                                IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                  v.

                  AGUSTIN GONZALEZ GONGORA,
                           Appellant.

                      No. 2 CA-CR 2013-0096
                       Filed June 23, 2014


         Appeal from the Superior Court in Pima County
                      No. CR20113303001
           The Honorable Howard Hantman, Judge

                           AFFIRMED


                               COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee

Sherick & Bleier, PLLC
By Steven P. Sherick, Tucson
Counsel for Appellant
                        STATE v. GONGORA
                         Opinion of the Court



                              OPINION

Judge Miller authored the decision of the Court, in which Presiding
Judge Vásquez and Chief Judge Howard concurred.



M I L L E R, Judge:

¶1           Agustin Gongora was convicted after a jury trial of one
count of voyeurism, after which the trial court suspended sentence
and imposed a term of four years’ probation. On appeal, he
contends there was insufficient evidence to support his conviction
because the state failed to prove the victim had a reasonable
expectation she would not be viewed. For the following reasons, we
affirm the conviction and sentence.

                Factual and Procedural Background

¶2           We view the evidence in the light most favorable to
sustaining the jury’s verdict. See State v. Haight-Gyuro, 218 Ariz. 356,
¶ 2, 186 P.3d 33, 34 (App. 2008). In September 2011, while C.H. was
shopping in a store, Gongora walked up behind her, crouched
down, and looked up her dress. The store’s loss prevention
detective witnessed the incident and it was recorded by the store’s
security cameras. The store manager asked Gongora to leave the
store, and the loss prevention detective wrote down his license plate
number when he drove away.

¶3           After Gongora was arrested, he admitted to police that
he looked up C.H.’s dress and said “it was like a romantic thing.”
At trial he maintained that the state failed to prove all elements of
the offense of voyeurism, filing a motion to dismiss and a motion for
judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P., both of
which were denied. The jury found him guilty pursuant to A.R.S. §
13-1424, specifically subsection C(2)(d), which prohibits “viewing a
person in a manner that . . . allows the viewing of the person’s
genitalia, buttock or female breast, whether clothed or unclothed,


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                        STATE v. GONGORA
                         Opinion of the Court

that is not otherwise visible to the public.” Gongora again moved
for judgment of acquittal, which the trial court denied. Gongora
received four years’ probation, as noted above, and deferred
registration to the sex offender registry.

  Sufficiency of the Evidence to Support Voyeurism Conviction

¶4           Gongora argues the plain language and legislative
history of the voyeurism statute, A.R.S. § 13-1424, require that the
victim reasonably expect not to be viewed from any perspective
before a jury could convict a defendant of voyeurism. From this
statutory reading, he contends the state presented insufficient
evidence that C.H. reasonably expected not to be viewed because the
incident occurred while C.H. was in a store where she could be
viewed by other customers and employees. Gongora concedes the
facts are not in dispute, and both parties agree C.H. was in a retail
store open to the public at the time of the viewing, therefore the
sufficiency of the evidence argument relies solely on our
interpretation of the voyeurism statute.

¶5           Interpretation of a statute requires de novo review.
State v. George, 206 Ariz. 436, ¶ 6, 79 P.3d 1050, 1054 (App. 2003).
“‘We interpret statutes to give effect to the legislature’s intent.
When a statute is clear and unambiguous, we apply its plain
language and need not engage in any other means of statutory
interpretation.’” State v. Arellano, 213 Ariz. 474, ¶ 9, 143 P.3d 1015,
1018 (2006), quoting Kent K. v. Bobby M., 210 Ariz. 279, ¶ 14, 110 P.3d
1013, 1017 (2005).

¶6           Under A.R.S. § 13-1424, it is a criminal offense to
“knowingly invade the privacy of another person without the
knowledge of the other person for the purpose of sexual
stimulation.” Subsection C defines an invasion of another person’s
privacy as follows:




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                        STATE v. GONGORA
                         Opinion of the Court

            For the purposes of this section, a person’s
            privacy is invaded if both of the following
            apply:

            1. The person has a reasonable expectation
               that    the   person    will  not    be
               photographed,     videotaped,   filmed,
               digitally recorded or otherwise viewed
               or recorded;

            2. The      person   is    photographed,
               videotaped, filmed, digitally recorded
               or otherwise viewed, with or without a
               device, either:

                   a. While the person is in a state of
                      undress or partial dress.

                   b. While the person is engaged in
                      sexual intercourse or sexual
                      contact.

                   c. While the person is urinating
                      or defecating.

                   d. In a manner that directly or
                      indirectly captures or allows
                      the viewing of the person’s
                      genitalia, buttock or female
                      breast, whether clothed or
                      unclothed,     that    is   not
                      otherwise visible to the public.

¶7           The voyeurism statute was added in 2006, and we have
not yet interpreted it in a published case. 2006 Ariz. Sess. Laws ch.
146, § 1. Gongora relies on State v. Glas, 54 P.3d 147 (Wash. 2002), to
support his argument that the plain language requires a victim to
reasonably expect not to be viewed at all. In Glas, Washington’s
former voyeurism statute criminalized taking photographs of a
person “while the person . . . is in a place where he or she would
have a reasonable expectation of privacy.” Id. at 149. Relying on the

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                        STATE v. GONGORA
                         Opinion of the Court

word “place,” the Washington Supreme Court rejected a reading of
its statute that would protect the right of persons to control exposure
of their bodies in a public space. Id. at 150. Therefore, it concluded
an “upskirt” photo taken in a public location was not prohibited
under the Washington statute. Id. In its analysis, the court
compared the Washington statute’s requirement that a victim be “in
a place where he or she would have a reasonable expectation of
privacy” with a California voyeurism statute that applied “under
circumstances in which the other person has a reasonable
expectation of privacy,” finding the latter statute “le[ft] the option
open to include” acts committed in “public places.” Id. at 151-52.

¶8           Although Gongora concedes that Arizona’s voyeurism
statute does not explicitly refer to a “place,” he contends its
language implicates the location of the victim, making Glas
applicable. We disagree. The court in that case specifically relied on
the inclusion of the word “place” in the statute, finding that it
grammatically “[did] not make sense to apply . . . to a part of a
person’s body.” Id. at 150. The language of Arizona’s statute does
not include such a narrow requirement.

¶9           Moreover, the statute’s language does not require that
the person reasonably expect not to be viewed from any perspective,
as Gongora argues. Rather, § 13-1424(C)(1) requires that the person
has a reasonable expectation that she will not be viewed in a manner
described under § 13-1424(C)(2). A fully-clothed person in a public
place has a reasonable expectation that the public will not be able to
view parts of her body as if she were not clothed. Thus, the plain
language of Arizona’s voyeurism statute includes an offense
committed while the victim is in a public place.

¶10           Gongora also contends the statute’s legislative history
supports his interpretation. But legislative history and other means
of statutory interpretation are irrelevant and unnecessary when a
statute’s language is clear and unambiguous, absent a “‘clearly
expressed legislative intent to the contrary.’” State v. Estrada, 201
Ariz. 247, ¶ 19, 34 P.3d 356, 360 (2001), quoting Mail Boxes, Etc.,
U.S.A. v. Indus. Comm’n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995).
We therefore address Gongora’s argument to determine if there is a
clear legislative intent contrary to the plain language.

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                        STATE v. GONGORA
                         Opinion of the Court

¶11          Gongora’s primary legislative history argument relies
on draft versions of the statute. See State v. Barnard, 126 Ariz. 110,
112, 612 P.2d 1073, 1075 (App. 1980) (successive drafts may be
instructive in determining the intent of the legislature).          As
originally introduced, Senate Bill 1039 added the voyeurism statute
with language similar to its current form, and amended an existing
surreptitious photographing statute, A.R.S. § 13-3019, to criminalize
mere “view[ing]” without a camera or other device, and to add “in
the area underneath a person’s skirt” to the list of “circumstances” in
which such viewing would be a violation of the statute.1 S.B. 1039,
Introduced Version, 47th Legis., 2d Reg. Sess. (2006). Before
approving the bill, the senate removed the reference to a person’s
skirt and amended the statute to include a violation when a person
is viewed “in a manner that directly or indirectly captures or allows
the viewing of the person’s genitalia, buttock or female breast,
whether clothed or unclothed, that is not otherwise visible to the
public,” consistent with the provision included in the then-proposed
voyeurism statute. A.R.S. § 13-3019; see also S.B. 1039, Senate
Engrossed Version, 47th Legis., 2d Reg. Sess. (2006).

¶12         Gongora contends the reference to “upskirt” viewing in
the initial draft of the surreptitious photographing statute
demonstrates that the legislature intended upskirt viewing to be
limited to a surreptitious photography offense. 2 To the contrary,


      1Until the 2006 amendment, the surreptitious photographing
statute required use of a device and that the victim be in a place
where he or she would reasonably expect privacy, such as a
“restroom, bathroom, locker room . . . [or] bedroom,” or that the
person be “urinating, defecating, dressing, undressing, nude or
involved in sexual intercourse or sexual contact.” 2000 Ariz. Sess.
Laws ch. 189, § 23.
      2 The   practical effect of Gongora’s argument is a reduced
penalty. His offense would be a class six felony under the
surreptitious photographing statute, rather than a class five felony
with sex offender registration at the discretion of the judge under
the voyeurism statute. See A.R.S. §§ 13-1424(E) (voyeurism a class
five felony), 13-3019(E) (surreptitious viewing without device a class

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                         STATE v. GONGORA
                          Opinion of the Court

however, removing the reference to a person’s skirt from the final
bill strongly suggests the legislature did not intend such a narrow
scope. Lancaster v. Ariz. Bd. of Regents, 143 Ariz. 451, 458, 694 P.2d
281, 288 (App. 1984) (“‘Omission on final enactment of [a] clause of
[the] bill originally introduced is strong evidence that [the]
Legislature did not intend [the] omitted matter should be
effective . . . .”), quoting State Bd. of Barber Exam’rs v. Walker, 67 Ariz.
156, 164, 192 P.2d 723, 728 (1948). Additionally, we review the bill
actually passed. The enacted statute required that the more serious
offense of voyeurism be “for the purpose of sexual stimulation,”
which is not found in the surreptitious photographing statute. 3
Compare A.R.S. § 13-1424(A) with A.R.S. § 13-3019(A). Accordingly,
the legislative history of the voyeurism statute does not indicate an
intent contrary to its plain language, which includes offenses
committed in a public place.

                               Disposition

¶13         For the foregoing reasons, we affirm Gongora’s
conviction and sentence.




six felony), 13-3821(C) (discretionary sex offender registration for
chapter 14 violations).
      3Gongora   also relies on a statement in the Final Amended Fact
Sheet for Senate Bill 1039 that circumstances giving rise to an offense
include “when a person is in a . . . location where the person has a
reasonable expectation of privacy . . . .” That statement, however, is
in the “Background” section of the fact sheet and is describing the
former surreptitious photographing statute, not the amendments.
Further, “[t]he law is the legislation, not the fact sheets or bill
summaries.” Hounshell v. White, 219 Ariz. 381, ¶ 24, 199 P.3d 636,
643 (App. 2008).


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