COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Petty
Argued at Salem, Virginia
EARL DUPREE WILSON
OPINION BY
v. Record No. 2783-07-3 JUDGE ELIZABETH A. McCLANAHAN
MARCH 24, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Charles N. Dorsey, Judge
Melissa W. Friedman (Anthony F. Anderson; Anderson &
Friedman, on brief), for appellant.
Leah A. Darron, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
In a bench trial, Earl Dupree Wilson was convicted of attempting to unlawfully
photograph a non-consenting twenty-year-old female’s “intimate parts or undergarments
covering those intimate parts” not visible to the general public, in violation of Code §§ 18.2-27
and 18.2-386.1, a misdemeanor. On appeal, Wilson argues the trial court erred in its
interpretation of Code § 18.2-386.1 by holding that a crime under the statute could occur in a
public place. Wilson also argues the evidence was otherwise insufficient to support his
conviction. For the following reasons, we affirm the conviction.
ANALYSIS
A. Public Place and Expectation of Privacy under Code § 18.2-386.1
Wilson argues that, because the incident occurred in a public place, 1 C.C., the victim, had
no “reasonable expectation of privacy” under the statute, as a matter of law, thus negating an
element of the crime. Code § 18.2-386.1(A).
Code § 18.2-386.1 provides, in relevant part, as follows:
It shall be unlawful for any person to knowingly and
intentionally videotape, photograph, or film any nonconsenting
person or create any videographic or still image record by any
means whatsoever of the nonconsenting person if (i) that person is
totally nude, clad in undergarments, or in a state of undress so as to
expose the genitals, pubic area, buttocks or female breast in a
restroom, dressing room, locker room, hotel room, motel room,
tanning bed, tanning booth, bedroom or other location; or (ii) the
videotape, photograph, film or videographic or still image record is
created by placing the lens or image-gathering component of the
recording device in a position directly beneath or between a
person’s legs for the purpose of capturing an image of the person’s
intimate parts or undergarments covering those intimate parts when
the intimate parts or undergarments would not otherwise be visible
to the general public; and when the circumstances set forth in
clause (i) or (ii) are otherwise such that the person being
videotaped, photographed, filmed or otherwise recorded would
have a reasonable expectation of privacy.
Code § 18.2-386.1(A) (emphasis added).
In support of the argument that the acts proscribed by this statute do not extend to those
committed in a public place, Wilson first contends the locations for illegal activity listed under
subsection A of the statute do not include public places. Second, he contends that, for purposes
of the statute, a targeted victim cannot possess a reasonable expectation of privacy in a public
place. Thus, he concludes that C.C., who was located in a public place when the subject
1
The Commonwealth stipulated at trial that the victim was in a “public place” at the time
of the incident.
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incident occurred, did not have a reasonable expectation of privacy under the statute, as a matter
of law. Because this presents a question of law involving the interpretation of Code
§ 18.2-386.1, we review de novo the trial court’s judgment as to this issue. See
Brown-Fitzgerald v. Commonwealth, 51 Va. App. 232, 235, 656 S.E.2d 422, 423 (2008);
Colbert v. Commonwealth, 47 Va. App. 390, 394, 624 S.E.2d 108, 110 (2006); Rollins v.
Commonwealth, 37 Va. App. 73, 79, 554 S.E.2d 99, 102 (2001).
When interpreting a statute, we are, as always, guided by well established principles.
“‘The proper course [in] all [such] cases is to search out and follow the true intent of the
legislature, and to adopt that sense of the words which harmonizes best with the context, and
promotes in the fullest manner the apparent policy and objects of the legislature.’” Colbert, 47
Va. App. at 394, 624 S.E.2d at 110 (quoting Jones v. Rhea, 130 Va. 345, 372, 107 S.E. 814, 823
(1921)). Furthermore, these principles “‘argue against reading any legislative enactment in a
manner that will make a portion of it useless [or] repetitious.’” Porter v. Commonwealth, 276
Va. 203, 230, 661 S.E.2d 415, 427 (2008) (quoting Jones v. Conwell, 227 Va. 176, 181, 314
S.E.2d 61, 64 (1984)). “On the contrary, . . . every act of the legislature should be read so as to
give reasonable effect to every word and to promote the ability of the enactment to remedy the
mischief at which it is directed.” Jones, 227 Va. at 181, 314 S.E.2d at 64; see Colbert, 47
Va. App. at 395, 624 S.E.2d at 111 (explaining that, when interpreting a statute, “we must keep
in mind ‘the evil sought to be corrected by the legislature’” (quoting Southern Ry. Co. v.
Commonwealth, 205 Va. 114, 117, 135 S.E.2d 160, 164 (1964))).
Guided by these principles, we reject Wilson’s argument that Code § 18.2-386.1 does not
criminalize acts committed against a person in a public place because such a person cannot
possess a reasonable expectation of privacy. Under our construction of the statute, a person
may, in fact, possess a reasonable expectation of privacy when being victimized in public.
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Clauses (i) and (ii) of Code § 18.2-386.1(A) set forth separate and distinct criteria for
establishing whether a crime has been committed under the statute. Clause (i) addresses the
proscribed acts in relation to the location of the victim (i.e., “a restroom, dressing room, locker
room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location”), which
are, no doubt, locations not customarily visible to the general public while in use—even though
some of these locations may be accessible to the general public. Code § 18.2-386.1(A)(i).
Clause (ii), on the other hand, addresses the proscribed acts in relation to a particular
region of the victim’s body, i.e., “beneath or between [the victim’s] legs,” irrespective of
whether the victim was located in a public or private place. Code § 18.2-386.1(A)(ii). The
proviso under clause (ii) is that the victim’s “intimate parts or undergarments covering those
intimate parts,” which may have been visible with a recording device “position[ed] directly
beneath or between the [victim’s] legs,” “would not otherwise [have been] visible to the general
public.” Code § 18.2-386.1(A)(ii) (emphasis added). 2
The Code § 18.2-386.1(A) requirement that the victim otherwise have a “reasonable
expectation of privacy” then follows and is made applicable to both clauses (i) and (ii).
Accordingly, the victim’s reasonable expectation of privacy under clause (ii) is in reference to
the victim’s intimate parts or undergarments covering those intimate parts—not in reference to
the victim’s actual physical location (as in clause (i)). The victim in this case was wearing
clothing covering her undergarments while shopping in a public location. The trial court thus
2
This requirement that the victim’s “intimate parts or undergarments covering those
intimate parts . . . not otherwise be visible to the general public” does not mean that a violation
under clause (ii) must occur in a public place. Code § 18.2-386.1(A)(ii). Rather, it is clear from
the statutory context that this is simply a standard by which to assess whether the victim’s
“intimate parts or undergarments” were reasonably out of view, as a prerequisite to finding that
the accused has viewed them unlawfully. Id.
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did not err in finding that she had a reasonable expectation of privacy as to those undergarments
for purposes of Code § 18.2-386.1.
B. Sufficiency of the Evidence
When reviewing a challenge to the sufficiency of the evidence, “the judgment of the trial
court sitting without a jury is entitled to the same weight as a jury verdict.” Saunders v.
Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42 (1991) (citation omitted). Under this
standard, this Court does not “ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)
(emphasis in original; citation and internal quotation marks omitted). Instead, we ask only
“‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”
Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson,
443 U.S. at 319) (emphasis in original). See also McMillan v. Commonwealth, 277 Va. 11, 19,
671 S.E.2d 396, 399 (2009); Jones v. Commonwealth, 277 Va. 171, 182, 670 S.E.2d 727, 734
(2009); Clanton v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (Mar. 17,
2009) (en banc).
We review the evidence in the “light most favorable” to the Commonwealth as the
prevailing party below. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786
(2003) (citations omitted). C.C., a twenty-year-old female, went shopping at a clothing store,
which was open to the general public, wearing a mid-thigh length dress that completely covered
her undergarments. As C.C. testified at trial, while in the store, she turned around to look at a
rack of clothing behind her and discovered that someone with a camera was “either crouched or
laying [sic] on the ground underneath the rack.” At the time, all she could see was the person’s
hand and arm “extended outside of the rack of clothing holding a camera that was tilted upwards
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. . . so it could view up . . . [her] dress.” C.C. estimated that the camera was about a foot and a
half from her leg. She then moved to the other side of the rack and saw Wilson getting to his feet
with the camera in his hand.
Police Officer K.O. Jones questioned Wilson shortly thereafter, at which time Wilson
admitted that he was the one with the camera underneath the rack of clothing and that C.C., in
fact, “stepped on his hand while [he was] down there.” Wilson also later admitted to a
magistrate that he took C.C.’s picture with his camera. Officer Jones obtained Wilson’s camera
for forensic analysis, but no images were recovered due to a malfunction with the camera.
Wilson argues the evidence was insufficient to prove he positioned his camera directly
beneath or between C.C.’s legs, based on C.C.’s testimony that Wilson’s camera was
approximately one and a half feet away from her leg. According to Wilson, “direct” in this
context means that his camera had to be “immediately underneath [C.C.’s] clothing” to establish
his culpability; and not just in a direct line of sight, even if at an angle, as the trial court held. In
the alternative, Wilson argues the evidence was insufficient because there was “no way to
determine what subject matter [he] actually photographed” in light of the fact his camera
contained no photographs.
Wilson was charged with and convicted of attempting to photograph C.C., in violation of
Code §§ 18.2-27 and 18.2-386.1—not the completed crime. Therefore, it was not necessary for
the Commonwealth to prove that he, in fact, accomplished “directly” photographing C.C. in the
proscribed manner under the statute. See Hix v. Commonwealth, 270 Va. 335, 347, 619 S.E.2d
80, 87 (2005) (“‘[A]n attempt to commit a crime is composed of two elements: (1) the intent to
commit it; and (2) a direct, ineffectual act done toward its commission.’” (quoting Barrett v.
Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451 (1969))). For the same reason, it was
not necessary for the Commonwealth to offer proof that Wilson actually photographed anything.
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See id. at 341-47, 619 S.E.2d at 83-87 (affirming conviction of attempted indecent liberties with
a minor under Code § 18.2-370 where defendant’s targeted minor victim was, in fact, an adult
undercover police officer).
On this record, the evidence was sufficient for the trial court to rationally find Wilson
guilty of attempting to photograph C.C. in violation of Code § 18.2-386.1.
CONCLUSION
For these reasons, we affirm Wilson’s conviction.
Affirmed.
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