« Courts - "New federal judge in Iowa accused of acting as "prosecutor-in-chief" at sentencing" | Main | Courts - "Obama nominates Muncie native to Court of Appeals" »

Thursday, June 06, 2013

Ind. Courts - "Supreme Court to review child exploitation charges"

In David Delagrange v. State, a Jan. 25, 2013 2-1 Court of Appeals opinion, the majority wrote:

On February 27, 2010, Delagrange, outfitted with video camera mounted to his shoe and controlled through an apparatus in his pants, traveled to Castleton Square Mall in Indianapolis. Once at the mall, Delagrange recorded images of the area beneath the skirts of several females, four of whom were minors. Delagrange’s conduct triggered concern, and a store manager contacted an off-duty police officer. The officer approached Delagrange, who attempted to flee. Delagrange was immobilized with a taser and arrested. The State subsequently charged Delagrange with four counts of Class C felony attempted child exploitation, ten counts of Class D felony voyeurism, and Class A misdemeanor resisting law enforcement. * * *

After Delagrange committed these acts, the legislature amended Ind. Code § 35-45-4-5 to include a new crime, “public voyeurism.” P.L. 75-2011, Sec. 1. That section provides: “A person who: (1) without the consent of the individual; and (2) with intent to peep at the private area of an individual; peeps at the private area of an individual and records an image by means of camera commits public voyeurism, a Class A misdemeanor.” Ind. Code § 35-45-4-5(d) (2011).

[ILB: See the 2011 amendment and what it changed here, at PL 75-2011 (SEA 19), which took effect July 1, 2011]

Due process prohibits Delagrange’s convictions under the statutes that existed at the time of his actions, though it appears similar acts in the future could be punished as public voyeurism. As the statutes in force when Delagrange committed his acts required conduct by the child, we are compelled to reverse his convictions and remand, as there was no evidence any of the minors were involved in the type of conduct required by the child exploitation statute.

The Supreme Court granted transfer on April 18, 2013.

Today Sophia Voravong reports in the Lafayette Journal Courier:

An Indiana Supreme Court ruling in a voyeurism case out of Marion County could determine what criminal charges a former Lafayette pastor will face for allegations that he hid cameras in bathroom stalls at his church.

Robert A. Lyzenga, 56, is charged in Tippecanoe Superior Court 1 with five counts of child exploitation, a Class C felony, and five counts of voyeurism by means of a camera, a Class D felony. * * *

On April 29, Lyzenga’s attorney, Kent Moore, filed a motion to dismiss the child exploitation charges on grounds that it did not amount to a crime. That was based on a recent Indiana Court of Appeals ruling for David Delagrange, which determined that the phrasing of Indiana’s child exploitation statute “demands that the child be performing the sexual conduct.”

But the Indiana Supreme Court has agreed to hear Delagrange’s case — making the Court of Appeals opinion moot, Tippecanoe County deputy prosecutor Emily Orsinger argued in her response to Moore’s motion.

Orsinger and Moore are asking Superior Court 1 Judge Randy Williams to decide.

Williams’ ruling likely will depend on how the Indiana Supreme Court proceeds for Delagrange, a Fort Wayne man caught using a shoe-mounted camera to take upskirt videos of females at Castleton Square Mall in Indianapolis.

A jury found him guilty of four counts of attempted child exploitation and one count of resisting law enforcement for the February 2010 incident, but those convictions were overturned by the appellate court.

The state of Indiana appealed, and the Supreme Court will hear it at a later date.

The charges against Lyzenga stemmed from an investigation that began April 22, 2012, when a church member called the sheriff’s office to report that a suspicious device was found in the women’s restroom.

Detectives were able to download data from the cameras’ memory cards, which showed that two women and a minor female had been video recorded using the restroom on separate dates in February 2011 and April 2012.

Posted by Marcia Oddi on June 6, 2013 09:47 AM
Posted to Ind. App.Ct. Decisions