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State v. Mason

Court of Appeals of Washington, Division 1

February 12, 2018


          SPEARMAN, J.

         Eric Mason hid a video camera in the bathroom he shared with his stepsister and her husband. Over the course of a few months he filmed his stepsister on one occasion and her husband on three occasions. Once the filming did not capture anyone. A jury convicted Mason of four counts of voyeurism and one count of attempted voyeurism. On appeal, he claims that his multiple convictions for the same victim violated his double jeopardy rights, and that there was insufficient evidence that he filmed for the purpose of sexual gratification. He also argues that the prosecutor engaged in misconduct, that his counsel was ineffective, and that several of his conditions of community custody are unlawful. We agree with Mason's challenges to the conditions of community custody, but conclude that his other claims lack merit. We affirm his conviction, but remand for the trial court to strike, and/or amend the unlawful community custody conditions.


         In the early morning hours of November 28, 2015, Jack Keend used the bathroom that he shared with his wife, Hannah, and her stepbrother, Eric Mason. He noticed a camera inside a wicker decoration on top of the toilet. Jack removed the camera and brought it to his father in law, Doug Peterson. They confronted Mason, who denied responsibility. Jack and Doug turned the camera on and watched video of Mason setting it up. Doug called the police. An officer came to the house and arrested Mason. In reference to the camera, Mason said to the officer, "[t]here's nothing on there." Verbatim Report of Proceedings (VRP) at 132.

         A detective analyzed the contents of the camera, which contained five separate videos, four of which recorded Hannah or Jack in the bathroom. In the beginning of the first video, recorded on October 4, 2015 at 10:32 p.m., Mason is seen setting up the camera. The camera points toward the shower, and Hannah is seen from the shoulders up entering and exiting the shower.

         Three other videos show Jack using the bathroom. Each begins with Mason setting up and angling the camera toward the door, so the whole bathroom can be seen. At a certain point, Jack enters the bathroom, urinates, and exits. These videos were recorded on October 6 at 9:50 p.m., October 7 at 10:41 p.m., and November 27 at 11:53 p.m. One video, recorded November 22 at 9:42 p.m., shows only Mason setting up the camera, with no other person entering the bathroom.

         Mason was charged with four counts of voyeurism, one count of attempted voyeurism, and possession of methamphetamine. At trial, Mason admitted filming, but said the videos were "not sexual at all." VRP at 227. He explained that his purpose was to make Jack feel violated because Jack had previously walked into Mason's room while his girlfriend was partially dressed. Mason also said that he was collecting video evidence that Jack cooked the family dinner after urinating and not washing his hands. Mason intended to make a presentation to the family "so they can digest their own dysfunction." VRP at 226.

         Hannah testified that she always showered between 10:30pm and midnight. In closing, the State urged that the jury infer that the timing of Mason's recordings, all initiated between 9:42 p.m. and 11:53 p.m., showed his intent to capture Hannah undressed in the bathroom. The State also argued that the jury could infer Mason's purpose from his careful readjustment of the camera after his first attempt failed to capture Hannah's full body.

         The jury convicted Mason as charged. His sentence included community custody conditions. The court also ordered that he pay a $500 victim assessment and $200 criminal filing fee. Mason appeals.


         Double Jeopardy

         Mason argues that the unit of prosecution for voyeurism is per victim, so his three voyeurism convictions for Jack violate double jeopardy. The State argues that the unit of prosecution here is per viewing, so the three recordings support three convictions. Because both parties are correct, Mason's claim fails.

         Mason's double jeopardy claim raises an issue of statutory interpretation, which we review de novo. State v. Thomas, 150 Wn.2d 666, 670, 80 P.3d 168 (2003). The constitutional guaranty against double jeopardy protects a defendant against multiple punishments for the same offense. U.S. Const, amend. V; Wash. Const, art. I, § 9. Double jeopardy is implicated when the court exceeds its authority and imposes multiple punishments where the legislature has not authorized them. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). "When the Legislature defines the scope of a criminal act (the unit of prosecution), double jeopardy protects a defendant from being convicted twice under the same statute for committing just one unit of the crime." State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998). The unit of prosecution may be an act or a course of conduct. State v. Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728 (2005). To determine the unit of prosecution, we first examine the statute's plain language, Id.

         The voyeurism statute reads:

(2) 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:
(a) Another person without that person's knowledge and consent while the person being viewed, photographed, or filmed is in a place where he or she would have a reasonable expectation of privacy; or
(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.

         Former RCW 9A.44.115(2) (2003). "Photographs" or "films" is defined as "the making of a photograph, motion picture film, videotape, digital image, or any other recording or transmission of the image of a person." RCW 9A.44.115(1)(b).

         The plain language of the statute criminalizes "the making of a ... film." Id. This shows legislative intent that the unit of prosecution be an instance of filming. This reasoning was approved in State v. Ose, 156 Wn.2d 140, 146, 124 P.3d 635 (2005), which examined the second degree possession of stolen property statute and concluded that "the legislature unambiguously defined the unit of prosecution ... as one count per access device by using the indefinite article 'a' in the clause 'a stolen access device.'" Similarly here, the legislature defined the unit of prosecution in the voyeurism statute as one count per filming by defining "films" as the making of a film. It unambiguously makes each instance of filming a separate violation of the statute.

         Mason disputes that the statute permits a unit of prosecution that is per instance of filming. He contends that the correct unit of prosecution is per victim. In his view, the three counts involving Jack should have been charged as one count. In support of this contention, he relies on State v. Diaz-Flores,148 Wn.App. 911, 201 P.3d 1073 (2009). In that case, Diaz-Flores was convicted of two counts of voyeurism after watching two people have sex with each other from outside the couple's apartment on a single occasion. Diaz-Flores, 148 Wn.App. at 913. We held that "[t]he plain language of the voyeurism statute establishes that the legislature intended the unit of prosecution to be each victim whose right to privacy is violated." Id. at 917. Mason's reliance on the case is misplaced, however, because there, unlike in this case, neither victim was viewed more than once. Thus we did not have occasion to consider whether double jeopardy precluded multiple punishments for the same victim viewed multiple times. As discussed above, now ...

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