Criminal Law Blog

DCCA: The floor of a public restroom may be a "hidden observation post" for purposes of attempted voyeurism.



Valenzuela-Castillo v. United States (decided March 8, 2010)

Players: Associate Judges Thompson and Easterly and Senior Judge Farrell. Opinion for the Court by Judge Farrell. Dissenting Opinion by Judge Easterly. Karl R. Tetzlaff for Appellant. Trial Judge Patricia Broderick.

Facts: Following a bench trial, appellant was found guilty of attempted voyeurism. Viewed in a light most favorable to the conviction, the evidence showed that the complainant encountered appellant on the way to the women’s restroom in a restaurant sometime after midnight. Appellant was leaving the men’s restroom with a broom and dustpan. The complainant had just finished eating, and the restaurant had few other customers. Surveillance footage showed appellant looking at the complainant as she went in the women’s restroom.

The restroom was unoccupied. It contained multiple stalls separated by floor-to-ceiling partitions. The stall doors were approximately one foot off of the ground. The complainant occupied the last stall. After she had been in there for some time, she got an uneasy feeling, looked down, and saw appellant’s face under the door. She had not heard him knock or enter. Upon seeing him, she screamed and cursed and told him to leave. He got up and ran out, saying nothing. The trial court found appellant guilty of attempted voyeurism by apparent reference to statutory provision making it illegal “to occupy a hidden observation post . . . for the purpose of secretly or surreptitiously observing an individual who is . . . [u]sing a bathroom or rest room.”

Issue: Did appellant attempt to “occupy a hidden observation post” within the meaning of the voyeurism statute?

Holding: Yes. Although the statute does not define “hidden observation post,” appellant occupied such a post “by any common-sense understanding” because he “staged his behavior” to avoid detection: he “checked to see that no one was near the rest room, then silently entered it, dropped to the ground, and positioned his head sideways near the floor to look under the door in a way calculated not to draw attention.” Black’s Law Dictionary defines “observation post,” for military purposes, as any “position” from which a target can be watched. This broad definition is consistent with the intent expressed by the Mayor to the City Council before the statute was passed. Contrary to appellant’s argument, this definition would not include nearly all public areas because it is based on the steps appellant took, albeit ineffectively, to ensure that his vantage point was “private.” The dissent’s argument that appellant was engaged in simple invasive viewing likewise ignores these steps.

Dissent: No. The bathroom floor was not a “hidden observation post” because it allowed appellant to be seen by the complainant and anyone who came in the bathroom. The majority’s attempt to read “hidden observation post” to cover this circumstance ignores that simple invasive viewing was already prohibited by the disorderly conduct statute when the Council passed the voyeurism statute. The Council’s intent in creating a separate voyeurism offense was to punish conduct that went beyond simple invasive viewing, such as the use of surveillance devices or specialized “hidden observation posts.” Although the Council later redefined disorderly conduct to exclude simple invasive viewing, the Court cannot use voyeurism to fill the resulting gap. The majority’s interpretation of “observation post” to mean body positioning is inconsistent with the common definition of “post” as a fixed location and risks punishing innocent activity, such as looking under a stall to ensure it is unoccupied.

Of Note:
The Court has held that “conduct[] designed to enable appellant to observe the victim while himself unseen [may meet] the statutory requirement that [the defendant] occupy a hidden observation post,” or, in any case, that the requirement he attempt to do so. Whether such conduct exists in a given case is a fact-specific inquiry. WC.

Read the full opinion here.