Marty v. Straw v. State of Indiana

FILED Sep 30 2019, 9:05 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Randall J. Hammond Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Leonard, Hammond, Thoma & Terrill Megan M. Smith Fort Wayne, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marty V. Straw, September 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-934 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff. Judge Trial Court Cause No. 02D04-1804-F6-403

Pyle, Judge.

Statement of the Case [1] Marty Straw (“Straw”) appeals the trial court’s order requiring him, as a

condition of probation, to register as a sex offender after he was convicted of

Court of Appeals of Indiana | Opinion 19A-CR-934 | September 30, 2019 Page 1 of 6

Level 6 felony voyeurism.1 Concluding that the trial court abused its discretion

when it ordered Straw to register as a sex offender, we reverse and remand with

instructions for the trial court to remove the sex offender registration

requirement as a condition of Straw’s probation. [2] We reverse and remand with instructions.

Issue Whether the trial court abused its discretion when it ordered Straw to register as a sex offender after he was convicted of voyeurism.

Facts [3] When K.T. (“K.T.”) was a freshman in high school, she lived with her father,

Straw. During that time, K.T. twice found her father’s phone in the bathroom

when she went in the room to shower. The first time she found the phone, it

was propped up on the counter facing the shower and was recording her. K.T.

deleted the video. The second time she found the phone, it was propped up in a

bathroom decoration with some towels and clothes on top of it. As soon as

K.T. saw the camera, she left the bathroom. Another day, while closing tabs on

Straw’s phone, K.T. noticed on the phone a photograph of the top half of her

body from her head to her waist. K.T. was wearing nothing but a bra.

1 IND. CODE § 35-45-4-5.

Court of Appeals of Indiana | Opinion 19A-CR-934 | September 30, 2019 Page 2 of 6 [4] K.T. eventually told her mother what had been happening at Straw’s house. A

Department of Child Services (“DCS”) case worker and a Fort Wayne Police

Department Officer interviewed K.T., and a digital forensics examiner analyzed

Straw’s phone. Following the phone analysis, a detective showed the photos

that had been found on the phone to K.T. Straw had taken one of the photos, a

picture of K.T. in her underwear, by sliding his camera under his daughter’s

bedroom door. K.T., who was unaware that the photograph had been taken,

showed “a clear emotional response” upon seeing it. (Tr. Vol. 1 at 227). [5] Straw was arrested and charged with Level 6 felony voyeurism.2 The charging

information alleged that Straw had “knowingly or intentionally peep[ed] into

an area where an occupant of the area reasonably c[ould] be expected to disrobe

without the consent of another person, by means of a camera, video camera, or

any other type of video recording device[.]” (App. Vol. 1 at 16). [6] At a jury trial, K.T. testified that Straw would frequently wrestle with her and

press his penis against her while they were wrestling. K.T. further testified that

one time Straw touched her vagina outside her clothing while they were

wrestling. In addition, K.T. testified that on another occaision she had gone

into the kitchen while Straw was eating some crackers. According to K.T.,

Straw had crumbled the crackers, cupped his hand with the crackers in it, and

put his hand down the front of K.T.’s pants under her underwear. Straw later

2 Straw was also charged with and acquitted of Level 5 felony sexual misconduct with a minor.

Court of Appeals of Indiana | Opinion 19A-CR-934 | September 30, 2019 Page 3 of 6

apologized to K.T. and told her that “it [had gone] too far[.]” (Tr. Vol. 1 at

154). [7] A jury convicted Straw of voyeurism. During the sentencing hearing, the trial

court sentenced Straw to two (2) years and sixty (60) days, with the two (2)

years suspended to probation. The trial court further ordered Straw to comply

with the standard conditions of probation as well as a probation addendum

order. Pursuant to the terms of the addendum order, Straw was required to

register as a sex offender; complete an electronic monitoring supervisory period;

attend, participate in, and successfully complete a sexual perpetrator treatment

program; not reside within 100 feet of school property; not possess obscene

matter or child pornography; and not use a social networking site or chat room

to communicate with a child less than sixteen years old. Straw now appeals the

imposition of the condition that required him to register as a sex offender.

Decision [8] “Probation is a criminal sanction wherein a convicted defendant specifically

agrees to accept conditions upon his behavior in lieu of imprisonment.”

Carswell v. State, 721 N.E.2d 1255, 1258 (Ind. Ct. App. 1999). Trial courts have

broad discretion in determining the appropriate conditions of a defendant’s

probation. Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans.

denied. We will not set aside a trial court’s probation terms unless it has abused

its discretion. Id.

Court of Appeals of Indiana | Opinion 19A-CR-934 | September 30, 2019 Page 4 of 6 [9] Straw argues that the trial court abused its discretion when it imposed a

probation condition that required him to register as a sex offender. He

specifically contends that the trial court abused its discretion because the crime

for which he was convicted, voyeurism, is not listed as an offense requiring sex

offender registration under INDIANA CODE § 11-8-8-4.5. He is correct.3 [10] The law is well-established that criminal statutes must be strictly construed

against the State and may not be enlarged beyond the fair meaning of the

language used. Jackson v. State, 570 N.E.2d 1344, 1347 (Ind. Ct. App. 1991),

trans. denied. In addition, criminal statutes may not be held to include offenses

other than those clearly defined. Id. [11] INDIANA CODE § 11-8-8-7 provides that a sex offender must register under that

chapter. INDIANA CODE § 11-8-8-4.5 defines a sex offender as a person

convicted of any of the offenses set forth in the statute. These offenses include,

among others, child molesting, child exploitation, vicarious sexual gratification,

child solicitation, child seduction, sexual misconduct with a minor, incest, and

possession of child pornography. Voyeurism is not included in this list of

offenses. Nor was Straw convicted of any of the offenses enumerated in the

statute. When the legislature defines a word, the courts are bound by that

definition. State v. D.M.Z., 674 N.E.2d 585, 588 (Ind. Ct. App. 1996). Only

3 We affirm all other conditions in the addendum order because they are reasonably related to Straw’s rehabilitation and the protection of public safety. See Carswell, 721 N.E.2d at 1258 (holding that our review of probation conditions is limited by the principal that the conditions imposed must be reasonably related to the treatment of the defendant and the protection of public safety).

Court of Appeals of Indiana | Opinion 19A-CR-934 | September 30, 2019 Page 5 of 6

those cases, which are clearly within its meaning and intention can be brought

within the statute. Id. [12] Here, the legislature did not include a person convicted of voyeurism in its

definition of sex offender. It could have easily done so but chose not to do so.

A trial court is without authority to order a person who has not been convicted

of one of the offenses set forth in the statute to register as a sex offender.

Accordingly, the trial court abused its discretion in ordering Straw to register as

a sex offender as a condition of his probation.4 [13] Reversed and remanded with instructions.

Robb, J., and Mathias, J., concur.

4 The State’s reliance on Whitener v. State, 982 N.E.2d 439 (Ind. Ct. App. 2013), trans. denied, is misplaced. There, this Court affirmed the trial court’s order that Whitener register as a sex offender as a condition of his probation following his conviction for Class A felony burglary. Although burglary is not an enumerated offense under INDIANA CODE § 11-8-8-4, the underlying felony that Whitener intended to commit when committing the burglary was rape, which is an enumerated offense. Id. We further noted that Whitener had been found guilty of committing rape as a Class B felony, and the trial court had vacated his conviction based upon double jeopardy principles. Thus, we concluded that because Whitener’s crime involved the act of raping the victim it was under the trial court’s discretion under the facts of that case to order that he register as a sex offender as a condition of his probation. Id. Here, however, Straw was convicted of voyeurism, which is not an enumerated offense. Although he was charged with sexual misconduct with a minor, which is an enumerated offense, he was acquitted of that charge. Under these circumstances, the trial court abused its discretion in ordering him to register as a sex offender as a condition of probation.

Court of Appeals of Indiana | Opinion 19A-CR-934 | September 30, 2019 Page 6 of 6