Court of Appeals of Indiana | Opinion 19A

- CR

- 934 | Sep tember 30, 2019 Page 1 of 6

A TTORNEY FOR A PPELLANT Randall J. Hammond Deputy Public Defender Leonard, Hammond, Thoma & Terrill Fort Wayne, Indiana A TTORNEY S FOR A PPELLEE 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

. S eptember 30, 2019 Court of Appeals Ca se 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 ofCourt of Appeals of Indiana | Opinion 19A

- CR

- 934 | Sep tember 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 r emove 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 o f 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 show e r. The first time she found the phone, it was p ropped 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 I ND
. C ODE § 35

- 4 5

- 4

- 5.Court of Appeals of Indiana | Opinion 19A

- CR

- 934 | Sep tember 30, 2019 Page 3 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 emot ional response” upon seeing it. (Tr. Vol. 1 at 227).

[5] Straw was arrested and charged w ith Level 6 felony voyeurism. 2 The charging information alleged that Straw had “kno wingly 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 w hile 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 | Sep tember 30, 2019 Page 4 of 6

apologized to K.T. and told her that “it [h ad 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 St raw 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 p eriod ; attend, participate in, and successfully complete a sexual perpetrator tr eat ment program ; not reside within 100 feet of school property ; not possess obscene matter or child pornography ; and not use a social netw orking site or chat room
to communicat e 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 conditi ons 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, 87 3 (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 | Sep tember 30, 2019 Page 5 of 6

[9] Straw argues that the trial court abused its discretion when it imposed a probation condition that required him to reg ister 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 I NDIANA C ODE § 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 no t 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] I NDIANA C O DE § 11

- 8

- 8

- 7 provides that a sex offender must register under that chapter. I NDIANA C ODE § 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 m olesting, ch ild exploitation, vicarious sexual gratification, child solicitation, child seduction, sexual misconduct with a minor, incest, and possession of child pornography. Voyeurism is not included in th is 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 Cars well , 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 | Sep tember 30, 2019 Page 6 of 6

those cases, which are clearly within its meaning and intention can be brou ght 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 order ing 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 relianc e 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 felo ny burglar y . Although burglary is not an enumerated offense u nder I NDIANA C ODE § 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 C lass 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 rapin g the victim it was under the trial court’s discretion under the facts of th at 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. Alt hough 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 order ing him to register as a sex offender as a condition of pro bation.