June 16, 2016
from the Superior Court of the District of Columbia
(CMD-1050-15) (Hon. Patricia A. Broderick, Trial Judge)
R. Tetzlaff'for appellant.
P. Dolin, Assistant United States Attorney, with whom
Channing D. Phillips, United States Attorney at the time the
brief was filed, and Elizabeth Trosman, Elizabeth H. Danello,
and Natasha Smalky, Assistant United States Attorneys, were
on the brief, for appellee.
Thompson and Easterly, Associate Judges, and Farrell, Senior
case came to be heard on the transcript of record, the briefs
filed, and was argued by counsel. On consideration whereof,
and as set forth in the opinion filed this date, it is now
and ADJUDGED that the trial court's judgment is affirmed.
Farrell, Senior Judge
a bench trial, appellant was found guilty of attempted
voyeurism, in violation of D.C. Code §§ 22-3531
(b)(1), -1803 (2013 Repl.). On appeal, he contends that as a
matter of law his conduct did not satisfy the requirements of
the voyeurism statute because he did not "occupy a
hidden observation post." We disagree and affirm.
in the light most favorable to the verdict, the evidence
established that shortly after midnight on January 6, 2015,
Shirley Cartwright and her niece visited Epicurean and
Company, a restaurant on the campus of the Georgetown
University Medical Center. The restaurant was not busy; only
four employees (two cashiers, appellant, and a supervisor)
and about five customers were on the premises, besides Ms.
Cartwright and her niece. After paying for her food, Ms.
Cartwright asked a cashier for directions to the rest room.
The cashier guided her to a hallway and pointed out the
ladies' rest room at the end of the hall on the left. As
Cartwright passed the door to the men's rest room,
appellant was leaving the room with a dustpan and a broom.
Cartwright heard appellant speak briefly with the cashier who
had given Cartwright directions. A still-image taken from a
hallway video surveillance camera showed appellant looking
back at Cartwright just before she entered the ladies'
went into the rest room, which was unoccupied, and entered
the last stall. The stalls were separated from each other by
floor-to-ceiling walls, and the stall doors extended nearly
to the floor, leaving a space of 12 to 14 inches at the
bottom. Cartwright did not hear anyone knock or make other
noises. While sitting on the toilet, she "got this
really eerie feeling . . . and felt really weird and
crazy." She looked down and saw "this man down, way
down to the ground looking under my stall." The
man's face was sideways, but she could not see the rest
of his body; judging from the position of his head,
Cartwright believed that his body was "down on the
ground." Appellant was looking directly at her.
Cartwright screamed and cursed at appellant, telling him to
get out. Appellant said nothing, got up, and ran out of the
rest room. Cartwright recognized him in the bathroom, and
testified accordingly, as the restaurant employee she had
seen in the hallway.
testified that he had entered the ladies' room and
remained there only to clean it, thinking it was vacant.
Noticing that the door to the third stall was closed, he
looked underneath it and was surprised to see Cartwright in
the stall. On cross-examination, he was shown surveillance
footage from the hallway in which he is seen approaching the
door to the ladies' room about thirty seconds after
Cartwright entered it. Appellant acknowledged that he turned
back before entering, walked to the men's room, looked
briefly inside, and then returned to the ladies' room and
finding appellant guilty, the trial court credited
Cartwright's testimony and found that appellant had
entered the ladies' room "quietly and
surreptitiously, " hid himself as well as he could to
observe Cartwright, and left only when he was discovered.
appellant's charged conduct met the statutory
requirements for voyeurism is a question of law this court
decides de novo. See Brown v. United
States, 97 A.3d 92, 95 (D.C. 2014).
as the "Privacy Protection Act of 2005" and enacted
in 2007 as part of the "Omnibus Public Safety Amendment
Act, " the voyeurism statute prohibits acts of voyeurism
accompanied by surreptitious filming or recording, and also,
in part, makes it unlawful for a person "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 . . . ." § 22-3531 (b)(1).
The statute does not define the term "hidden observation
post, " which was added to the legislation during the
argues that, however the term is defined, he could not as a
matter of law "occupy a hidden observation post when at
the time [alleged he was] not in hiding, but in plain view of
the alleged victim." The argument appears to be that
without proof that his presence was unknown to the victim for
some discernible time before she saw him and screamed, he
could not have been "hidden" while observing her.
Appellant's broader argument is that "a public rest
room is, " by definition, "not a hidden observation
post, " at least without the use of a "peephole,
mirror or electronic device for the purpose of observing
someone, " because anyone "st[anding] in the
middle of a public rest room" is "in plain and
clear view of anyone else in [the] rest room's common
of these arguments is persuasive. Appellant did not merely
"st[and] in the middle of a public rest room, " and
the judge, as trier of fact, could fairly conclude that
appellant staged his behavior so as to maximize the
likelihood that he would be able to observe Cartwright in the
stall while unseen. Specifically, according to evidence the
judge credited, appellant first 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 to not draw
attention. He thus occupied a "hidden observation
post" by any common-sense understanding of the phrase.
Law Dictionary, although with military usage predominantly in
mind, defines an "observation post" as "a
position from which an enemy or potential enemy can be
watched." Observation Post, Black's Law
Dictionary (10th ed. 2014); see Hood v. United
States, 28 A.3d 553, 559-60 (D.C. 2011) (where a statute
does not define a term at issue, courts look to the
"ordinary or common" meaning, for which "we
may look to the dictionary." Thus, an "observation
post" need only be a "position, " rather than
a fixed or enclosed structure or site, from which an observer
can watch the activity of others. Appellant's position on
the floor qualified as one because, as the trial judge fairly
concluded, he occupied it for the purpose of observing
observation post was also "hidden" from Cartwright,
if only briefly. The evidence showed that he was and intended
himself to be concealed from her and others, because (1),
according to the video surveillance from the hallway, he
checked his surroundings before entering the rest room, (2)
the door to the rest room closed behind him, (3) the rest
room was located at the end of a hallway at some distance
from the restaurant's food-service area, and (4) the
restaurant had few customers after midnight. Further, he
entered the rest room quietly without knocking or announcing
his entry and remained still as he lowered his body and head
far enough to the ground to see Cartwright. The fact that he
was hidden from her just momentarily has no bearing,
otherwise the statute would excuse clumsy efforts at
concealment and punish only more artful ones (such as peering
over the top of the dividing panel from an adjoining stall,
confident that a seated victim will feel no need to look
above her head).
the statute to make appellant's conduct unlawful is
consistent with its legislative aim, which is to
"prohibit persons from spying on their neighbors,
guests, tenants, or others in places and under circumstances
where there is an expectation of privacy, that is, in a home,
bedroom, bathroom, changing room, and similar locations and
under one's clothing." Letter from Anthony A.
Williams, Mayor, District of Columbia, to Linda W. Cropp,
D.C. Council Chairman, introducing the legislation (Apr. 6,
at 36)). There is no evidence that the D.C. Council, in
enacting the "Privacy Protection Act of 2005" and
adding the phrase "hidden observation post, "
intended to outlaw the surreptitious use of, say, bathroom
peepholes and mirrors but to permit acts of voyeurism in
staged circumstances such as this case presents. The effect
on the victim is the same, and the conduct equally
further errs in arguing that if the common area of a rest
room may serve as a post within the statute's meaning,
then "nearly all public areas" would qualify as
hidden observation posts. As explained, what made
appellant's position a hidden observation post were the
circumstances making his vantage point private, not public.
After midnight when there were few restaurant patrons, he
stealthily entered the ladies' room and closed the door
behind him, then, having reason to believe he was hidden from
others and Cartwright, positioned himself so as to spy on her
while she used the facility. This ...