### FILED FEB. 27,2014 IntheOffice oftbeClerkofCourt W A StateCourtofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 31155-4-111 ) Respondent, ) ) 

## v. ) ) JIMMIEWAYNE MOSER, ) UNPUBLISHED OPINION ) Appellant. ) BROWN, J. - JimmieW. Moserappeals his voyeurism conviction, contending sufficientevidence does not showthevictim had a reasonable expectation ofprivacy in her homewhen the curtains were open, lightswere on, and Christmas decorations were around one ofthewindows. We affirm. FACTS Roberta Farrington lives in a retirement community. A "notrespassing" sign is posted on herstreet. One evening as Ms. Farrington was getting readyfor bed, she stood in her kitchen and looked out hersliding glass doors and saw Mr. Moser looking into her housefrom the street. The blinds on the glassdoorswere open and the lights
were on in the home; additionally, Ms. Farrington's kitchen window curtains were open with Christmas decorations around it. Mr. Moser made eye contactwith Ms. Farrington.No. 31155-4-111 State v. Moser
Ms. Farrington observed that Mr. Moserwas masturbating. Ms. Farrington called the police who soon found and arrested Mr. Moser. The State charged Mr. Moserwith indecent exposure and voyeurism. At a bench trial, Mr. Moserstipulated he knowinglyviewed Ms. Farrington forthe purpose of arousing his sexual desire, but he did not stipulate Ms. Farrington was in a placewhere she had a reasonable expectation ofprivacy. The courtfound Mr. Moserguilty ofboth charges. He solely appeals his voyeurism conviction. ANALYSIS The sole issue is whethersufficient evidence supports Mr. Moser'svoyeurism conviction. He contends the State failed to prove Ms. Farrington had a reasonable expectation ofprivacy inside her home, considering she had the blinds open, lights on, and Christmas decorations around one of herwindows. We review evidence insufficiency claims to determine whether any rational trier offact could havefound the essential elements ofthe charged crime beyond a reasonable doubt. State v. Salinas, 119Wn.2d 192, 201, 829 P.2d 1068 (1992). Evidence sufficiency challenges admitthe truth ofthe State's evidence and all reasonable inferences drawn from it. Id. After a bench trial, we determine whether substantial evidence supports the trial court's findings offact and, in turn, whetherthe findings supportthe conclusions of law. Perry v. Costco Wholesale, Inc., 123Wn. App. 783,792,98 P.3d 1264 (2004). Substantial evidence is evidence sufficientto persuade a fair-minded, rational person of

2No. 31155-4-111 State 

### v. Moser
the finding's truth. State 

### v. Solomon, 114Wn. App. 781. 789, 60 P.3d 1215 (2002). We consider unchallenged findings offact verities on appeal. and we review conclusions of lawde novo. Perry, 123Wn. App. at 792. In a criminal matter. the State must prove every element ofthe crime charged. State 

### v. Teal. 152Wn.2d 333, 337, 96 P.3d 914 (2004). To prove voyeurism, the State had to show Mr. Moser (1) knowingly viewed Ms. Farrington without her knowledge or consent while (2) she was in a place where she had a reasonable expectation of privacy, or that Mr. Moserviewed Ms. Farrington's intimate areas without her knowledge
or consentwhere she had a reasonable expectation ofprivacy, whether in a public or private place. RCW 9A.44.115(2). The State had to prove Mr. Moserviewed Ms. Farrington to arouse or gratify his sexual desires. RCW 9A.44.115(2). Mr. Moser stipulated that heviewed Ms. Farrington to arouse orgratify sexual desire, leaving the
narrowquestion ofwhether Ms. Farrington had a reasonable expectation ofprivacy within her home. RCW 9A.44.115(1)(c)(ii) clarifies that a place where a person would have a reasonable expectation ofprivacy is "[a] place where one may reasonably expectto be safe from casual or hostile intrusion or surveillance." No Washington legal authority is directly on point regarding whether a home with open blinds is a place where a person may reasonably expect to be safe from casual or hostile intrusion orsurveillance. But, it is well established that both thefederal and state constitutions provide protection against intrusions in the home. Indeed, in State v. Ferrier. 136 Wn.2d 103, 110,960



### 3No. 31155-4-111 State v. Moser
P.2d 927 (1998), our Supreme Court recognized the expectation ofprivacy in the home
as "clearly 'onewhich a citizen ofthis state should be entitled to hold,' because 'the home receives heightened constitutional protection.'" Id. at 118 (citations omitted). By comparison, in State v. Stevenson, 128Wn. App. 179, 195, 114 P.3d 699 (2005), Division Two ofthis court held sufficient evidence supported the defendant's conviction after he observed his daughterwalking through the family home's kitchen and then continued towatch herwhen she went into the bathroom to shower. In State
v. Diaz-Flores, 148Wn. App. 911, 919, 201 P.3d 1073 (2009), Division One ofthis court held sufficient evidence supported a voyeurism conviction when the defendant looked throllgh the blinds to watch a couple engage in sexual activity inside their home. Here, Ms. Farrington lived in a retirement community with a "no trespassing" sign posted on her nearby street. She was inside her home late at night, preparing to goto bed when she saw Mr. Moser masturbating while watching herthrough an open window. Although Ms. Farrington'sfactual situation is not identical to the victims in Stevenson and Diaz-Flores, she similarly had an expectation ofprivacy within her home; the record shows no facts tending to show Ms. Farrington invited or encouraged any diminishment in her expectation ofprivacy in her home. Indeed, leaving the blinds open, leaving the lights on, and decorating a window do not negate her privacy interests in any material way. Ms. Farrington was without a reasonable doubt in a place where she expected "to be safefrom casual

... surveillance" as setforth in RCW 9A44.115(1)(c)(ii).



### 4No. 31155-4-111 State v. Moser
Given all, we conclude Ms. Farrington had, underthese facts, an undiminished expectation ofprivacy within her home. Accordingly, we hold sufficient evidence exists to support Mr. Moser's voyeurism conviction. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public record pursuantto RCW 

### 2.06.040. Brown, 

### J. WE CONCUR:

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