State v. Panek , 166 Conn. App. 613 ( 2016 )

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STATE OF CONNECTICUT v. JOHN PANEK
(AC 36820)
DiPentima, C. J., and Sheldon and Prescott, Js.
Argued October 22, 2015—officially released July 5, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, geographical area number twenty,
Wenzel, J.)
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were David I. Cohen, state’s
attorney, and Nichol Peco, assistant state’s attorney, for
the appellant (state).
William B. Westcott, for the appellee (defendant).
Opinion
SHELDON, J. This case concerns the ultimate facts
that the state must plead and prove to convict a defen-
dant of voyeurism under General Statutes § 53a-189a,
Connecticut’s video voyeurism statute.1 Section 53a-
189a was enacted by the legislature in 1999, and it now
provides in relevant part: ‘‘(a) A person is guilty of
voyeurism when, (1) with malice, such person know-
ingly 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 reason-
able expectation of privacy, or (2) with intent to arouse
or satisfy the sexual desire of such person or any other
person, such person knowingly photographs, films, vid-
eotapes or otherwise records the image of another per-
son (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. . . .’’
So framed, the statute has two parallel subdivisions,
each of which establishes a separate basis for proving
a defendant guilty of voyeurism thereunder. Each subdi-
vision sets forth the five common conduct, circum-
stances and mental state elements of that offense plus
one additional, aggravating mental state element that
distinguishes the two subdivisions from one another.
The first common element, which describes the conduct
a defendant must engage in to commit voyeurism under
either subdivision, is (1) that he photograph, film, video-
tape or otherwise record the image of another person.
The second, third and fourth common elements, which
describe the circumstances under which the defendant
must engage in the proscribed conduct in order to com-
mit either form of that offense, are that he do so (2)
without the other person’s knowledge and consent, (3)
while the other person is not in plain view, and (4) under
circumstances where the other person has a reasonable
expectation of privacy. The fifth common element,
which describes the mental state with which the defen-
dant must engage in the proscribed conduct under the
statutorily prescribed circumstances in order to commit
voyeurism, is that he do so (5) knowingly. Finally, the
sixth essential element of voyeurism, an aggravating
mental state that is different under each subsection of
the statute, is (6) that the defendant commit the five
common elements of voyeurism either with malice, in
violation of subdivision (1) of subsection (a) of the
statute, or with intent to arouse or satisfy the sexual
desire of himself or of another person, in violation of
subdivision (2) of subsection (a) of the statute.
The question presented on this appeal is whether
a defendant can be prosecuted for and convicted of
voyeurism based upon allegations and proof that he
surreptitiously recorded the image of another person
while he and she were engaged in consensual sexual
activity with one another in a private place. This ques-
tion comes before us on the state’s appeal from the
dismissal of three consolidated informations charging
the defendant, John Panek, with violating § 53a-189a
(a) (1) in that manner against three different women.
The informations were dismissed on the ground that
the defendant’s recording his own sexual activity with
another person cannot establish the third essential ele-
ment of voyeurism with respect to that person, to wit:
that he recorded the other person’s image when she
was ‘‘not in plain view . . . .’’ Interpreting the phrase
‘‘not in plain view,’’ as used in the statute, to mean ‘‘not
in plain view of the defendant,’’ the trial court concluded
that the facts alleged by the state did not tend to estab-
lish the third essential element as to any of the com-
plainants because each was allegedly in the defendant’s
immediate physical presence, and thus in his plain
view, when he recorded her image. (Emphasis added.)
The state claims that the trial court erred in so inter-
preting the statute, and thus in dismissing the three
informations, because the meaning of its ‘‘not in plain
view’’ element is not plain and unambiguous on the
face of the statute, as the trial court ruled. It contends,
to the contrary, that if the statute is properly construed
in light of its legislative history, the disputed element
must be understood to require only proof, as here
alleged, that the complainants were ‘‘not in plain view
of the public’’ when the defendant recorded their
images. The defendant disagrees, and so do we. We
conclude that the judgment of the trial court must be
affirmed.
This case arises against the following factual and
procedural background. On or about July 30, 2011, a
woman with whom the defendant had recently been
involved in an intimate relationship reported to officers
from the Wilton Police Department that approximately
three weeks earlier she had caught the defendant mak-
ing a recording with his cell phone of a private sexual
encounter between them in the bedroom of her New
York City apartment. When she objected to his conduct
in so doing, which she had not previously known of or
consented to, he complied at once with her demand
that he delete the recording after telling her that it was
the first time he had made such a recording of them.
Twelve days later, however, having decided to end her
relationship with the defendant and remembering that
he had a computer with a camera in it facing the bed
in his home in Wilton, where he and she had previously
engaged in sexual activity, she traveled to Wilton to
break up with him and confront him as to whether he
had other recordings of their private sexual encounters
on his computer. When he admitted that he did, insisting
that he had used them only for his own personal sexual
gratification, she demanded that he pull them all up so
he and she could delete them together. In response to
her demand, the defendant pulled up a file marked with
her initials, but quickly deleted it before she could see
what was in it or where in his computer files it had
been stored. Over her protest that he had not complied
with her demand, he stated that he had not wanted to
show her where the recordings were stored because
he also had recordings of other women in that location,
all assertedly consented to, which he did not want her
to see. Armed with this information, the Wilton police
secured a warrant to search the defendant’s Wilton
home, including all of his computer equipment and file
storage devices, for similar recordings. Thereafter,
although the defendant initially had told the officers
who searched his residence that he had no other uncon-
sented-to recordings of the complainant or others in
his possession, he recontacted them to tell them the
names of two other women whose images he had
secretly photographed, without their knowledge and
consent, when they were undressed in his presence.
On the basis of the foregoing information, which was
subsequently set forth in an arrest warrant affidavit,
the defendant was arrested and charged, in separate
informations, with one count of voyeurism as to each
of the three women under § 53a-189a.2
To test the legal sufficiency of the state’s allegations
to charge him with voyeurism, the defendant moved
to dismiss the three informations, without procedural
objection by the state,3 under Practice Book § 41-8 (2).4
In support of his motion to dismiss, the defendant
argued that if the state’s allegations were those set forth
in his arrest warrant affidavit, as he and the state had
stipulated for the purpose of the motion, then the state
had failed to charge him with an offense because it had
not alleged that he recorded the image of any of the
complainants while she was ‘‘not in plain view.’’ Con-
tending that the perspective from which it must be
determined if a complainant is ‘‘not in plain view’’ at
the time her image is being recorded is that of the
defendant, as the alleged voyeur, the defendant argued
that ‘‘[i]t defies the plain requirement of the language
of sub[paragraph] (B) [of the statute] for the state to
claim it can prove a complainant is not in plain view
of an accused in any case where that complainant has
chosen to remove her clothes and engage in sexual
activity with the accused. Surely, under such circum-
stances one could not be any more in the plain view
of another.’’ (Emphasis omitted.)
The state did not disagree with the defendant that
any person who disrobes in his presence and engages
in sexual activity with him puts herself in his plain view.
It argued, however, that the ‘‘not in plain view’’ element
of voyeurism should not be evaluated from the defen-
dant’s perspective, but instead from the perspective
of the camera or other device he used to record the
complainant’s image or, in the alternative, from the
perspective of the general public.
The first of the state’s alternative proposals for inter-
preting the disputed element was argued as follows in
its memorandum in opposition to the motion to dismiss:
‘‘What the court should be focused on is where the
camera/computer/phone is placed, not where the defen-
dant is. To the victim it makes no difference. She had
no knowledge of the recording device [and] therefore
she was not in plain view to it.’’ The state cited no
language from the statute in support of this argument.
The state’s second proposal for interpreting the dis-
puted element, which it advanced for the first time at
oral argument on the motion, was that the phrase ‘‘not
in plain view’’ should be held to mean ‘‘not in public
view.’’ Such an interpretation would be appropriate, the
state argued, because it would afford the protection of
the statute to all persons whose images are surrepti-
tiously recorded by others, without their knowledge
and consent, unless at the time such recordings are
being made, they are knowingly exposing those parts
or aspects of themselves that are being so recorded to
public view. This part of the state’s argument was also
unsupported by any language from the statute.
On April 21, 2014, the trial court issued a memoran-
dum of decision granting the motion to dismiss. It ruled
that the ‘‘not in plain view’’ element of voyeurism, as
set forth in § 53a-189a (a) (1) (B), plainly and unambigu-
ously requires the state to plead and prove that when
the defendant recorded the image of a complainant
without her knowledge and consent, he did so while
she was not in the defendant’s plain view.
In reaching this result, the court first examined the
text of the statute, as required by General Statutes § 1-
2z, to determine if the legislature’s intent as to the
meaning of the disputed element could be discerned,
plainly and unambiguously, therefrom. It concluded, on
the basis of that examination, that the words ‘‘not in
plain view’’ do indeed have a plain and unambiguous
meaning as to the perspective from which it must be
determined if the complainant is ‘‘not in plain view’’
when the defendant records her image. That meaning,
it determined, is fully consistent with the defendant’s
proposed interpretation, namely ‘‘not in plain view of
the defendant,’’ but not at all consistent with either of
the alternative interpretations proposed by the state.
(Emphasis added.)
‘‘Looking for the straightforward meaning of the
phrase ‘plain view,’ ’’ the court declared, ‘‘is not a diffi-
cult task.’’ The court stated further: ‘‘The word ‘plain,’
when used as an adjective, has several meanings. Those
most applicable here are: ‘clearly evident,’ and ‘open
and without pretense.’ Webster’s II New College Dic-
tionary (2001) p. 841. It is also defined as ‘free of duplic-
ity or subtlety.’ Webster’s Ninth New Collegiate
Dictionary (1990) p. 898. In a word, it means ‘obvious.’
Merriam-Webster’s Dictionary, available at http://
www.merriam-webster.com.
‘‘ ‘View,’ when used as a noun, means ‘the act of
seeing or examining.’ Webster’s Ninth New Collegiate
Dictionary, supra, p. 1314. It also means ‘the field of
vision.’ Webster’s II New College Dictionary, supra, p.
1231. Both of these possible meanings suggest that the
act of viewing is being performed by a person.
‘‘Utilizing these definitions, the term ‘plain view’
means that which can be readily observed from a certain
vantage point without the benefit of any special effort
or aid being utilized to view an object. The term suggests
the absence of any trickery, artifice, or device being
used in the viewing process such that the view in ques-
tion is reasonably evident to a person being photo-
graphed. This understanding of that phrase is certainly
compatible with its more common use in the context
of search and seizure cases in criminal actions. See,
e.g., Horton v. California, 496 U.S. 128 [134] 110 S. Ct.
2301, 110 L. Ed. 2d 112 (1990).’’
‘‘As employed in the statute,’’ the court continued,
‘‘the phrase is used in the larger clause, ‘while such
other person is not in plain view.’ It is clear that the
other person here is the person being photographed or
depicted in the video. This is not disputed by the parties.
Where the state and the defendant disagree, however,
is whose view is being described in the phrase ‘plain
view.’ ’’ Upon so framing the issue before it, the court
turned to consider the state’s two alternative proposals
for interpreting the disputed element.
As for the state’s initial proposal, that the phrase ‘‘not
in plain view’’ should be interpreted to mean not in the
view of the camera, the court first noted that the statute
makes no reference to cameras or other recording
devices. This, it concluded, is appropriate because ‘‘the
word ‘view’ typically means the view of a person,’’ not
the view to or from a recording device. The court found
support for this conclusion in the legislature’s use of
the phrase ‘‘not in plain view’’ in the disorderly conduct
statute, General Statutes § 53a-182 (a) (7), in which in
2001, just two years after enacting the video voyeurism
statute, it made ‘‘Peeping Tom’’ behavior punishable as
a form of disorderly conduct. The conduct prohibited
by § 53a-182 (a) (7) involves observing another person
in other than a casual or a cursory manner, while com-
mitting a simple trespass, in the following circum-
stances: without the other person’s knowledge and
consent, while the other person is inside a dwelling and
not in plain view, and where the other person has a
reasonable expectation of privacy. The court found that
the phrase ‘‘not in plain view,’’ as used in that statute
to describe a circumstance under which a defendant
must have engaged in a particular type of surreptitious
observational behavior in order to commit disorderly
conduct, ‘‘clearly pertains to the view of a person
. . . .’’ It pertains, more particularly, to the view of the
defendant as the person alleged to have engaged in
such surreptitious observational behavior. The court
found that this usage is ‘‘plainly inconsistent’’ with the
state’s proposed interpretation of the same language in
this case ‘‘that the ‘view’ in question is that of a camera
or recording device . . . .’’ ‘‘When,’’ the court con-
cluded, ‘‘the legislature has used identical language to
address very similar concerns and at virtually the same
point in time, this court is reluctant to accord very
different meanings to identical phrases.’’
As for the state’s second proposal, that the phrase
‘‘not in plain view’’ might alternatively be interpreted
to mean ‘‘not in public view,’’ the court rejected that
proposal based upon the common-law principle that
‘‘[n]o part of a legislative enactment is to be treated as
insignificant or unnecessary, and there is a presumption
of purpose behind every sentence, clause or phrase
[such that] no word in a statute is to be treated as
superfluous.’’ It found, more specifically, that the state’s
fallback proposal for interpreting the disputed element
would render superfluous the fourth essential element
of voyeurism, which, to reiterate, requires proof that
the defendant recorded the complainant’s image ‘‘under
circumstances where [she] ha[d] a reasonable expecta-
tion of privacy.’’ Impliedly construing the term ‘‘reason-
able expectation of privacy’’ in accordance with its
settled meaning under controlling federal case law
enforcing the fourth and fourteenth amendment right
against unreasonable searches and seizures, the court
concluded that under the statute, as under such federal
case law, a person has no privacy interest in, and thus
no reasonable expectation of privacy as to, any aspect
of her person, property or activities which she know-
ingly exposes to public view. See Katz v. United States,
389 U.S. 347, 360, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)
(Harlan, J., concurring). On that basis, the court con-
cluded that the ‘‘not in plain view’’ element of voyeurism
cannot appropriately be interpreted to require proof
that the defendant recorded the complainant’s image
while she was ‘‘not in public view,’’ for if it were so
interpreted, both it and the ‘‘reasonable expectation of
privacy’’ element of that offense would improperly be
deemed to have the same core meaning, to wit: that
the defendant recorded the complainant’s image while
she was ‘‘not in public view.’’ The court thus agreed
with the defendant that the ‘‘not in plain view’’ element
of voyeurism cannot mean that the complainant was
‘‘not in public view’’ when the defendant recorded her
image, but instead must mean that she was ‘‘not in plain
view of the defendant’’ at that time. (Emphasis added.)
Finally, the court found support for its conclusion
that the perspective from which the ‘‘not in plain view’’
element of the statute must be evaluated is that of the
defendant in the name and nature of the conduct which
the statute seeks to criminalize. Dictionaries define
‘‘voyeurism,’’ the court noted, as ‘‘ ‘[g]ratification
derived from observing the sexual organs or acts of
others, usu[ally] secretly.’ ’’ Voyeurism thus inherently
involves the surreptitious invasion of another person’s
privacy by secretly observing her. By requiring proof
that the complainant was not in the defendant’s plain
view at the time he recorded her image, the video
voyeurism statute restricts the scope of liability for
voyeurism to conduct that is fairly describable as voy-
euristic because it involves or results from secretly,
rather than openly and obviously, recording the image
of the complainant under circumstances constituting
an invasion of her privacy.
Applying the foregoing definition of ‘‘plain view’’ to
the allegations set forth in the defendant’s arrest war-
rant affidavit, and thus by stipulation in the three chal-
lenged informations, the court concluded that the state
had ‘‘fail[ed] to state any factual basis on which . . .
the crimes alleged . . . occurred while the subjects of
the depictions were not in plain view of the defendant
. . . .’’ The court thus dismissed the three informations
on the ground of failure by the state to charge the
defendant with an offense. This appeal followed.
I
The state has raised a single claim of error on this
appeal. It claims, expressly, that ‘‘the trial court erred
in construing the term ‘not in plain view’ in . . . § 53a-
189a to mean not in the defendant’s plain view and in
granting his motion to dismiss because the victims were
in his sight when he surreptitiously photographed and/
or videotaped them having sex with him.’’
‘‘The requirements of the statute present a question of
statutory construction over which we exercise plenary
review. . . . When construing a statute, our fundamen-
tal objective is to ascertain and give effect to the appar-
ent intent of the legislature. . . . [General Statutes]
§ 1–2z directs us first to consider 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, extratex-
tual evidence of the meaning of the statute shall not
be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretative 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 . . . . The test to determine ambiguity
is whether the statute, when read in context, is suscepti-
ble to more than one reasonable interpretation. . . .
We presume that the legislature did not intend to enact
meaningless provisions. . . . [S]tatutes must be con-
strued, if possible, such that no clause, sentence or
word shall be superfluous, void or insignificant . . . .
‘‘[W]hen the statute being construed is a criminal
statute, it must be construed strictly against the state
and in favor of the accused. . . . [C]riminal statutes
[thus] are not to be read more broadly than their lan-
guage plainly requires and ambiguities are ordinarily to
be resolved in favor of the defendant. . . . Rather,
penal statutes are to be construed strictly and not
extended by implication to create liability which no
language of the act purports to create. . . . Further,
if, after interpreting a penal provision, there remains
any ambiguity regarding the legislature’s intent, the rule
of lenity applies. It is a fundamental tenet of our law
to resolve doubts in the enforcement of a [P]enal [C]ode
against the imposition of a harsher punishment.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Drupals, 306 Conn. 149, 159–160, 49 A.3d 962 (2012).
The state argues on appeal that that phrase ‘‘not in
plain view,’’ as used in the statute, is ambiguous, and
thus that the statute must be construed in light of its
legislative history, the circumstances surrounding its
enactment, the legislative policy it was designed to
implement and other accepted tools of statutory con-
struction. Although the state acknowledges that one
reasonable interpretation of the disputed element is
‘‘not in plain view of the defendant,’’ as the trial court
ruled, it insists that another reasonable interpretation
of the element is one of the two it advanced in opposi-
tion to the motion to dismiss, namely ‘‘not in public
view.’’ The state contends that the latter interpretation
of the disputed element is supported by the comments
of legislators appearing in the statute’s legislative
history.
The defendant disagrees, arguing first, as he did
before the trial court, that the phrase ‘‘not in plain
view’’ need not be construed on the basis of extratextual
evidence because its plain and unambiguous meaning,
as the trial court properly determined, is ‘‘not in plain
view of the defendant.’’ This conclusion, he argues, is
well supported both by the language of the statute and
by the statute’s relationship to other statutes, particu-
larly § 53a-182 (a) (7), where, as the trial court noted,
identical language is used in a similar context to
describe an essential element of a related criminal
offense. The defendant further contends that even if
the language of the disputed element is ambiguous on its
face, and must therefore be construed, the trial court’s
interpretation of that element finds substantial support
in the statute’s legislative history. Even, then, if there
were any ambiguity as to the meaning of that element
after the statute is construed, which he denies, any such
ambiguity would have to be resolved in his favor either
by ruling the statute unconstitutionally void for
vagueness because of its lack of clear meaning or by
construing it in his favor under the rule of lenity, which
in either case would require that the trial court’s judg-
ment be affirmed. We agree with the defendant that the
trial court properly interpreted the disputed element in
light of the plain and unambiguous language of the
statute, and thus conclude that its judgment must be
affirmed.
Looking first, as we must, at the language of the
statute, we note initially that the phrase ‘‘not in plain
view’’ is not defined therein or in any other provision
of the General Statutes. Therefore, in the absence of
controlling case law construing that phrase in this or
any related statutory context, we are directed by Gen-
eral Statutes § 1-1 (a) to construe it ‘‘according to the
commonly approved usage of the language,’’ unless it
has ‘‘acquired a peculiar and appropriate meaning in
the law [and therefore] shall be construed and under-
stood accordingly.’’
In standard English usage, as the trial court noted,
the word ‘‘plain,’’ when used as an adjective, has several
meanings. We find that the most applicable meanings
here are: ‘‘free of impediments to view’’ and ‘‘unob-
structed.’’ Merriam-Webster’s Collegiate Dictionary
(11th Ed. 2003) (available at http://www.merriam-web-
ster.com). The word ‘‘view,’’ when used as a noun,
means ‘‘the extent or range of vision’’ or ‘‘the act of
seeing or examining.’’ Id. Both of these possible mean-
ings, as the trial court observed, ‘‘suggest that the act
of viewing is being performed by a person.’’
Combining these definitions together, and applying
them to the view of one person by another, the person
being observed by another person is ‘‘in plain view’’ of
the other person when she is so situated that the other
person can readily or easily view her from his vantage
point, without impediments or obstructions to his view.
The trial court reached a similar conclusion,
determining that ‘‘ ‘plain view’ means that which can
be readily observed from a certain vantage point with-
out the benefit of any special effort or aid being utilized
to view an object.’’ It added, however, that ‘‘[t]he term
suggests the absence of any trickery, artifice, or device
being used in the viewing process such that the view
in question is reasonably evident to a person being
photographed.’’ The court declared that this latter
aspect of ‘‘plain view’’—that ‘‘the view of the defendant
. . . be open and obvious to [the complainant]’’ at the
time he records her image—is ‘‘an inherent part of ‘plain
view’ ’’ under the video voyeurism statute. It based this
conclusion not only on selected dictionary definitions
of the words ‘‘plain’’ and ‘‘view,’’ as previously noted,
but on what it described as the compatibility of ‘‘[t]his
understanding of the phrase [‘in plain view’] . . . with
its more common use in the context of search and
seizure cases in criminal actions,’’ as well as its consis-
tency with the statute’s use of the word ‘‘voyeurism’’
to describe the conduct made punishable thereunder.
The state contends in its brief that the latter conclu-
sion placed an unnecessary judicial gloss on the ‘‘not
in plain view’’ element of voyeurism, demonstrating that
the statute is ambiguous on its face, and thus in need
of construction. Although we have doubts as to whether
this aspect of the trial court’s interpretation of the dis-
puted element is compelled by the plain language of
the statute, we agree with the state that that issue need
not have been addressed by the trial court and need
not be resolved by this court to decide the narrower
question raised by the defendant’s motion and pre-
sented for our decision on appeal. That question, to
reiterate, is from whose perspective must it be deter-
mined if the complainant in a voyeurism prosecution
was ‘‘not in plain view’’ at the time the defendant
recorded her image without her knowledge and
consent?
Refocusing on that narrower question, we must first
agree with the state that the text of the statute does
not answer the question directly. That is, although the
statute’s use of the word ‘‘view’’ connotes the view of
a person, it does not state whether the person whose
view of the complainant must not have been a plain
view was the defendant himself or some other person,
such as a member of the general public. Its silence on
that point, however, does not make this aspect of the
disputed element ambiguous, for several reasons.
First and foremost, as the trial court ruled, the dis-
puted element cannot be interpreted to mean ‘‘not in
public view,’’ as the state has argued, because the paral-
lel, ‘‘reasonable expectation of privacy’’ element of the
statute imposes that very same restriction on the scope
of liability thereunder. As the trial court implicitly
acknowledged, the term ‘‘reasonable expectation of pri-
vacy’’ has acquired a settled meaning under our consti-
tutional law of search and seizure, which the legislature
logically had in mind when it used that term to describe
the fourth essential element of voyeurism. For over
three decades before the statute was enacted, the
United States Supreme Court had held that a criminal
defendant can challenge, as an unreasonable search or
seizure in alleged violation of his rights under the fourth
and fourteenth amendments, any intrusion by agents
of the government as to an aspect of his person, his
property or his activities as to which, at the time of
such intrusion, he had an actual expectation of privacy
that society is prepared to regard as reasonable. Katz
v. United States, supra, 389 U.S. 361. An actual expecta-
tion of privacy is subjective; a defendant has such an
expectation of privacy as to those aspects of his person,
property and activities which he actually believes to be
free from governmental intrusion. See id. A reasonable
expectation of privacy, on the other hand, is objective;
its existence in particular circumstances depends upon
the manner in which the person has attempted, in those
circumstances, to keep private those aspects of his per-
son, property or activities which he claims to have been
intruded upon by the government. See id.
Whereas a person is typically held to have a reason-
able expectation of privacy as to those aspects of his
person, property or activities which he has made rea-
sonable efforts to keep private, he is universally held
not to have no reasonable expectation of privacy as to
those aspects of his person, property or activities which
he knowingly exposes to public view. Id. Therefore,
since an essential element of the state’s proof of the
‘‘reasonable expectation of privacy’’ element of voyeur-
ism is that at the time the complainant’s image was
recorded, she was not knowingly exposing those parts
or aspects of herself of which an image was being
recorded to public view, that same meaning cannot
appropriately be attributed to the parallel, ‘‘not in plain
view’’ element of the statute. Here, then, we agree with
the trial court that because the video voyeurism statute
concerns conduct involving two and only two persons,
the complainant whose image was allegedly recorded
without her knowledge and consent and the defendant
who allegedly recorded that image of her when she was
not in plain view, it must logically be the defendant as
to whom the complainant was not in plain view when
her image was recorded, for she will always have been
in plain view of herself.
Secondly, the foregoing interpretation of the disputed
element is consistent with the settled meaning of the
phrase ‘‘in plain view’’ under controlling federal case
law enforcing the plain view exception to the warrant
requirement of the fourth and fourteenth amendments.
Under such case law, a state or federal officer is author-
ized to make a warrantless seizure of any item he finds
‘‘in plain view’’ while lawfully performing his duties if
it is immediately apparent to him, upon viewing the
item without touching or manipulating it except as
authorized by law, that it is lawfully subject to seizure.
See Arizona v. Hicks, 480 U.S. 321, 323–27, 107 S. Ct.
1149, 94 L. Ed. 2d 347 (1987). An item is lawfully subject
to seizure if, for example, it constitutes the fruits, evi-
dence or instrumentality of a crime; Warden v. Hayden,
387 U.S. 294, 310, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967);
it is contraband or it poses a danger to the public; Cady
v. Dombrowski, 413 U.S. 433, 441–43, 93 S. Ct. 2523, 37
L. Ed. 2d 706 (1973); or it is subject to seizure under
the authority of a statute. See Michigan v. Tyler, 436
U.S. 499, 509–10, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978).
It is immediately apparent to an officer that an item is
lawfully subject to seizure if the officer has probable
cause to believe that it is such an item. Horton v. Cali-
fornia, supra, 496 U.S. 136. An officer is lawfully per-
forming his duties when he comes upon an item lawfully
subject to seizure if he has the right to be where he is
and to be doing what he is doing at that time, under
the authority of a warrant, an exception to the warrant
requirement or otherwise. Coolidge v. New Hampshire,
403 U.S. 443, 465–66, 91 S. Ct. 2022, 29 L. Ed. 2d 564
(1971). Finally, and of direct relevance here, an item is
‘‘in plain view’’ of the officer when he comes upon it
if it is so situated in relation to him as to be readily
observable by him, as he finds it, without the aid of
advanced technological enhancements to vision that
are not in general public use. Compare State v. Dick-
erson, 313 N.W.2d 526, 532 (Iowa 1981) (use of binocu-
lars to observe, or standard photographic equipment to
preserve a photographic record of, items come upon
by officers while lawfully performing their duties held
justified under the plain view exception to the warrant
requirement of the fourth and fourteenth amendments)
with United States v. Epperson, 454 F.2d 769, 770 (4th
Cir.) (use of magnetometer to detect metal in or below
the clothing of a person in plain view is not justified
under the plain view exception because it constitutes
a separate invasion of the searchee’s privacy, for which
a warrant is required), cert. denied, 406 U.S. 947, 92 S.
Ct. 2050, 32 L. Ed. 2d 334 (1972); see also Kyllo v. United
States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94
(2001). The rationale for imposing this limitation on the
power of officers to make warrantless seizures of items
they find in plain view while lawfully performing their
duties is to protect the privacy interests of persons who,
by exposing themselves or their property to observation
by others in what they reasonably believe to be a limited
manner, cannot reasonably be found to have surrend-
ered their right not to have such items viewed more
extensively or intensively than they reasonably
expected when so exposing them by the unexpected
use of such uncommon vision-enhancing devices or
equipment. Even with this adjustment in meaning, how-
ever, it is clear that the perspective from which it must
be determined if an item was ‘‘in plain view’’ at the time
the officer came upon it is that of the officer himself,
who must have viewed it without moving or manipulat-
ing it or using uncommon vision-enhancing equipment
to examine it before seizing it.
Thirdly, we find that this interpretation of the statute
is confirmed, by necessary implication, by the nature
of the conduct that is made punishable thereunder.
Voyeurism, as the trial court aptly described it in light
of its standard dictionary definition, is the practice of
obtaining sexual gratification by looking at sexual
objects or acts, especially secretively. Voyeuristic
behavior thus inherently involves the surreptitious inva-
sion of another person’s privacy, usually by secretly
viewing the other person while she is engaged in sexual
or other intimate behavior. Although the term ‘‘voyeur-
ism’’ is not specially defined in the video voyeurism
statute apart from the listing of the elements of the
offense so denominated, its use in the statute gives
meaning to those elements as the ultimate facts that
must be proved to obtain a conviction for that offense.
Consistent with its name, the offense of voyeurism
requires proof of conduct that involves or constitutes
an aggravated form of voyeurism. The conduct pro-
scribed by the statute is voyeuristic because it involves
not only the secret recording of the complainant’s image
without her knowledge and consent, but the making of
that recording under circumstances involving or consti-
tuting an invasion of her privacy by recording images
of parts or aspects of her person which she has made
reasonable efforts not to expose to public view. Such
voyeuristic conduct is aggravated both because it pre-
serves the image so recorded in storable, publishable
and/or transferable form, exposing the complainant to
possible future victimization by repeated viewings of
her recorded image by the defendant and others, and
because the defendant made that recording either with
malice, in violation of subsection (a) (1) of § 53a-189a,
or for the purpose of arousing or gratifying the defen-
dant’s or another person’s sexual desire, in violation of
subsection (a) (2) of § 53a-189a. Although only subsec-
tion (a) (2) expressly prohibits conduct that falls within
the classic definition of voyeurism, because it alone
requires proof that the defendant engaged in the prohib-
ited conduct for the purpose of arousing his or another
person’s sexual desire, both subdivisions (1) and (2)
criminalize behavior which, in light of the circum-
stances under which it must be engaged in, involves or
constitutes the surreptitious invasion of the complain-
ant’s privacy.
Understood in this light, the ‘‘not in plain view’’ ele-
ment of voyeurism must logically be construed, like the
other two circumstances elements of that offense, as
a requirement designed to restrict the scope of liability
under the statute to inherently voyeuristic behavior
involving or constituting the surreptitious invasion of
the complainant’s privacy. That interpretation makes
sense only if the perspective from which the plain view
of the complainant must be evaluated is that of the
defendant, as the alleged voyeur. Although, to reiterate,
we need not here determine if liability for voyeurism can
ever be established without proving that the defendant’s
opportunity to view the complainant, while surrepti-
tiously recording her image, was reasonably evident to
her, establishing that the complainant was not in the
defendant’s plain view when he recorded her image
tends to confirm that his act of recording her image,
without her knowledge and consent, was performed
secretly, and thus voyeuristically. If, by contrast, the
defendant recorded the complainant’s image while she
was in his plain view, then she would have been far
more likely to see him as he did so, making his act of
viewing her while he recorded her image nonsecretive
and nonvoyeuristic, even though his unconsented-to act
of recording of what he then viewed of her was not.
Fourth and finally, we agree with the defendant that
his interpretation of the ‘‘not in plain view’’ element of
the statute is supported by the use of the phrase ‘‘not
in plain view’’ in the ‘‘Peeping Tom’’ subsection of the
disorderly conduct statute. By using such language to
define an essential circumstances element of another
statute of comparable vintage that prohibits a similar
kind of voyeuristic behavior, the legislature clearly sig-
naled its intention that under both statutes, the perspec-
tive from which it must be determined if the
complainant was ‘‘in plain view’’ at the time the defen-
dant engaged in such behavior toward her is that of the
defendant, as the alleged voyeur.
In sum, we agree with the trial court’s determination
that, under the plain and unambiguous language of the
video voyeurism statute, the perspective from which
the ‘‘not in plain view’’ element of voyeurism must be
evaluated is that of the defendant, not that of the gen-
eral public.
II
In light of the foregoing analysis, we have no need
to consider the legislative history of the statute, much
less to determine if, in light of that history, there might
be other reasonable interpretations of the legislature’s
intent as to the meaning of the ‘‘not in plain view’’
element that were not expressed in the plain and unam-
biguous language of the statute. For that same reason,
we have no occasion to decide, even if evidence sup-
porting such an alternative construction of the disputed
element could be found, whether the existence of such
a construction renders the statute void for vagueness,
and thus unenforceable, or requires the application of
the rule of lenity. The words of the statute control, and
that ends our inquiry.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the crime defined in the statute is denominated ‘‘voyeurism,’’
the statute itself is known colloquially as the ‘‘video voyeurism statute.’’
2
The state and the defendant further stipulated that the unconsented-to
photographs of the other two complainants showed them in a state of
undress when they were in the defendant’s immediate physical presence.
3
Although the state initially objected to the defendant’s motion to dismiss
under Practice Book § 41-9, on the ground that the defendant had been
arrested on a warrant, it ultimately agreed to proceed with the defendant’s
motion and has not renewed its initial objection on appeal.
4
Practice Book § 41-8 provides in relevant part: ‘‘The following defenses
or objections, if capable of determination without a trial of the general issue,
shall, if made prior to trial, be raised by a motion to dismiss the information
. . . (2) Defects in the information including failure to charge an offense
. . . .’’