Rapist’s voyeurism conviction upheld

A Spokane appellate judge says a rapist who peered at a woman in a downtown restaurant toilet stall should have his voyeurism conviction overturned because he may not have looked at her long enough before she pulled up her pants and fled.

Washington Court of Appeals Court Judge John Schultheis said state law is ambiguous when it says voyeurism requires peeping “more than a brief period of time, in other than a casual or cursory manner.” In this case, the victim said the April 2005 incident in the women’s restaurant of Cyrus O’Leary’s happened “so fast,” Schultheis noted.

But 50-year-old Michael Burke Fleming’s June 2005 conviction was upheld Thursday when two other members of a three-judge panel – Kenneth Kato and Teresa Kulik – outvoted Schultheis.

Kato and Kulik said the law is “plain and unambiguous.”

They said more than a “brief period” passed while the victim noticed men’s shoes in the stall next to hers, saw the shoes disappear and looked up to see Fleming staring down at her and sticking out his tongue. Also, Kato and Kulik noted, there was time for the woman to scream and tell Fleming she had a cell phone, and for her to pull up her pants and grab her purse before fleeing.

Fleming was caught with a backpack that contained about a half-dozen items of women’s lingerie and an unused disposable camera. He also had five pornographic pictures in one of his pockets.

The crime occurred while Fleming was awaiting trial on a similar incident in November 2004 at a Denny’s restaurant in Spokane Valley.

About an hour after the jury convicted Fleming in the Cyrus O’Leary’s case, he pleaded guilty in the Denny’s case.

At the time, Fleming had eight felony convictions, dating from 1978 – mostly for incidents involving break-ins at women’s homes.

In one case, he climbed into a sleeping teenage girl’s bed and fondled her; in another, he pleaded guilty to second-degree rape of a woman.