When a man pointed his iPhone at a topless woman using a tanning booth in Middletown, he wasn’t attempting to video “under or through” her clothes, so he couldn’t be convicted of attempted voyeurism, an Ohio appeals court ruled.

The Twelfth District Court of Appeals reversed the Middletown Municipal Court’s conviction of David A. Reuss. Reuss argued the criminal code section used to convict him required the secret taping under or through another person’s clothing, and since the victim in this case was topless in the tanning booth and wearing only panties, there were no clothes to be videoing under or through.

Writing for the Twelfth District, Judge Robert R. Ringland found the court was “constrained to agree with Ruess’ argument,” with two of the three-judge panel admonishing the prosecution for charging Ruess under the wrong code section and allowing him to get away with a crime. Judge Robin N. Piper, in a concurring opinion, pointed the blame at the Ohio General Assembly, and urged lawmakers to fix a flaw in the law to protect people from being secretly filmed in a state of undress.

In October 2014, a woman named in court records as “K.B.,” was in a Palm Beach Tan booth in Middletown when she exited the bed topless and placed her cell phone on a nearby bench in the room. She glanced up and saw an iPhone being held above the partition wall separating patron rooms with the camera lense pointed at her. She covered herself, and yelled and banged on the partition. She leaned out of her room and banged on the adjoining room wall. Reuss opened the door, denied any wrongdoing, and swiftly exited.

Police arrested Reuss a few days later and charged him with one count of voyeurism, a first-degree misdemeanor. Following a bench trial, Reuss was convicted of attempted voyeurism, a second-degree misdemeanor. He was sentenced to 90 days in jail and ordered to register as a Tier I sex offender.

Reuss appealed to the Twelfth District stating the prosecution charged him with a local ordinance that mirrored the state statute, R.C. 2907.08(D). He argued the state failed to prove an essential element of that statute and it was physically impossible for him to violate the law.

R.C. 2907.08(D) reads: “No person shall secretly or surreptitiously videotape, film, photograph, or otherwise record another person under or through the clothing being worn by that other person for the purpose of viewing the body of, or the undergarments worn by, that other person.”

“This distinguishing feature of subsection (D) is that the recording or photographing is done under or through clothing being worn by the victim. Even assuming that Reuss stood on a bench, extended his phone over the partition, and recorded or photographed K.B., he did not do so under or through her clothing,” Judge Ringland wrote. “The absence of this element is fatal to the charge levied against Reuss.”

Judge Ringland asserted that Ruess should’ve been charged under subsection (A) or (B) of R.C. 2907.08. Subsection (A) prohibits a person from trespassing or secretly invading someone’s privacy to spy or eavesdrop on them. Subsection (B) prevents a person from secretly taping someone in a state of nudity.

However, as Judge Piper noted, both R.C. 2907.08 (A) and (B) require the additional element that perpetrator must be spying or secretly taping for the “purpose of sexually arousing or gratifying” themselves to be convicted of voyeurism. Section (D) doesn’t require proof of a sexual intent.

Judge Piper wrote the prosecution and trial court were “faced with a quandary” when there was no proof Reuss was doing the recording for sexual arousal or gratification. K.B. testified she couldn’t tell if the phone was operating when it was trained on her, and police were unable to recover any photographs or video from the seized phone. Ruess didn’t admit to filming K.B.

Without more evidence, the trial court could not convict Reuss of violating the voyeurism law, Judge Ringland wrote. The Twelfth District vacated the charges against him.

Judge Robert A. Hendrickson joined Judge Ringland’s opinion.

Judge Piper wrote that Ohio lawmakers need to examine the narrowness of R.C. 2907.08(D) so that secret taping of anyone in a state of nudity would be a violation without a need to prove it was for sexual gratification, and not just when it happens under or through clothing.

“As such, R.C. 2907.08 as written leaves a gap in the criminal statute, and forecloses the possibility of a conviction for situations similar to what happened here,” he concluded.

Middletown v. Reuss, 2016-Ohio-996.
http://www.supremecourt.ohio.gov/rod/docs/pdf/12/2016/2016-Ohio-996.pdf
Criminal Appeal from: Middletown Municipal Court
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: March 14, 2016

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