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Evidence was sufficient to convict defendant for attempted “upskirting”

State v. Jesse L. Schmucker, 2014AP165-CR, District 2, 4/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The evidence was sufficient to sustain the jury’s finding of guilt of an attempt to violate § 942.09(2)(am)1., which criminalizes capturing a representation that depicts nudity without the knowledge or consent of the person who is depicted nude in circumstances where that person had a reasonable expectation of privacy, even though the victim was not nude and the offense occurred while the victim was in the check-out line at a grocery store.

Schmucker attacks the sufficiency of the evidence to prove two elements. The first element is that the representation depict “nudity” as defined in § 948.11(1)(d). See § 942.09(1)(b). Schmucker said he was trying to get a picture of the victim’s underwear, and, he argues, because she was wearing underwear it was factually impossible for him to commit the offense. (¶¶2, 5). But it is no defense to an attempt crime that a fortuitous factual impossibility has arisen that prevents the actor from committing the intended crime, e.g., State v. Kordas, 191 Wis. 2d 124, 127-29, 528 N.W.2d 483 (Ct. App. 1995). Thus:

¶8        …. There were sufficient facts to show that Schmucker took acts to further his criminal objective. Regarding Schmucker’s actual intent, Schmucker testified at trial that he took the picture because he wanted to see the victim’s underwear, and he argues on appeal that underwear would be expected, and thus was not an unknown impossibility. But there was also testimony that when he took pictures up women’s skirts, Schmucker had no idea whether they would be wearing underwear or not. There was testimony that Schmucker told a police detective that he was seeking replacement pornography because his computer had a filtering device that would block inquiries for porn. Schmucker told the detective that he had installed the filter and that he had an addiction to pornography. In denying the motion to dismiss prior to trial, the trial court understood pornography to mean “printed or visual material containing the explicit description or display of sexual organs or activity,” and the jury could have used a similar understanding to conclude that under the circumstances Schmucker was attempting to capture an image of the victim’s nude buttocks or genitalia. ….

As to the element requiring the depiction be made in circumstances in which the victim has a reasonable expectation of privacy, the fact she was in the check-out line at the grocery store doesn’t render the evidence insufficient:

¶12      We agree with the trial court that a jury could reasonably conclude that the victim had a reasonable expectation of privacy regarding surreptitious photographs taken of the private area underneath her skirt in a public place. We reject Schmucker’s argument that a woman in a public place “assumes the risk that other members of the public may view her from almost any angle or from any vantage point.” The facts here were sufficient for the jury to determine that the woman had a reasonable assumption under the circumstances that her pubic area and buttocks were secluded from the view, and the photography, of others. We reject Schmucker’s argument that, as a matter of law, a woman relinquishes her reasonable expectation of privacy from being photographed without knowledge or consent underneath her skirt because she is in a public place.

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