Metadata, Voyeurism and Upskirting

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After a judge convicted him of voyeurism in violation of Washington Revised Code § 9A.44.115(2)(b), Richard G. Burk appealed.  State v. Burk, 2013 WL 951000 (Washington Court of Appeals 2013).  

(Burk waived his right to a jury trial and opted for a bench trial. State v. Burk, supra.  And all the opinion says about sentencing is that the judge “imposed a standard sentence.”  State v. Burk, supra.)

This, according to the opinion, is how the case arose:

On April 23, 2011, Claire's Boutique assistant manager Isaiah Lee observed Burk go to the back of the store, kneel down, and put a camera under the skirt of a woman `like he was taking a picture.’  Lee confronted Burk . . . and [he] left the store. 

Lee notified mall security. Mall security officer Ian Geiger observed Burk running by his post and into Macy's. Geiger began to pursue Burk inside Macy's. Another security officer, Timothy Choi, was in the parking lot on bicycle patrol and saw Burk exiting Macy's. Both Choi and Geiger closed in on Burk in the mall parking lot.

Choi observed Burk throw a small black object onto the ground. After Choi and Geiger repeatedly told Burk to stop running, Burk finally stopped. Officer Donald Ames arrived in the parking lot moments later and detained Burk. 

Sergeants Gurr and Johnson arrived shortly thereafter. Geiger located the small black object Burk had thrown on the ground during the pursuit, and Burk eventually admitted the object was his digital camera.

Sergeant Johnson turned on the camera and viewed a few of the images, the first of which was an up-skirt photo of a female. The police also recovered Burk's sweatshirt, which had been modified with a reinforced hole to accommodate the lens of the camera.

After obtaining a search warrant, a Tukwila police detective obtained the photos from the camera, some of which were `taken from below the hemline of different females' skirts, at an upward angle to capture the parts of the females' bodies intended to be covered by the skirts.’

State v. Burk, supra.  (As you may know, this is sometimes referred to as “upskirting.”)

Burk was charged with one count of voyeurism, as noted above, and convicted, as is also noted above.  State v. Burk, supra. 

On appeal, Burk claimed “there was insufficient evidence to establish he actually took an `up-skirt’ photo of the victim.”  State v. Burk, supra.  The court began its analysis of his argument by noting that a challenge to the sufficiency of the evidence

presented at a bench trial requires us to review the trial court's findings of fact and conclusions of law to determine whether substantial evidence supports the challenged findings, and whether the findings support the conclusions.  

Evidence is sufficient to support a conviction if, after viewing the evidence and all reasonable inferences therefrom in the light most favorable to the State, a rational trier of fact could find each element of the crime proven beyond a reasonable doubt.

When challenging the sufficiency of the evidence, the defendant admits the truth of the State's evidence.  We give great deference to the finder of fact in resolving conflicting testimony and weighing the evidence. Circumstantial and direct evidence are accorded equal weight. . . . .

State v. Burk, supra. 

The Court of Appeals also explained that the charge of voyeurism in this case required the prosecution to prove

each of the following statutory elements under § 9A.44.115(2)(b):

A person commits the crime of voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, or films. . .

(b) The intimate areas of another person without that person's knowledge and consent and under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place.

State v. Burk, supra. 

In his appellate brief, Burk argued that the evidence was insufficient to prove these elements because a search of his camera revealed

several `up skirt’ photographs of women who could not be identified from the photos. There was no evidence linking any of those photographs with the young woman in Claire's Boutique. 

She did not testify or give a statement to police. The assistant manager could not describe her other than to say she appeared to be under 18 years of age.

Although the evidence showed Burk placed a camera under her skirt, the State did not prove he actually took a photograph under the skirt. Thus, the State did not prove Burk photographed the `intimate areas’ of the young woman and the evidence is insufficient to sustain his conviction for voyeurism.

Appellant’s Opening Brief, State v. Burk, 2012 WL 3176230.

The Court of Appeals noted that the “statement of the store manager, Mr. Lee, is the only evidence in the record of Burk's actions inside the store.”  State v. Burk, supra. It also noted that Lee’s incident statement form read as follows:

`Burk was in Claire's where I am an assistant mgr. I watched him because he came in buy [sic] himself and my manager thought she saw [a] camera. He goes to the back of the store kneeled down and put a camera under a girls [sic] skirt like he was taking a picture.’

State v. Burk, supra.

The court also explained that at Burk’s trial, the prosecution presented evidence that

Burk kneeled down and placed the camera underneath the victim's skirt. [It] also presented evidence that Burk had 13 up-skirt photos on his camera, including the first photo that appeared when Sergeant Johnson turned on the camera. 

Drawing all reasonable inferences in favor of the State, sufficient evidence supports the trial court's finding that Burk actually took an up-skirt photograph of the victim inside Claire's.

State v. Burk, supra.

Burk also challenged the trial judge’s finding, at trial, that

`Sergeant Johnson viewed a few images on the camera, the majority of which were of female shoppers from behind. Sergeant Johnson located on[e] image that appeared to be up the skirt of a female shopper.’  Police could not identify the females in the photographs.

Burk argues that even if he did take a photo in Claire's, there was no way to definitely say that one or more of the up-skirt photos on the camera were of the intimate areas of the victim in Claire's.

State v. Burk, supra.

In a footnote, the Court of Appeals explains that at trial, Detective Tom Stock testified

`There was no way to identify who the people in the camera were.’ . . . Nor did the State introduce the metadata from the camera, which could have definitely established, via time stamp, which of the pictures was actually taken in Claire's.

State v. Burk, supra.

It also found that Burk’s argument ignored the “combined weight” of “all” of the

circumstantial evidence. Burk admitted ownership of the camera. There were multiple photographs of victims' intimate areas on the camera's memory card, including the first photo that appeared when police turned on Burk's camera which was taken, `at an upward angle to capture the parts of the females' bodies intended to be covered by the skirts.’

And Lee saw Burk place the camera underneath this victim's skirt, providing the necessary angle to photograph the victim's intimate areas. Sufficient evidence supports the finding that Burk photographed the intimate areas of this particular victim.

State v. Burk, supra.

Burk also argued that the trial judge erred in finding that he took the photo “without the victim’s knowledge and consent.”  State v. Burk, supra.  The Court of Appeals, again, did not agree, pointing out that the trial judge found that Burk

fled when Lee confronted him about Burk's activity with the camera. As the two mall security guards chased Burk through the mall parking lot, Burk flung his camera to the ground. Burk's sweatshirt, which was admitted into evidence, had a `premade hole in it reinforced on the interior with rubber tubing to hold the hole's shape.’

Although not described in the trial court's findings, the Tukwila Police Department evidence form describes the sweatshirt as having a `right outer pocket modified to fit camera.’ Finally, of the 127 photographs contained on the camera's memory card, 13 were up-skirt photos, and the rest were of females' clothed buttocks area and legs, taken from behind.

State v. Burk, supra.  It therefore held that “the ample circumstantial evidence and the rational inferences therefrom” were sufficient to support the trial judge’s finding of a lack of knowledge and consent.  State v. Burk, supra.

Finally, in his “statement of additional grounds” as to why his conviction should be reversed, Burk also argued that “because the State did not introduce the metadata from the camera, there is no way to know if any of the photographs were actually taken on April 23, 2011, the date the State alleges the crime occurred.”  State v. Burk, supra.  The Court of Appeals simply noted that its analysis above “disposed of” this argument.  State v. Burk, supra.  

Finally, Burk argued that because the

first several photos Sergeant Johnson viewed were not up-skirt photographs, and because the `the first image displayed is the last picture which was loaded on the camera's memory card,’ Burk did not actually take the up-skirt photograph of the victim in Claire's Boutique.

Contrary to Burk's argument, the record before us shows that when Sergeant Johnson turned on the camera, the first photo he saw was an up-skirt shot.  Burk's argument harms him more than it helps him.

State v. Burk, supra.

For all these reasons, the court affirmed Burk’s conviction.  State v. Burk, supra.

If you would like to read a little more about Burk’s experiences with voyeurism, check out the news story you can find here.