Gary v. the State
338 Ga. App. 403
Ga. Ct. App.2016Background
- Gary, a Publix employee, used his cell phone to record video under a female customer’s skirt at least four times while she shopped; security video corroborated the conduct and Gary admitted it.
- A grand jury indicted Gary for “Unlawful Eavesdropping and Surveillance”; the State proceeded under OCGA § 16-11-62(2) (Invasions of Privacy Act).
- Subsection (2) criminalizes use of a device “to observe, photograph, or record the activities of another which occur in any private place and out of public view.”
- Gary moved to quash, arguing the victim’s activities occurred in a public place (a grocery store) and thus were not covered; the trial court denied the motion, convicted Gary after a bench trial, and denied his motion for new trial.
- On appeal the parties stipulated to the facts; the sole question was statutory interpretation of “private place” in OCGA § 16-11-62(2).
- The majority reversed, holding the statute requires the recorded activities to occur in a physical location out of public view (a "place"), not merely a concealed area of a person’s body; thus the indictment and proof were deficient.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Gary) | Held |
|---|---|---|---|
| Whether OCGA § 16-11-62(2)’s term “private place” can include a particular region of a person’s body (e.g., under a skirt) | “Private place” covers body areas concealed by clothing where one reasonably expects privacy; upskirt recording falls within subsection (2) | “Private place” means a physical location out of public view (e.g., a home); filming someone in a public store is not covered | Court held “private place” refers to a physical location out of public view, not a body region; statute does not reach upskirting in a public store; reversal required |
| Whether the indictment and evidence were sufficient to sustain a conviction under § 16-11-62(2) | Indictment charging unlawful eavesdropping/surveillance under subsection (2) suffices because victim’s privacy in concealed body area was invaded | Indictment failed to allege that the recorded activities occurred in a private place; evidence showed the conduct occurred in a public store | Court held indictment and evidence failed to allege/prove that the recorded activities occurred in a private place and out of public view; conviction reversed |
Key Cases Cited
- Chan v. Ellis, 296 Ga. 838 (statutory meaning derives from text)
- Deal v. Coleman, 294 Ga. 170 (presume legislature meant what it said; construe statutory text in its plain meaning)
- Zaldivar v. Prickett, 297 Ga. 589 (statutory words judged by their context; identical words in same act have same meaning)
- Pruitt v. State, 227 Ga. (1971) (place open to the public is not a private place under invasion-of-privacy law)
- Perkins v. State, 277 Ga. 323 (criminal statutes construed strictly against the State)
- Richardson v. State, 276 Ga. 639 (courts cannot judicially amend clear statutory language)