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

ATTORNEY FOR APPELLANT

Randall J. Hammond

Deputy Public Defender

Leonard, Hammond, Thoma & Terrill

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Megan M. Smith

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Marty V. Straw,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 30, 2019

Court of Appeals Case No.

19A-CR-934

Appeal from the Allen Superior 

Court

The Honorable Wendy W. Davis, 

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 2 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.
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[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.
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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. 
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[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). 
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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.