under K.S.A. 2012 Supp. 21-6101(a)(3). (Emphases added.) 2013 WL 5925967, at *3. The victim discovered Kowalewski looking into her window with his face up against the window pane. To look into her window Kowalewski walked up the woman's steps, moved to the side of the house, and stepped onto a concrete slab so that he could look through the window which was 5 to 6 feet off the ground.

On appeal, Kowalewski argued the State failed to prove that he was in a private place. This court held that the area Kowalewski was standing in was a private place because it was reasonable to expect that no one will stand at the side of your home and stare into your living room. The court dismissed Kowalewski's argument that this interpretation would lead to the criminalization of lots of ordinary conduct, such as the conduct of a person who can see through his or her neighbor's windows. The court reasoned that Kowalewski's argument overlooked the requirement that the violator must have entered the area to observe the personal conduct. If a person can see into the house next door, that is merely incidental to living in his or her place of residence. The court noted that

"to the extent that one's windows are without blinds or curtains and a neighbor is easily able to see in, the resident may not ‘reasonably expect to be safe’ from surveillance by the neighbor. The same is true with regard to passers-by on the street if you leave the blinds or curtains open on the front window to your house." 2013 WL 5925967, at *3.

But ultimately that situation did not apply to Kowalewski because he entered his neighbor's property and the neighbor had "a reasonable expectation that no one would be peering in the window on the side of her house from a standing position...