Opinion
No. 108,943.
2013-11-1
STATE of Kansas, Appellee, v. William Scott KOWALEWSKI, Appellant.
Appeal from Atchison District Court; Martin J. Asher, Judge. Andrew E. Werring, of Werring Law Office, LLC, of Atchison, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Atchison District Court; Martin J. Asher, Judge.
Andrew E. Werring, of Werring Law Office, LLC, of Atchison, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., MCANANY and POWELL, JJ.
MEMORANDUM OPINION
LEBEN, J.
William Kowalewski appeals his breach-of-privacy conviction, contending that he wasn't in a private place when he was peering in a neighbor's window. But to get to that spot on the side of his neighbor's home where the window was located, Kowalewski had to walk up the steps to the home, move to the side of the house, and step onto a concrete slab next to the home—all so that he could peer into the home through a window elevated 5 to 6 feet off the ground.
For breach-of-privacy purposes, Kansas law defines a private place as one in which a person may reasonably expect to be safe from surveillance or uninvited intrusion.
We conclude that Kowalewski was in a private place for purposes of the Kansas breach-of-privacy statute, and that the private character of the location where Kowalewski stood is not eliminated even if the resident of a neighboring home might be able to look out of a window from that house and see into the victim's home.
We therefore affirm his conviction for breach of privacy.
Factual and Procedural Background
Donna Schwarz was reclining on the sofa in her living room watching television when she noticed someone peering in her window. She didn't know how long he had been there, but she eventually noticed a man's face “right up against” the outside of the window pane. Schwarz jumped up from the couch and ran out the front door of her home. She confronted William Kowalewski, who was leaving her property. She asked him why he was looking into her window; he replied that he was looking for his dog. He left and went into a residence across the street. She called the police. Kowalewski was charged with breach of privacy, a class A misdemeanor, in violation of K.S.A.2012 Supp. 21–6101(a)(3).
Kowalewski's trial was to the district court sitting without a jury, and Schwarz was the only witness. Accordingly, the facts presented here come from her testimony and a set of photographs of her house that were introduced into evidence.
Schwarz described the route Kowalewski had to take to get to the spot where he looked into her window. He would have walked up some steps and a sidewalk from the street. He then had two ways to get to the window from which he was seen looking in. One would have been to leave the sidewalk partway to the house, go onto her yard through an opening in a decorative fence that runs alongside the sidewalk, and then take up his spot on the side of the house (though only a few feet from the front). The other would have been to first go onto the front porch, then to step down onto a raised concrete slab to the side of the porch, and then to step down once again onto the concrete slab that's under the side window. From that spot, Kowalewski then began looking into a window that was 5 to 6 feet off the ground. Our record does not disclose his height; the photos do show a cinder block that might have been used to help, if needed, in looking into the window. Schwarz also confirmed the obvious—she didn't give Kowalewski permission to be peering into her window.
The district court found Kowalewski guilty. The State asked that the defendant be sentenced to 1 year in jail because he had two prior convictions for window-peeping, charged as eavesdropping under the statutory predecessor to the present breach-of-privacy statute. In a discussion during sentencing between the defendant and the trial judge, the defendant admitted that he had been sentenced to 1 year in jail on each of the prior offenses. The district court sentenced Kowalewski to 1 year in jail for the present conviction. Kowalewski has appealed to this court, alleging that the evidence wasn't sufficient to convict him.
Analysis
Kowalewski contends that his conviction should be reversed because the evidence wasn't sufficient to show that he had committed a breach of privacy under K.S.A.2012 Supp. 21–6101(a)(3). A breach of privacy under that statute “is knowingly and without lawful authority: ... (3) entering with intent to listen surreptitiously to private conversations in a private place or to observe the personal conduct of any other person or persons entitled to privacy therein.” Kowalewski makes two arguments: first, that the State failed to prove he lacked “lawful authority” to be at the side of Schwarz' house, and second, that the State failed to prove that he was in “a private place.”
His first objection can be quickly set aside. In addition to Schwarz, there was another person who lived in the house—the occupant of a basement apartment. The State presented Schwarz' testimony that she hadn't given Kowalewski permission to stand where he could peer in her living-room window. But Kowalewski argues that permission “could have been granted” by the apartment occupant and that the State didn't prove a lack of permission from that person.
When the sufficiency of the evidence is challenged in a criminal case, we look at the evidence in the light most favorable to the State since the fact-finder, here the district judge, has ruled in the State's favor after hearing the evidence. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). The fact-finder here could readily conclude that the resident of the basement apartment would have no authority to give permission to someone to stand at the side of the house—where the photos admitted into evidence show that there was no access point to the basement apartment—so that the person could look into a living-room window that stood 5 to 6 feet off the ground. The State wasn't required to present testimony from the apartment occupant to show that Kowalewski lacked lawful authority to be where he stood to look into the living-room window. Schwarz' testimony was sufficient on that point.
To consider Kowalewski's second objection—that the State failed to prove he was in “a private place”—we need to briefly discuss a change in the statutory language made in 2011. Kowalewski committed this offense in May 2012, and the statutory change made in July 2011 factors into the parties' arguments.
Before July 2011, the offense called eavesdropping in the Kansas criminal statutes included a provision making unlawful “knowingly and without lawful authority: (1) Entering into a private place with intent to listen surreptitiously to private conversations or to observe the personal conduct of any other person or persons therein.” K.S.A. 21–4001(a)(1). Comparison of the pre-July 2011 statute with the current one shows that the legislature made two changes—moving the location of “into a private place” (while changing “into” to “in”) in the sentence and adding the phrase “entitled to privacy”:
Pre–July 2011 statute: “Entering into a private place with intent to listen surreptitiously to private conversations or to observe the personal conduct of any other person or persons therein.” (Emphasis added.) K.S.A. 21–4001(a)(1).
Post–July 2011 statute: “[E]ntering with intent to listen surreptitiously to private conversations in a private place or to observe the personal conduct of any other person or persons entitled to privacy therein.” (Emphasis added.) K.S.A.2012 Supp. 21–6101(a)(3).
The State argues that the change in the location of the words “in a private place” was made so that it would refer only to the first part of the sentence. As the State reads this statute, it can be violated in either of two ways:
• Entering with intent to listen surreptitiously to private conversations in a private place, or
• Entering any place to observe the personal conduct of any other person or persons entitled to privacy therein,
But Kowalewski contends that both parts of the statute—surreptitious listening and surreptitious observing—require that the violator be “in a private place.” The district court did not directly rule on how the statute should be interpreted but found, as a factual matter, that the place where Kowalewski stood was a private place under the statute.
We need not determine in this case whether the State's interpretation of the statute is preferable to Kowalewski's because we agree with the district court that Kowalewski was in a private place. Accordingly, under either interpretation of the statute, there was sufficient evidence to convict Kowalewski of violating the statute.
K.S.A.2012 Supp. 21–6101 defines “private place” as “a place where one may reasonably expect to be safe from uninvited intrusion or surveillance.” Under that definition, if the place is one where a person may reasonably expect to be safe from either “uninvited intrusion” or “surveillance,” that would be a private place. In our view, it's a reasonable expectation that no one will be standing at the side of your home peering into your living-room window.
Kowalewski argues that this would criminalize lots of ordinary conduct, such as a the conduct of a neighbor who can see into the windows next door or the conduct of a passer-by on the street who can see through windows on the front of a house. But Kowalewski overlooks the separate requirement of the breach-of-privacy statute that the violator must first have entered “to observe the personal conduct” of another person. A neighbor wouldn't enter his or her own home “to observe the personal conduct” of those in the next-door home; if the neighbor can see into the next-door home, that's incidental to simply living there. Moreover, to the extent that one's windows are without blinds or curtains and a neighbor is easily able to see in, the resident may not “reasonably expect to be safe” from surveillance by the neighbor. The same is true with regard to passers-by on the street if you leave the blinds or curtains open on the front window to your house.
But Kowalewski had entered onto his neighbor's property to observe the neighbor's personal conduct—and she had a reasonable expectation that no one would be peering in the window on the side of her house from a standing position immediately next to the house. Thus, the place where Kowalewski stood was a private place. So even if we follow Kowalewski's interpretation of the breach-of-privacy statute (under which the observer must be in a private place), the State's evidence was sufficient to convict him.
We therefore affirm the district court's judgment.