Appeals court upholds upskirting conviction (UPDATE)

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A state court of appeals has ruled that a Grafton man was properly convicted for taking a photo up a woman’s skirt at a grocery store.

The District 2 Court of Appeals affirmed Wednesday an Ozaukee County Circuit Court jury’s conviction of Jesse Schmucker, of Grafton.

The jury on March 11, 2014, found Schmucker guilty of disorderly conduct and attempting to capture an image of nudity without the victim’s consent and while the victim had a reasonable expectation of privacy. He had been charged by prosecutors in 2013 after he placed his cellphone underneath a woman’s skirt while she was waiting in a grocery store checkout counter. Schmucker also took pictures.

Schmucker argued on appeal that he could not have violated Wis. Stat. 942.09(2)(am)1 because the victim was neither nude or partially nude, and the victim had no reasonable expectation of privacy while shopping at the grocery store. He also argued that he expected the victim to be wearing underwear, so there was no intent to violate the law.

But Judge Lisa Neubauer disagreed.

“It is no defense to an attempted crime that a factual impossibility has arisen that prevents the actor from committing the attempted crime,” she wrote in the Court of Appeals decision.

Neubauer noted that Schmucker had a criminal objective apparent in trial testimony. While Schmucker testified at trial that he took the pictures to see the victim’s underwear, he later testified that when he took pictures up women’s skirts, he did not know whether they were wearing underwear. There was also testimony that Schmucker told a police detective he was looking for replacement pornography because his computer had a filtering device that blocks inquiries for porn, and that he had installed the device because he was addicted to pornography.

Neubauer also rejected Schmucker’s argument that a woman in a public place “assumes the risk that other members of the public may view her from almost every angle or from any vantage point.” At the grocery store, the victim had a reasonable expectation that the area under her skirt would not be photographed, Neubauer wrote. Follow @erikastrebel