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Tuesday, March 18, 2014

Ind. Decisions - Supreme Court decides one today, re upskirting

In David S. Delagrange v. State of Indiana, a 7-page, 5-0 opinion, Justice Massa writes:

David Delagrange here appeals his convictions for child exploitation, arguing the evidence was insufficient to support them. We affirm.

On February 27, 2010, Delagrange left his home in Fort Wayne and drove approximately one hundred miles to the Castleton Square Mall in Indianapolis. He then wandered around for nearly eight hours trying to take “upskirt” photographs of women and girls as they were shopping. After he selected a particular victim, he would approach her from behind and try to inveigle his foot between her legs. Once in position, he would reach into his pocket and pull on a piece of fishing line attached to the cuff of his pants leg, thereby exposing a video camera attached to his shoe. By means of this procedure, Delagrange collected approximately seven minutes of actual images. * * *

Delagrange argues the evidence was insufficient to support his convictions for attempted child exploitation. * * * Delagrange argues that because the State presented no evidence that any of the images he captured depict uncovered genitals, it failed to prove an element of the charged offense. * * *

[C]an a jury infer that someone taking “upskirt” photographs of women and girls by means of a concealed shoe camera does so in the hope that some of them will not be wearing undergarments? We say yes. Delagrange testified he intended “to get fetish photography, which is high heels, boots, pantyhose, panty shots, nylons,” Tr. at 203, but the jurors were not required to credit that testimony. After all, one victim testified she was not wearing leggings. And on cross-examination, Delagrange’s answers suggested his interest was not limited to his victim’s clothing. When the prosecutor asked whether Delagrange intended to “videotape what was under their skirt [sic],” Delagrange admitted he did. Tr. at 223. When the prosecutor asked “what else” Delagrange had a fetish for, he answered: “I love the female form.” Tr. at 224. In light of that circumstantial evidence, the jury could reasonably infer that Delagrange intended to capture not just images of undergarments but also—or instead—images of uncovered genitals.

Finally, we note that Delagrange’s trial counsel repeatedly drew a parallel between the images Delagrange captured with his ersatz equipment and a famous photograph of Marilyn Monroe standing over an air vent. This analogy was unpersuasive for a lack of similarity between a photograph of a knowing and consenting adult and a video of an unknowing and unconsenting child. The former is legal; the latter is not.

We hereby affirm the trial court.

Posted by Marcia Oddi on March 18, 2014 12:27 PM
Posted to Indiana Decisions