Stock photo: Torsten Dettlaff,


But Court of Appeals splits on what dissent sees as overly broad reading of ‘aperture’


A man convicted of surreptitiously videotaping a nude, sleeping woman cannot withdraw his guilty plea, the Court of Appeals ruled in a non-precedential opinion Monday.

But the court was split, with Judge Lucinda Jesson suggesting the majority so distorts the meaning of the word “aperture” beyond what Minnesota’s “peeping Tom” statute contemplates, that it potentially mars justice-system integrity.

Writing for the majority, Judge James B. Florey disagreed. Appellant Barry Ishmael McReynolds’ guilty plea was constitutionally valid and supported by the facts, he writes. His opinion was joined by Judge Tracy M. Smith.

The State Appellate Public Defender’s Office did not respond to a request for comment on a possible appeal of the split verdict to the Minnesota Supreme Court.


Case facts

McReynolds, 47, was charged in January 2019 with a gross misdemeanor count of interference with privacy in violation of Minn. Stat. § 609.746, subd. 1(b).

According to the West St. Paul Police Department’s statement of probable cause, McReynolds committed the offense after accompanying his victim to her West St. Paul home on their first date. The incident took place in April 2017.

The woman told police she was intoxicated that night. The next morning, McReynolds informed her that they’d had sex, according to the police statement, but she told officers she had no memory of it. She also told them that when she awoke, McReynolds asked her if he could have some photos of her. She refused, saying such photos can end up online.

Shortly after that, she told police, she found McReynolds texting nude photographs of her from her phone to his own. The victim asked him why he would do that and told him she didn’t want McReynolds to possess such photos.

He was later arrested and read his rights. He told an investigator that he had sex with the woman in her residence and took pictures and a video of her. He also said he tried not to make the woman aware of what he had done because she would have “fussed at me.”

Asked if the victim had told him no, the police statement says, he answered “probably.”

During a subsequent search of his phone, investigators found intimate video of a nude, sleeping woman with a tattoo on her back. The victim identified them as images of her own body. She said she never gave McReynolds permission to film her.


Guilty plea

At a District Court omnibus hearing, McReynolds sought a continuance, claiming untimely discovery and asking for permission to discharge his public defender. That was denied.

On the day trial was to begin, he sought a continuance to secure private counsel, but the District Court again told him no. He later pleaded guilty to interference with privacy and the trial court found sufficient factual basis to support that plea.

Before sentencing, McReynolds moved to withdraw his plea, Florey recounts, claiming he didn’t have adequate time to prepare and had felt coerced. The motion was denied. He was then convicted, but his sentence was stayed and McReynolds was placed on probation.

He appealed. When he did, McReynolds submitted a pro se supplemental brief—in addition to what his appellate attorney provided. It argued that McReynolds’ best interests would be served by withdrawing his plea. He gave “a confused statement” to investigators, he claimed, adding that his property was illegally taken, he was falsely arrested and he was maliciously prosecuted. The state moved to strike the pro se brief.

The Court of Appeals dispatched with that issue in a single paragraph, ruling that the claims it raised were forfeited. Writes Florey:

“Generally, we do not consider arguments on appeal that were not raised below.”


Court of Appeals Judge James B. Florey

Court of Appeals Judge James B. Florey

‘Any other aperture’

Most of the majority opinion dwells on whether McReynolds’ guilty plea was valid. Reviewing the statute, Florey found that it was. Its relevant subdivision reads:

“A person is guilty of a gross misdemeanor who . . . enters upon another’s property . . . surreptitiously installs or uses any device for observing, photographing, recording, amplifying or broadcasting sounds or events through the window or any other aperture of a house or place of dwelling of another, and. . . does so with intent to intrude upon or interfere with the privacy of a member of the household. [Emphasis added.]

McReynolds contended that his conduct couldn’t violate that statute, unless he shot images “through a window or one other opening connected to her apartment.” As he testified, McReynolds and the woman were in bed together, so his admissions didn’t support the crime charged.

The majority countered that the invasion-of-privacy statute’s text doesn’t define the phrase “any other aperture in a house or dwelling. So it looked to the dictionary, where it found “aperture” defined both as a “hole, gap or slit” and as an adjustable opening to let in light, like those found in cameras.

In the Minnesota Court of Appeals’ 2002 State v. Morris ruling, Florey notes, both definitions were used to interpret other subdivisions of the invasion-of-privacy statute. In that case, the appellant used a camera to shoot video up women’s skirts in a department store.

In the 2002 ruling, the court found the absence of a “window or other aperture” similar to what’s found in a bedroom was “a red herring.” Florey found McReynolds’ argument similarly unconvincing. He writes:

“Like the appellant in Morris, McReynolds used the aperture of S.C.A.D’s [the victim’s] cellphone’s camera to take photos of S.C.A.D. while she was in bed in her apartment, a ‘place of dwelling’ within the meaning of the statute. Further, McReynolds admitted that he did not inform S.C.A.D. that he was going to photograph her because he knew she would ‘fuss’ and would likely say no, revealing his intent to interfere with her privacy.”

To see things McReynolds’ way would lead to an absurd result, Florey writes. It would allow a guest in a room to record A resident at will, just so long as that person avoids shooting through a door, window or some other building “aperture.” He adds:

“In other words, it would remove residents’ reasonable expectation of privacy in their own home, an expectation that is supported by Minnesota and federal caselaw.”

Such a finding also would also be inconsistent with legislative intent and with the purpose of the statute, Florey finds.


Court of Appeals Judge Lucinda Jesson

Court of Appeals Judge Lucinda Jesson


Jesson begins her dissent by noting that no one should be photographed surreptitiously while asleep and she brands McReynolds’ conduct as “morally repugnant.”

But the question at issue is whether his conduct violates Minn. Stat. § 609.746, subd. 1(b). On direct examination of that law, Jesson finds, only one conclusion can be drawn: “It does not.”

Examining all four clauses of the subdivision, Jesson finds the law requires someone who enters a property to surreptitiously install or use any device to observe, record, photograph or broadcast sounds or events through the window or any other aperture of a house or place of dwelling, with the intent of interfering with the privacy of someone in the household. [Emphasis from Jesson’s dissent.]

Reynolds’ conduct is matches some of those clauses. Yet there is one problem, she writes:

“… [W]here was the photo taken? Not through a window, clearly. So we reach the crux of this case: Was the photo taken through ‘any other aperture of a house or place of dwelling?’”

To Jesson, the statute unambiguously contemplates that a photograph must be taken through an opening in the house or dwelling to violate the law. To expand that to a camera’s aperture—especially in a smart phone that can be used anywhere—would strip the statute’s location-based purpose of its intended effect, she writes.

Contradicting the majority, she contends statutory history bears out her findings. The law as it exists was passed in 1994, she writes, in an attempt to close a legal loophole that could be used to prevent prosecution of someone who, for instance, drills a hole in a crawlspace to take surreptitious photographs. She adds:

“Because the legislature directly addressed the purpose and intent of this amendment to involve openings—and not the mechanisms within a camera—my interpretation is far from ‘absurd.’”

In a footnote, Jesson adds that her interpretation would create no criminal-punishment void for the likes of McReynolds. He could have been prosecuted under Minn. Stat. § 617.261, which makes it illegal to intentionally disseminate images of another person’s intimate parts without consent.

Jesson ends her dissent by emphasizing that photos taken quickly and shared via social media—often leading to sexual exploitation—is a fundamental concern to her.

Still, she concludes:

“But I am further mindful of the integrity of our criminal justice system. We monitor pleas to ensure that we do not imprison people for crimes they did not commit. To expansively define “aperture” in this portion of section 609.746 would do just that—criminalize behavior that, while disturbing, was not intended to be in violation of this ‘peeping Tom’ statute.”

Session/Law logo by Kirk Anderson