State of Arizona v. Agustin Gonzalez Gongora

Citations: 235 Ariz. 178; 330 P.3d 368; 689 Ariz. Adv. Rep. 12; 2014 WL 2853902; 2014 Ariz. App. LEXIS 112Docket: 2 CA-CR 2013-0096

Court: Court of Appeals of Arizona; June 23, 2014; Arizona; State Appellate Court

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Agustin Gongora was convicted of voyeurism after allegedly looking up a woman's dress in a retail store. The incident, witnessed by a loss prevention detective and captured on security cameras, led to Gongora's admission to police that he acted "like a romantic thing." He challenged the sufficiency of the evidence on appeal, arguing that the state did not prove the victim, C.H., had a reasonable expectation of privacy since the incident occurred in a public setting. The court affirmed the conviction, emphasizing that legal interpretation of the voyeurism statute (A.R.S. 13-1424) does not require the victim to have an absolute expectation of privacy, particularly when considering the statutory language that addresses privacy invasion for sexual stimulation without the victim's knowledge. The court denied Gongora's motions for dismissal and acquittal, ultimately sentencing him to four years of probation and deferring sex offender registration.

A person's privacy is considered invaded under Arizona's voyeurism statute if: (1) they have a reasonable expectation of privacy against being photographed or recorded; and (2) they are recorded in specific situations, such as being undressed, engaging in sexual acts, or in a manner that exposes their genitalia, buttocks, or female breasts. The statute, added in 2006, has not been previously interpreted in published cases. Gongora references State v. Glas to argue that the victim must not expect to be viewed at all. However, the Washington Supreme Court in Glas focused on the term "place," concluding that it did not protect individuals in public spaces, which is not applicable to Arizona's statute. Arizona's statute lacks the term "place," and it does not impose a requirement that the victim must not be viewed from any angle. Therefore, a clothed person in public has a reasonable expectation that their body will not be exposed as if unclothed. Additionally, Gongora's reliance on legislative history is deemed unnecessary since the language of the statute is clear and unambiguous. The court did not find any legislative intent that contradicts this clarity.

Gongora's argument regarding legislative intent is based on earlier drafts of Senate Bill 1039, which introduced the voyeurism statute. The original draft included specific language about viewing underneath a person's skirt, but this was removed in the final version. Instead, the amended statute criminalizes viewing that captures or allows visibility of a person's genitalia, buttocks, or female breasts, whether clothed or unclothed, in a manner not publicly visible. Gongora interprets the initial "upskirt" reference as limiting voyeurism to surreptitious photography, but the removal of this language suggests broader legislative intent. The court highlights that the absence of specific language in the final bill indicates the legislature did not intend for those omitted provisions to be effective. It also notes that the voyeurism statute explicitly requires the intent to achieve sexual stimulation, a requirement not present in the surreptitious photographing statute. The court affirms Gongora's conviction, stating that the legislative history does not contradict the statute's plain language, which encompasses offenses in public areas. Additionally, a statement from the Final Amended Fact Sheet about reasonable expectations of privacy pertains to previous law and does not influence the interpretation of the amended statute, as the law is defined by the legislation itself, not accompanying summaries or fact sheets.