Gary v. the StateGary v. the State
Lead Opinion
Fоllowing a bench trial at which the parties stipulated to the relevant facts, Brandon Lee Gary was convicted of a single count of criminal invasion of privacy, in violation of
The undisputed facts show that while employed at a Houston County Publix store, Gary aimed his cell phone camera underneath the skirt of the victim and recorded video. Film from the store’s security cameras showed that Gary aimed his camera underneath the victim’s skirt at least four times as the victim walked and shopped in the aislеs of the Publix. When questioned by police, Gary admitted to using his cell phone to take video recordings underneath the victim’s skirt as she walked in two separate areas of the store.
A grand jury indicted Gary on a single count of “Unlawful Eavesdropping and Surveillance,” with the indictment alleging that Gary’s admitted conduct “did invade the privacy of the victim.” Although the indictment did not identify the specific statute Gary allegedly violated, the State has always maintained that the indictment charged Gary with violating
The case then proceeded to a bench trial, at which the State presented both the facts stipulated to by the parties and video from the store’s security cameras, which showed Gary engaging in the conduct at issue. The trial court denied Gary’s motion for a directed vеrdict, and in doing so, indicated that the court was reading
Following his conviction, Gary filed a motion for a new trial, again challenging the denial of his motion to quash the indictment and arguing that the evidence failed to show that he had engaged in any conduct which violated
1. Each of Gary’s first four enumerations of error turns on whether
The answer to this question necessarily must begin with the language of
As noted above, the statutory provision at issue makes it illegal “to observe, photograph, or record the activities of another which occur in any private place and out of public view [.] ” The dispute in this case centers on how we should read the term “private place.” Specificаlly, the question is whether, reading
When looking fоr the generally understood or common meaning of a particular word, courts most often look to dictionary definitions. See, e.g., Abdel-Samed, v. Dailey,
Given these arguably conflicting definitions of “place,” we must examine the context in which
Additionally, to understand the context in which “private place” appears, we must look at “other provisions of the same statute.” May v. State,
especially [must] inform our consideration of what is meant by [“private plаce”] in subsection [(2)]. After all, “there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning.” Atlantic Cleaners & [Dyers] Inc. v. United States,286 U. S. 427 , 433 (52 SCt 607 , 76 LE 1204) (1932) (citation omitted).
Zaldivar,
The foregoing analysis makes clear that
In light of the foregoing, the indictment in this case failed to allege, and the State failed to prove at trial, a material element of the crime of invasion of privacy, namely that the recorded activities of the victim occurred in a private plaсe and out of public view. Accordingly, we find that the trial court erred both in denying Gary’s motion to quash the indictment and in finding that there was sufficient evidence to convict Gary of violating
2. Given our holding in Division 1, we need not address Gary’s argument as to the trial court’s alleged error in considering the language of
In closing, we note that it is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct. Unfortunately, there is a gap in Georgia’s criminal statutory scheme, in that our law does not reach all of thе disturbing conduct that has been made possible by ever-advancing technology.
Judgment reversed.
Notes
That statutory subsection provides that it shall be illegal “to commit any other acts of a nature similar to those set out in paragraphs (1) through (6) of this Code section which invade the privacy of another.”
Following Gary’s indictment, the General Assembly amended the Invasions of Privacy Act, and the statute currently defines “private place” as “a place where there is a reasonable expectation of privacy.”
Neither the State’s argument nor the trial court’s holding addresses the statute’s reference to “activities.” Specifically, neither the trial court’s ruling nor the State’s brief identify any activities that were occurring undernеath the victim’s skirt and that were captured on Gary’s surreptitious video. We note, however, that the record contains no evidence of any such activities.
In its brief, the State describes the recorded activities as the victim “getting some milk” and “getting an item off the shelf.”
Notably, the State does not dispute the fact that the victim was filmed while in a public place, acknowledging that “Publix was open to the public.”
The type of conduct in which Gary engaged is so prevalent that it has earned a name: “upskirting.” Seе Zeronda, Street Shootings: Covert Photography and Public Privacy, 63 Vand. L. Rev. 1131, 1132-1133 (2010) (“upskirt photography involves taking pictures of women up their skirts”); Horstmann, Protecting Traditional Privacy Rights in a Brave New Digital World: The Threat Posed by Cellular Phone-Cameras and What States Should Do to Stop It, 111 Penn. St. L. Rev. 739, 739 n. 1 (“ ‘[ujpskirting’ generally refers to the practice of taking unwanted pictures up a woman’s skirt or dress”). Recognizing that existing criminal statutes do not generally reach this conduct, several jurisdictions have enacted voyeurism statutes, which сriminalize the photographing or filming of private areas of an individual’s body without that individual’s consent and “under circumstances in which the individual has a reasonable expectation of privacy!.]”
Dissenting Opinion
dissenting.
I respectfully dissent. At issue in this appeal is whether Gary’s videotaping up the victim’s skirt is a criminal invasion of privacy in violation of
In construing statutes,
we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.
Deal v. Coleman,
While it is fitting for the majority to look to dictionary definitions for guidance on the meaning of the word, the majority has relied on only selective portions of definitions to support its analysis. The majority first cites to the Oxford English Dictionary, which pertinently defines “place” when used as a noun as a
[rjoom, available space ... a space that can be occupied; A battlefield; A particular part or region of space; a physical locality, a locale; a spot, a location ... a region or part of the earth’s surface; A piece or plоt of land; a holding; A particular part of or location in a book or document; A particular*411 area or spot in or on a larger body, structure, or surface; an area on the skin; A dwelling, a house; a person’s home; A particular spot or area inhabited or frequented by people; a city, a town, a village.7
(emphasis supplied).
The majority next turns to Webster’s Dictionary which defines “place” as “Space; room...[;] Aparticular area or locality; region[;] the part of space occupied by a person or thing . I have concerns with the majority’s use of these definitions. While I agree that is certainly one way in which “place” can be used, it is equally clear that “place” may also refer to a part of or location on one’s body. The Oxford English Dictionary includes in its definition of “place,” “[a] particular area or spot in or on a larger body, structure, or surface; an area on the skin.” Merriam-Webster’s Dictionary defines “place” pertinently as “a particular region, center of population, or location; a building, part of a building, or area occupied as a home; a particular part of a surface or body.”
Regardless of what dictionary definition is used, the plain meaning of the word “place” is susceptible to many varied meanings. To read the statute as applying to only one, and one chosen by the judiciary to the exclusion of all others, is troubling. This is particularly true when the definitions are not mutually exclusive, and the statute has no limiting language.
In interpreting statutes we must “presume that the General Assembly meant what it said аnd said what it meant.” In the Interest of L. T.,
The majority posits next that because this stаtute makes it unlawful to “observe, photograph, or record the activities of another which occur in any private place and out of public view,” the statute refers to only the actual location of the person being observed or filmed. This conclusion only follows from the majority’s initial determination about the meaning of the term “private place.” Because I read “private place” to refer to a physical location or an area of an
Therefore, I would find that the plain and unambiguous language of
The majority contends that interpreting “private place” to refer to a particular area of the human body would render subsections (1) and (3) of the statute mere surplusage.
The majority refers to a “gap in Georgia’s criminal statutory scheme,” yet I would argue that no such gap exists. Rather, the majority has in fact created one by judicial fiat. To interpret the statute to make Gary’s conduct illegal does not restrict or broaden the statute in any way, but merely comports with the common meaning and understanding of the word “place” in the English language. Indеed, “private place” is a phrase heard daily in courts across this state, as judges, prosecutors, defense attorneys, psychologists, detectives, and children, to name only a few, use it to describe incidents of
We have decades of Fourth Amendment jurisprudence setting forth limitations on law enforcement’s ability to merely pat down an аlleged suspect on top of their clothing to protect the sacrosanct bodily privacy of even those who are accused of violating criminal laws. But today, with the stroke of a pen, we are in effect negating the privacy protections from the intrusions of fellow citizens afforded to every person in this State because one definition of “place” is afforded more weight than another.
For these reasons I respectfully dissent.
I am authorized to state that Presiding Judge Ellington and Presiding Judge Phipps join in this dissent.
Oxford English Dictionary Third Edition, June 2006, аccessed July 12, 2016 (http://www. oed.com/view/Entry/144864?rskey=hpIYuI&result=l#eid).
The subsections read in relevant part:
It shall be unlawful for: (1) Any person in a clandestine manner intentionally to overhear, transmit, or record or attempt to overhear, transmit, or record the private conversation of another which shall originate in any private place .... (3) Any person to go on or about the premises of another or any private place, except as otherwise provided by law, for the purpose of invading the privacy of others by eavesdropрing upon their conversations or secretly observing their activities Í.1
Brief research indicates that across the state of Georgia individuals have been arrested and indicted for the same or similar conduct alleged in this case. Thus, the commonly understood meaning of the phrase “private place” has until today allowed for no gap in our privacy laws. See Atlanta Journal-Constitution “Cops: Man takes pictures up woman’s skirt in Target” (http://www.ajc.com/news/news/local/cops-man-takes-pictures-up-womans-skirt-in-targe-l/nQXrR/); Atlanta Journal-Constitution “Former Milton store worker accused of taking pictures up customers’ skirts” (http://www.ajc.com/news/news/local/former-milton-store-worker-accused-taking-pictures/nqyCS/); Atlanta Journal-Constitution “Police: Pharmacist caught using phone to peer under customer’s skirt” (http://www.ajc.com/news/news/police-pharmacist-caught-using-phone-to-peer-under/ngkCS/); The Brookhaven Post “Brookhaven Police seek man suspected of taking pictures up woman’s skirt at Publix” (http://brookhavenpost.co/brookhaven-police-seek-man-suspected-of-taking-pictures-up-womans-skirt-at-publix/38042/).