No. 48698-5-I.The Court of Appeals of Washington, Division One.
Filed: April 22, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 011005932, Hon. Anthony P. Wartnik, June 8, 2001, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Nancy P. Collins, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Zachary C. Wagnild, Ste W554, 516 3rd Ave, Seattle, WA 98104-2312.
PER CURIAM.
Scott Avilla appeals his conviction and sentence for voyeurism. He contends there was insufficient evidence to support his conviction because the victim did not have a reasonable expectation of privacy when the incident occurred and because there was no evidence showing that he was actually able to see the victim. He also maintains that the trial court erroneously sentenced him to a two-year term of community custody. Because we conclude the evidence was sufficient to support the guilty verdict, we affirm the conviction. However, we remand the case for resentencing because under RCW 9.94A.383, the trial court was only authorized to impose up to one year of community custody.
FACTS
On the evening of December 29, 2000, Julie Ives went out with a friend and returned home to her studio apartment between 10:00 and 11:00 p.m. Shortly after arriving home, she changed her clothes, turned out the lights, and got into bed. About 10 minutes later, she heard a `pretty loud’ male voice making moaning sounds outside the window at the head of her bed. She called her friend, Christopher Paradiso, and asked him to come over. After that, she called the police. Paradiso, who lived just two blocks away from Ives, stated that as he approached Ives’ apartment, he saw Avilla with his pants around his ankles, `fondling himself and looking into the window.’ When Paradiso yelled at him, Avilla pulled his pants up and said, `I’m not doing anything wrong. . . .’ When Avilla tried to leave the scene, Paradiso approached him, splashing hot tea in his face and striking him. After a struggle, Paradiso pushed Avilla into a chair and held him there while he called the police on his cell phone. The police arrived within minutes and arrested Avilla.
Ives testified that the blinds in the window at the head of her bed were shut and `turned up, but not perfectly,’ at the time of the incident. The next day, she and a police officer looked in the window from outside and realized that there was a small gap between the bottom of the blinds and the window sill through which a person could see into Ives’ apartment. Ives also noticed that even if the blinds were closed, a person could see inside the window through the cracks between the blinds. After a jury trial, Avilla was convicted of voyeurism under RCW 9A.44.115(2). He was sentenced to 40 days in jail with credit for time served and 24 months of community custody. This appeal followed.
DISCUSSION I. SUFFICIENCY OF THE EVIDENCE
In a criminal case, the State bears the burden of proving every element of the charged crime beyond a reasonable doubt.[1] On appeal, evidence is sufficient to sustain a conviction when, viewed in the light most favorable to the State, a rational trier of fact could find each element of the crime beyond a reasonable doubt.[2] Therefore, in reviewing Avilla’s challenge to the sufficiency of the evidence, we presume the truth of the State’s evidence and all inferences that the jury could reasonably draw from it.[3]
A person commits the crime of voyeurism in Washington when he or she knowingly views another person without his or her knowledge or consent and the viewing is done: (1) `for the purpose of arousing or gratifying the sexual desire of any person’; and (2) when the person being viewed is `in a place where he or she would have a reasonable expectation of privacy.’[4]
A. Reasonable Expectation of Privacy
Avilla first argues that the State failed to prove that at the time of the incident, Ives was in a place where she had a reasonable expectation of privacy. The statute defines a place where one would have a reasonable expectation of privacy as either `[a] place where a reasonable person would believe that he or she could disrobe in privacy, without being concerned that his or her undressing was being photographed or filmed by another’ or `[a] place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance.’[5]
In determining whether Ives had a reasonable expectation of privacy, we consider both whether she exhibited a subjective expectation of privacy and whether `that expectation is one that society is prepared to recognize as reasonable.’[6] Avilla does not dispute that Ives had a subjective expectation of privacy. Therefore, we need only decide whether Ives’ expectation of privacy was objectively reasonable. Division Three of this court recently stated that `places such as bathrooms, bedrooms, changing rooms, [and] tanning booths’ fall within the scope of the `private’ places protected by the voyeurism statute.[7] Avilla contends that even though Ives was in her bedroom at the time of the incident, she did not have a reasonable expectation of privacy under the statute because her apartment was accessible to public view. Avilla points to several cases analyzing the concept of a reasonable expectation of privacy in the context of the fourth amendment’s prohibition on unreasonable searches and seizures.
We have long recognized that a person’s `home is, for most purposes, a place where [one] expects privacy, but objects, activities, or statements that [one] exposes to the `plain view’ of outsiders are not `protected’ because no intention to keep them to [one]self has been exhibited.’[8]
In arguing that Ives lacked a reasonable expectation of privacy, Avilla relies on State v. Brown.[9] In that case, Seattle police officers, following a lead from the Portland Police Department, knocked on the door to the defendant’s motel room and identified themselves as police officers.
We held the defendant `lost the reasonable expectation of privacy’ when he opened the motel curtains, knowing the officers were outside, and then `negligently fail[ed] to close them completely,’ enabling the officers to view his activities through the window.[10]
This case is distinguishable from Brown in two important respects. First, unlike the defendant in Brown, Ives did not fail to close her window blinds at all. She believed they were closed completely. Second, unlike the officers in Brown, Avilla did not have legitimate reason for being on the premises in the first place.
The other cases Avilla cites are similarly off point. For example, in State v. Drumhiller,[11] we held the defendants did not have a reasonable expectation of privacy when the police officers `were legitimately on the premises investigating a reported potential burglary’ and the defendants `positioned themselves in front of a picture window with the lights on and the drapes open from 4 to 6 feet.’[12] This case is manifestly different from Drumhiller and the other cases Avilla relies on because Ives did not knowingly expose herself to the public and Avilla had no legitimate business reason for being on the premises.[13]
This case is more analogous to Lorenzana v. Superior Court,[14] where a California court held that a police officer unlawfully intruded on the defendant’s reasonable expectation of privacy. There, the officer approached the side of the defendant’s house for the express purpose of looking in the defendant’s window.[15] The officer peered inside, placing his face within one inch of the window.[16] Although the defendant had closed the curtains, the officer could see in through a two-inch gap between the shade and the window sill.[17] The court reasoned, The fact that apertures existed in the window, so that an unlawfully intruding individual so motivated could spy into the residence, does not dispel the reasonableness of the occupants’ expectation of privacy. . . . To the contrary, the facts of this case demonstrate that by drawing the window shade petitioner Lorenzana exhibited a reasonable expectation to be free from surveillance conducted from a vantage point in the surrounding property not open to public or common use. Surely our state and federal Constitutions and the cases interpreting them foreclose a regression into an Orwellian society in which a citizen, in order to preserve a modicum of privacy, would be compelled to encase himself in a light-tight, air-proof box. . . .[18]
This rationale applies with equal force here. Ives had closed her blinds and turned them up, demonstrating that she reasonably expected privacy in her bedroom. Her expectation did not become unreasonable because a person standing right outside the window, without any legitimate reason for being there, could see through a small gap between the blinds and the window sill. We therefore conclude that there is sufficient evidence in the record showing that Ives had a reasonable expectation of privacy at the time the incident occurred.
B. Intentional Viewing of Another Person
Avilla next argues there was insufficient evidence showing that he actually viewed Ives in her apartment. We must determine whether the State presented evidence such that a rational trier of fact could have found beyond a reasonable doubt that Avilla intentionally viewed another person `for more than a brief period of time, in other than a casual or cursory manner.’[19] `In rendering a guilty verdict, a trier of fact properly may rely on circumstantial evidence alone, even if it is also consistent with the hypothesis of innocence. . . .’[20]
The evidence in this case clearly supports a reasonable inference that Avilla viewed Ives in a manner which violated the voyeurism statute. Avilla points out that the State did not offer direct evidence about what could be seen through Ives’ window at night while the lights in her apartment were turned off. However, Paradiso testified that he saw Avilla `peering in’ Ives’ window while Ives was in her apartment. He also testified that Avilla’s pants were down, and that he appeared to be masturbating. And, Ives testified that even when the lights in her apartment are turned off, lights outside her windows come in through the blinds, illuminating her apartment. This testimony supports a reasonable inference that Avilla knowingly viewed Ives `for more than a brief period of time, in other than a casual or cursory manner.’[21]
Accordingly, we reject Avilla’s challenge to the sufficiency of the evidence.
II. SENTENCING
Avilla next argues the trial court erred when it imposed a two-year term of community custody at sentencing. Avilla received a sentence of 40 days in county jail. RCW 9.94A.383 authorizes the court to impose up to one year of community custody on all sentences of confinement for one year or less. The State properly concedes that under this provision, the trial court was not authorized to impose two years of community custody on Avilla.
The judgment is affirmed, but the case is remanded for resentencing consistent with RCW 9.94A.383.
(1974).
(1984).
(1975) (no reasonable expectation of privacy where police observation was made without physical trespass and defendants’ windows had no curtains at all); State v. Chiles, 53 Wn. App. 452, 453, 767 P.2d 597 (1989) (defendant’s actions deemed to have occurred in public when he exposed his genitals while standing in front of an uncurtained window in the second story of his home `in such a manner as to be readily observed by pedestrians on the public sidewalk outside the home’).