                     COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia


CHARLES L. C'DEBACA, S/K/A
 CHARLES LEWIS C'DEBACA
                                           MEMORANDUM OPINION *
v.       Record No. 2754-97-4           BY JUDGE WILLIAM H. HODGES
                                             FEBRUARY 2, 1999
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       Marcus D. Williams, Judge
            James R. Tate (Tate & Bywater, Ltd., on
            brief), for appellant.

            Eugene Murphy, Assistant Attorney General
            (Mark L. Earley, Attorney General, on brief),
            for appellee.



     Charles L. C'Debaca, appellant, was convicted of violating

Code § 18.2-386.1(A).    On appeal, he contends that the trial

court erred by (1) admitting evidence of a videotape that was

seized in violation of the Fourth Amendment; (2) refusing to

allow appellant to have an expert witness examine the videotape

seized by the police; and (3) finding that Code § 18.2-386.1 is

not unconstitutionally vague and overbroad.    Appellant also

contends that his conduct did not violate Code § 18.2-386.1.     We

agree with appellant's assertion that his conduct did not violate

the statute.    Therefore, we reverse and dismiss the judgment of

the trial court.    Because we find that appellant's conduct did

not violate the statute, we need not address appellant's other
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
assignments of error.

                                FACTS

     While at the Fairfax County Fairgrounds, appellant carried a

videocamera concealed in a bag.   The victim, who was wearing a

dress, stood near a bandstand located on the fairgrounds.

Appellant placed the bag containing the camera near the feet of

the victim so that the camera lens pointed under and up the

victim's dress.   The victim asked appellant if the camera was

operating, and he replied that it was not.    The victim then

reported the incident to the police, who confiscated the

videotape.   The videotape contained a view of the victim's

undergarments.    Appellant admitted that he intentionally

videotaped under the victim's dress.     Appellant was convicted of

violating Code § 18.2-386.1(A).
                              ANALYSIS

     Code § 18.2-386.1(A) provides:
          It shall be unlawful for any person to
          videotape, photograph, or film any
          nonconsenting person if (i) that person is
          totally nude, clad in undergarments, or in a
          state of undress so as to expose the
          genitals, pubic area, buttocks or female
          breast in a restroom, dressing room, locker
          room, hotel room, motel room, tanning bed,
          tanning booth, bedroom or other location and
          (ii) the circumstances are otherwise such
          that the person being videotaped,
          photographed or filmed would have a
          reasonable expectation of privacy.


     Appellant argues that the evidence failed to prove that he

violated the statute because (1) the victim was in a public place



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at the time of the videotaping; (2) the victim was fully clothed

at the time of the taping; and (3) the victim had no reasonable

expectation of privacy while fully clothed and standing in a

public place.

     "Well-established 'principles of statutory construction

require us to ascertain and give effect to the legislative

intent.'   'The plain, obvious, and rational meaning of a statute

is always preferred to any curious, narrow or strained

construction.'"   Gilliam v. Commonwealth, 21 Va. App. 519,

522-23, 465 S.E.2d 592, 594 (1996) (citation omitted).
          "[I]t is our function to interpret the
          meaning of the words in controversy as
          intended by the legislature." However,
          "[u]nless there is ambiguity in a statute,
          there is no need for interpretation, for the
          province of construction lies wholly within
          the domain of ambiguity." "Words are
          ambiguous if they admit to 'being understood
          in more than one way[,]' . . . refer to 'two
          or more things simultaneously[,]' . . . are
          'difficult to comprehend,' 'of doubtful
          import,' or lack 'clearness and
          definiteness.'"

Id. at 522, 465 S.E.2d at 594 (citations omitted).

     "'[B]ecause the statute in question is penal in nature, it

must be strictly construed against the state and limited in

application to cases falling clearly within the language of the

statute.'"   Crews v. Commonwealth, 3 Va. App. 531, 536, 352

S.E.2d 1, 3 (1987) (citation omitted).

     Code § 18.2-386.1(A) states that it applies to a restroom,

locker room, dressing room, hotel room, motel room, tanning bed,




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tanning booth, bedroom, "or other location."   Because the phrase

"other location" is susceptible to more than one interpretation,

the language is ambiguous, and, therefore, appropriate for

judicial construction.

     The Commonwealth argues that the phrase "other location"

should be interpreted to include any area where one had an

expectation of privacy with respect to certain types of

photography.   The Commonwealth contends that, "[i]n any location,

a female would expect to be free from having a camera aimed up

her skirt."    Thus, the Commonwealth's interpretation broadens the

effect of the statute to cover any conceivable location, if a

person had a reasonable expectation of privacy in that location.
     "We cannot, however, consider statutory language out of

context . . . ."    Cape Henry Towers, Inc. v. Nat'l Gypsum Co.,

229 Va. 596, 603, 331 S.E.2d 476, 481 (1985).
          We are guided by two familiar and related
          principles of statutory construction. "Under
          the rule of ejusdem generis, when a
          particular class of persons or things is
          enumerated in a statute and general words
          follow, the general words are to be
          restricted in their meaning to a sense
          analogous to the less general, particular
          words." "Likewise, according to the maxim
          noscitur a sociis . . . when general and
          specific words are grouped, the general words
          are limited by the specific and will be
          construed to embrace only objects similar in
          nature to those things identified by the
          specific words."


Id. (citations omitted).

     The phrase "other location" is a general phrase placed at



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the end of a list of specific locations.   Thus, under the

doctrines of ejusdem generis and noscitur a sociis, we must look

to the specific terms that precede the general phrase "other

location" in order to interpret its meaning.   Those locations

specified in the statute share the common element of being sites

where a person could be partially or fully undressed and would

have an expectation of privacy--for example, when a person was

trying on clothes in a department store dressing room or changing

clothes in the locker room at a gym.    Accordingly, we conclude

that the general words "other location" do not apply to the

circumstances of appellant's case, where appellant videotaped a

fully clothed person standing in a public forum--the Fairfax

County Fairgrounds.
     "'In construing statutes, courts should give the fullest

possible effect to the legislative intent embodied in the entire

statutory enactment.'"    Adkins v. Commonwealth, 27 Va. App. 166,

170, 497 S.E.2d 896, 897 (1998) (citation omitted).   Considered

as a whole, the statutory language demonstrates a legislative

intent to deter the unauthorized photography of persons in a

state of undress while in private locations, such as dressing

rooms and locker rooms.   Nothing in the statute indicates that it

is intended to deter videotaping of persons standing in a public

location.

     Furthermore, the statute provides that it is unlawful to

videotape a nonconsenting person when that person "is totally



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nude, clad in undergarments, or in a state of undress so as to

expose the genitals, pubic area, buttocks or female breast

. . . ."   Code § 18.2-386.1(A)(i).     Appellant argues that the

victim was not dressed in a manner fitting one of these

descriptions.    The Commonwealth argues that the victim was "clad

in undergarments" for purposes of the statute because appellant

manipulated the videocamera so that he videotaped the victim's

undergarments.   However, it is a curious and strained

construction of the statute to conclude that the legislature

intended to proscribe the videotaping of the fully clothed victim

while she was standing in a public site, even though appellant's

contemptible method of videotaping was directed specifically

toward only the victim's undergarments.     Moreover, although

appellant aimed his camera so that the lens pointed up the

victim's dress, the victim had no reasonable expectation of

privacy while standing on the public fairgrounds.
     Accordingly, we find that although appellant's conduct was

reprehensible, it would violate sound principles of statutory

construction and strain the intent of the statute to hold that,

under the circumstances and facts of this appeal, appellant's

conduct violated Code § 18.2-386.1(A).     Therefore, we reverse and

dismiss appellant's conviction.

                                            Reversed and dismissed.




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