The question of the day in Judge Eugene Balonon’s courtroom was whether a woman taking a shower in her own home had a reasonable expectation of privacy.
Brad Wishek, the lawyer for an accused Peeping Tom by the name of Christopher Joe Tom, didn’t really dispute the issue. It was Wishek’s contention, however, in a hearing Friday in Sacramento Superior Court, that his client also was legally within his rights to film two female next-door neighbors from a perch on his side of the fence as they showered.
“Human beings do a lot of terrible things to each other,” Wishek said, alluding to allegations that Tom, 32, propped a camcorder above his backyard fence to film the women while they showered. But his client’s conduct, which prosecutors in the misdemeanor case say included filming the women an estimated 20 times in 2012 and 2013, “is not a crime,” Wishek said.
The lawyer said a peeper is OK as long as he doesn’t do his viewing through a “hole or opening,” as specifically spelled out by Section 647(j)(1) of the California Penal Code, and views “by any instrumentality, including, but not limited to a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any area in which the occupant has a reasonable expectation of privacy.”
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Deputy District Attorney Andrea Morris argued that as far as the latter part of the statute is concerned, a person has every right to expect privacy in his or her own shower.
“People don’t expect their neighbors to prey upon them when they’re in their bathroom,” Morris told the judge. Nor do they expect the young man living next door “to elevate their vantage point, use a camera over a fence to zoom in, focus in, (and) reflect off a mirror to see them in their shower,” as prosecutors say Tom did.
Balonon did not need to go to the law books to settle this one. The dictionary told him all he needed to know when it came to the definition of “window” and whether it met the legal concept of an “opening.”
In his reading of Webster, the judge recited its definition of a window as “an opening in a wall, door, etc., that usually contains a sheet of glass.” Oxford agreed, asserting that the window is “an opening” in a wall or roof or even a car that “allows light to come in and allows people to see out.”
The judge noted that Tom, who is 5-foot-8, wasn’t tall enough to see over his backyard fence, measured at 6-foot-1, to get a look inside the shower. It appeared that Tom climbed upon a planter to better position the camera, according to Balonon.
“By taking that vantage point, he is violating someone’s expectation of privacy,” the judge found.
Wishek raised the issue of the plain meaning of 647(j)(1) Friday in his effort to obtain an acquittal for Tom after his waiver of a jury trial. The judge’s legal determination that a window is an opening and that a woman has a right to expect privacy while taking a shower, however, now appears to have dealt the defense a major blow.
The defense lawyer said in court he will explore the evidence in coming weeks to see if he can find any problems with it. The next hearing is scheduled for Feb. 27.
Wishek is not confident about his client’s prospects. Short of any major evidentiary issues, “I presume he’ll be found guilty then,” he told the judge.