134 Nev., Advance Opinion .2.6
IN THE SUPREME COURT OF THE STATE OF NEVADA
SOLOMON COLEMAN, No. 71052
Appellant,
vs.
FILED
THE STATE OF NEVADA, MAY U 3 2018
Respondent.
EIR-i6 T
BY
Appeal from a judgment of conviction, pursuant (t.6 a jury
verdict, of capturing an image of the private area of another person. Eighth
Judicial District Court, Clark County; Kerry Louise Earley, Judge.
Reversed.
The Law Office of Travis Akin and Travis D. Akin, Las Vegas; Justice Law
Center and Bret 0. Whipple, Las Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Krista D. Barrie, Chief Deputy District Attorney, and
Elissa Luzaich, Deputy District Attorney, Clark County,
for Respondent.
BEFORE DOUGLAS, C.J., GIBBONS and PICKERING, JJ.
OPINION
By the Court, PICKERING, J.:
NRS 200.604 prohibits a person from knowingly and
intentionally capturing an image of another person's private area without
her consent, under circumstances in which she has a reasonable expectation
of privacy. The question presented is whether the statute prohibits a person
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from copying, without permission, a consensually recorded video depicting
sexual acts. We hold that such copying does not violate NRS 200.604 and
therefore reverse.
I.
Coleman was arrested and charged with several crimes
involving two alleged victims. After a five-day trial, the jury acquitted
Coleman of all charges except one: capturing an image of the private area
of another person in violation of NRS 200.604. The facts related to that
charge involve one victim, L.M.
Coleman, a Las Vegas police officer, responded to a scene where
another officer had detained L.M. and a friend of hers. L.M. admitted she
had outstanding warrants, and after finding drugs in L.M.'s friend's purse,
the officers arrested both women. At some point during the arrest, L.M.
gave Coleman permission to go through her cell phone, where he found
sexual videos of her and her boyfriend. Coleman copied these videos onto
his cell phone by recording the video while it was playing on L.M.'s cell
phone. Sometime later, police had occasion to search Coleman's cell phone
and they found the videos of L.M. and her boyfriend. Coleman was charged
and convicted of violating NRS 200.604 and now appeals.
Coleman argues that the State did not put forth sufficient
evidence to convict him under NRS 200.604 because the statute prohibits
voyeurism and Coleman did not take a video of L.M.'s physical body directly
but merely copied an existing video. The State responds that the statute
prohibits Coleman's conduct because he captured an image of L.M.'s private
area from a video on her cell phone, in which she had a reasonable
expectation of privacy.
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Determining whether the State provided sufficient evidence to
convict Coleman under NRS 200.604 requires us to interpret the statute to
understand what conduct it prohibits. Issues of statutory interpretation are
questions of law reviewed de novo. State v. Catanio, 120 Nev. 1030, 1033,
102 P.3d 588, 590 (2004). If a statute is unambiguous, this court does not
look beyond its plain language in interpreting it. State v. Lucero, 127 Nev.
92, 95,
249 P.3d 1226, 1228 (2011). When a statute is ambiguous, meaning
it is susceptible to two or more reasonable interpretations, the court may
look to extrinsic aids such as legislative history, extra-jurisdictional
authority, and principles of interpretation, including the rule of lenity, to
disambiguate its text. Id.
A.
NRS 200.604(1) provides that "a person shall not knowingly and
intentionally capture an image of the private area of another person:
(a) [w]ithout the consent of the other person; and (b) [u]nder circumstances
in which the other person has a reasonable expectation of privacy."
"Capture,' with respect to an image means, to videotape, photograph, film,
record by any means for broadcast." NRS 200.604(8)(b). Under NRS
200.604(2), it is also illegal to "distribute, disclose, display, transmit or
publish an image that the person knows or has reasons to know was made
in violation of subsection 1."
NRS 200.604 is ambiguous because "capture an image" is
susceptible to two reasonable interpretations. NRS 200.604(1) could be
limited to videotaping, photographing, filming, or recording a physical
person in real time, or it could also include the copying of a pre-existing
image that displays a private area. The plain meaning of the word "image"
offers no clarification, as it includes both proposed definitions. Merriam-
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Webster's definition of "image" includes "a reproduction or imitation of the
form of a person or thing," "a visual representation of something," or "a vivid
or graphic representation or description." See Image, Merriam-Webster
https://www.merriam-webster.com/dictionary/image (last visited March 29,
2018). Thus, we must look to NRS 200.604's legislative history and other
relevant extrinsic aids for guidance.
B.
NRS 200.604's legislative history reveals that the Legislature
created NRS 200.604(1) to criminalize the act of taking photos or video of a
person's private area in real time, either in a public or private physical
location, when that person had a reasonable expectation of privacy. The
Legislature recognized that using small cameras or video recording devices
to take pictures of people under their clothing or places of privacy such as
dressing rooms or bathrooms had become increasingly common, yet Nevada
law did not criminalize such activity. See Hearing on S.B. 10 Before the
Senate Judiciary Comm., 74th Leg. (Nev., February 8, 2007) (statement of
Senator Barbara K. Cegavske) ("I received a call from parents whose
daughter was at a casino when she discovered a man with a camera on his
shoe filming underneath the skirts of women and showing the pictures on
the Internet. . . . There was another case of showgirls unknowingly filmed
in their dressing rooms changing clothes . . . . In the case of the young
daughter, the parents had the man arrested. Unfortunately he was
released because such an activity is not a criminal act."); id. (statement of
Stan Olsen, Las Vegas Metropolitan Police Department) ("There was also
the case of [S.W.] who rented a house where the landlord placed hidden
cameras in the bedroom and bathroom filming her in various stages of
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nudity. Nothing could be done. A person has the right to privacy in the
bathroom of their home.").
NRS 200.604 did not concern criminalizing the republication of
consensually captured images of a person's private areas. See Hearing on
S.B. 10 Before the Assembly Judiciary Comm., 74th Leg. (Nev., May 16,
2007) (statement of Assemblyman Marcus L. Conklin) ("We are trying to
punish those who would make a living at doing this. . . . How do we get
those people but not somebody. . . who in a social, consensual setting gets
caught up in something ridiculous that happens and then somebody got
mad."); see also Hearing on S.B. 10 Before the Assembly Judiciary Comm.,
74th Leg. (Nev., April 18, 2007) (statement of Senator Barbara K. Cegavske)
("[Janet Jackson] had no expectancy of privacy [at the Superbowl]. She did
not expect that people would not be taking pictures. This is geared more
towards when you are in your home or underneath clothing.").
C.
A state court may consult federal law to disambiguate a state
statute that is identical or similar to a federal act. See Shambie Singer, 2B
Sutherland Statutory Construction § 52:2 (7th ed. 2017) (citing examples of
states applying federal interpretations to statutes adopted from federal
acts). The Legislature adopted NRS 200.604 and the related definitions in
NRS 200.604(8) from 18 U.S.C. § 1801 (2006), the Video Voyeurism
Prevention Act of 2004. The federal act prohibits taking videos or
photographs of a person's private area without consent in settings where
that person has a reasonable expectation of privacy. 18 U.S.C. § 1801(1).
Congress passed 18 U.S.C. § 1801 to thwart "video voyeurism,"
as "[t]he development of small, concealed cameras and cell phone cameras,
along with the instantaneous distribution capabilities of the Internet, have
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combined to create a threat to the privacy of unsuspecting adults, high
school students, and children." H.R. Rep. No. 108-504, at 3 (2004), reprinted
in 2004 U.S.C.C.A.N. 3292, 3293. Such invasions of privacy occur when the
voyeur takes pictures or video of an unsuspecting person's private areas in
real time, such as in "locker rooms, department store dressing rooms, and
even homes." Id. Consistent with the statute's text and history, federal
courts have interpreted 18 U.S.C. § 1801 as prohibiting a person from
capturing nonconsensual images of a person's private area in situations in
which that person has a reasonable expectation of privacy. See United
States v. Johnson, No. 2:10-CR-71-FtM-36DNF, 2011 WL 2446567, at *9
(M.D. Florida June 15, 2011) (defendant committed voyeurism under 18
U.S.C. § 1801 when concealing his cell phone in a bathroom and recording
a 13-year-old female). 18 U.S.C. § 1801 and its interpretive gloss support
reading NRS 200.604 to prohibit the act of taking photos or video of a
person's private area in real time, a type of voyeurism, not to prohibit the
copying or dissemination of a person's pre-existing consensual pictures and
videos.
D.
The rule of lenity dispels any lingering doubts as to the conduct
NRS 200.604 criminalizes. Because "a fair system of laws requires precision
in the definition of offenses and punishments," the rule of lenity holds that
"[a]mbiguity in a statute defining a crime or imposing a penalty should be
resolved in the defendant's favor," Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 296, 301 (Thompson/West
2012); compare Singer, supra at § 59:3 ("It is an ancient rule of statutory
construction that penal statutes should be strictly construed . . . in favor of
the persons on whom penalties are sought to be imposed."), with Buschauer
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v. State, 106 Nev. 890, 896,
804 P.2d 1046, 1049 (1990) ("[T]his court will
narrowly construe penal statutes where they are ambiguous."), and Romero
v. State, 116 Nev. 344, 348,
996 P.2d 894, 897 (2000) (construing NRS
206.310 and NRS 193.155 narrowly to hold that the value of damages for
partially damaged property resulting from malicious destruction "must be
directly tied to the damage to the property," as opposed to any incidental
effect).
In light of its history, the interpretation given the federal model
from which it was drawn, and the rule of lenity, we conclude that NRS
200.604 prohibits capturing or disseminating an image of a person's private
parts, taken without consent, under circumstances in which that person has
a reasonable expectation of privacy. NRS 200.604(1) does not prohibit
capturing an image of an image of a private area. Nor does NRS 200.604(2)
apply where the original image was consensually taken.
With NRS 200.604's meaning clarified, we now decide whether
the State provided sufficient evidence to convict Coleman. A sufficiency-ofevidence challenge asks "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." Middleton
v. State, 114 Nev. 1089, 1103,
968 P.2d 296, 306 (1998) (internal quotation
marks omitted).
The State did not present sufficient evidence to convict
Coleman under NRS 200.604. At trial, the State proved that Coleman used
his cell phone to copy L.M.'s video while it played on her cell phone. NRS
200.604 does not prohibit this conduct. Under NRS 200.604(1), the State
needed to show that Coleman took a video of L.M.'s private parts, without
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her consent, under circumstances in which she had a reasonable right to
privacy. However, Coleman only copied a pre-existing video, and did not
capture an image of L.M.'s private area in real time. And, pursuant to NRS
200.604(2), the State needed to show the original video depicting L.M.'s
private area was not taken consensually. L.M. testified that the videos on
her cell phone were consensual, thus NRS 200.604(2) did not prohibit their
dissemination.
Our holding that NRS 200.604 does not criminalize copying a
consensually recorded image of a sexual act makes it unnecessary to delve
into the State's argument that, although L.M. gave her cell phone to
Coleman, she did not thereby consent to his examination of its contents.
Compare Byars v. State, 130 Nev. 848, 856, 336 P.34 939, 945 (2014)
("Consent to a search. . . provides an exception to both the Fourth
Amendment[] . . . and warrant requirements.") (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973)), with Riley v. California,
134 S. Ct.
2473, 2485 (2014) (holdingS that the police generally may not, without a
warrant, search digital information on a cell phone seized from an
individual who has been arrested).
We reverse.
J.
We concur:
, C.J.
bons
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