ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael C. Borschel Gregory F. Zoeller
Fishers, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
In the
Mar 18 2014, 12:00 pm
Indiana Supreme Court
No. 49S04-1304-CR-249
DAVID S. DELAGRANGE,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
Appeal from the Marion Superior Court, No. 49G03-1003-FC-15460
The Honorable Sheila A. Carlisle, Judge
On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1203-CR-144
March 18, 2014
Massa, Justice.
David Delagrange here appeals his convictions for child exploitation, arguing the
evidence was insufficient to support them. We affirm.
Facts and Procedural History
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.
Unsurprisingly, Delagrange’s unusual behavior attracted attention, and a store employee
contacted police. After a brief confrontation, an officer arrested Delagrange and discovered his
camera system. Detectives later identified four girls from the recorded images: K.V., T.G., and
C.B., all aged seventeen, and A.K., aged 15. Those images depicted “the area under the skirt and
between the legs” of the victims, but did not depict any “uncovered genitals.” Ex. at 5.
The State charged Delagrange with four counts of Class C felony attempted child
exploitation, ten counts of Class D felony voyeurism, and one count of Class A misdemeanor
resisting law enforcement. By agreement of the parties, the trial court dismissed the voyeurism
charges, but it denied Delagrange’s motion to dismiss the attempted child exploitation charges.
Delagrange successfully sought interlocutory appeal of that ruling, but the Court of Appeals
affirmed the trial court and remanded the case. Delagrange v. State, 951 N.E.2d 593, 596 (Ind.
Ct. App. 2011), trans. denied 962 N.E.2d 649 (Ind. 2011) (table).
After trial, the jury convicted Delagrange of the remaining five counts. He appealed,
arguing the evidence was insufficient to support his convictions for attempted child exploitation.
A divided panel of the Court of Appeals reasoned the child exploitation statute
demands the child be performing the sexual conduct, which herein
required the child be exhibiting her uncovered genitals with the
2
intent to satisfy someone’s sexual desires. Therefore, in order for
Delagrange’s attempt to commit child exploitation, each child must
have been exhibiting her uncovered genitals with the intent to
satisfy sexual desires.
Delagrange v. State, 981 N.E.2d 1227, 1232 (Ind. Ct. App. 2013). As the State had presented no
evidence of that, the panel reversed Delagrange’s four convictions for attempted child
exploitation. Id. 1 Judge Najam dissented, in part because he believed the majority’s
interpretation “undermines the goal of the statute, which is to criminalize the exploitation of
child victims.” Id. at 1235 (Najam, J., dissenting).
We granted transfer. Delagrange v. State, 986 N.E.2d 819 (Ind. 2013) (table); Ind.
Appellate Rule 58(A).
Standard of Review
When considering whether the evidence is sufficient to support an appellant’s conviction,
we neither reassess witness credibility nor reweigh the evidence, as those tasks are reserved to
the fact-finder. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012). Rather, we consider only the
evidence most favorable to the conviction, and we will affirm unless “no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt.” Drane v. State, 867
N.E.2d 144, 146–47 (Ind. 2007) (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)).
1
The panel below framed Delagrange’s appeal as challenging the trial court’s denial to his motion for a
directed verdict. But Delagrange himself does not frame his appeal this way; indeed, he could not,
because he waived his right to appeal that issue by presenting evidence after the trial court denied his
motion. Jordan v. State, 691 N.E.2d 487, 489 (Ind. Ct. App. 1998). Rather, he argues the evidence was
insufficient to support his conviction, and we address that argument—which means we cannot and do not
consider, as the panel below did, the arguments regarding the statutory language that Delagrange’s
counsel made during his trial in support of the motion for directed verdict.
3
The Evidence Was Sufficient to Support Delagrange’s Convictions for Attempted Child
Exploitation.
Delagrange argues the evidence was insufficient to support his convictions for attempted
child exploitation.2 First, he argues “the State failed to prove all the factual elements enumerated
in the child exploitation statute by direct evidence” because none of the images depicted “sexual
conduct” as that term is used in the child exploitation statute. Appellant’s Br. at 6. Second, he
argues that in the absence of such depictions, “it was wholly unreasonable for the jury to infer
that Mr. Delagrange had attempted to make such proscribed images” because his victims were
fully clothed and it was wintertime. Appellant’s Br. at 6.
Each of the attempted child exploitation charges stated, in pertinent part:
On or about February 27, 2010 David Delagrange did attempt to
commit the felony of Child Exploitation that is to knowingly or
intentionally produce and/or create and/or film and/or videotape
and/or a digitized image of a performance or incident that includes
sexual conduct by a child under eighteen (18) years of age . . . by
engaging in conduct that constituted a substantial step toward the
commission of said offense that is; attach a camera to his shoe and
recorded video of the area under the skirt or dress of the child.
App. at 64–66 (emphasis added). At the time of the charged acts, the relevant portion of the
child exploitation statute provided: “‘Sexual conduct’ means . . . exhibition of the uncovered
genitals intended to satisfy or arouse the sexual desires of any person.” Ind. Code § 35-42-4-
4(a) (2008). 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.
2
Delagrange does not appeal his conviction for resisting law enforcement.
4
We disagree. Had Delagrange been charged with child exploitation, his argument might
have merit, but he was charged with attempted child exploitation. Under Indiana law, “a person
attempts to commit a crime when, acting with the culpability required for commission of the
crime, he engages in conduct that constitutes a substantial step toward commission of the crime.”
Ind. Code § 35-41-5-1(a) (2008). 3 Thus, the State need not show Delagrange actually succeeded
in capturing images of uncovered genitals; rather, it must show that he took a “substantial step”
toward doing so.
And whether Delagrange took such a “substantial step” is a question for the fact-finder,
which brings us to Delagrange’s second argument: that it was unreasonable for the jury to infer
he intended to capture images of uncovered genitals, rather than—as he testified—pictures of
“high heels, boots, pantyhose, panty shots, [and] nylons.” Tr. at 203. In the context of child
exploitation, as in other crimes, the intent element “may be established by circumstantial
evidence and may be inferred from the actor’s conduct and the natural and usual sequence to
which such conduct usually points.” Bowles v. State, 737 N.E.2d 1150, 1152 (Ind. 2000).
On this point, we find Saxton v. State, 790 N.E.2d 98 (Ind. 2003) instructive. In Saxton,
the defendant probationer was caught standing outside a woman’s home and staring into her
bathroom window at five o’clock in the morning. Id. at 98. He was arrested and charged with
voyeurism, and the trial court revoked his probation. Id. He appealed, arguing that because the
victim never testified, the State failed to prove he did not have her permission to be there. Id.
We found sufficient circumstantial evidence of lack of permission:
Put in terms of sufficiency of the evidence, the question becomes: can a trial court
infer that someone caught standing on an air conditioner staring into a woman’s
bathroom at 5 a.m. who runs off rather forcefully when challenged was a person
3
This statute was cosmetically amended in 2013, but the substance of this section remains unchanged.
See Ind. Code § 35-41-5-1(a) (2013) (replacing “he” with “the person”).
5
peeping without the permission of the target? We say yes, and affirm the
judgment of the trial court.
Id. at 99–100.
And just so here: can 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; 4 the latter is not.
4
A near-identical photograph of an unconsenting adult was found to be a civil tort—invasion of privacy.
See Daily Times Democrat v. Graham, 162 So.2d 474, 478 (Ala. 1964) (“To hold that one who is
involuntarily and instantaneously enmeshed in an embarrassing pose forfeits her right of privacy merely
because she happened at the moment to be part of a public scene would be illogical, wrong, and unjust.”).
But scholars have opined “civil law is an inadequate vehicle to redress the anti-social behavior manifest in
video voyeurism” because it is so often clandestine; thus, “the majority of victims are never likely to
6
Conclusion
We hereby affirm the trial court.
Dickson, C.J., Rucker, David, and Rush, JJ., concur.
realize that they, in fact, have been victimized . . . and consequently may never initiate a civil suit.”
Lance E. Rothenberg, Re-Thinking Privacy: Peeping Toms, Video Voyeurs, and the Failure of Criminal
Law to Recognize a Reasonable Expectation of Privacy in the Public Space, 49 Am. U. L. Rev. 1127,
1149 (2000) (internal citations omitted).
Indeed, the Indiana General Assembly recently amended the voyeurism statute to criminalize
non-consensual “upskirt” photography regardless of the victim’s age: “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 a camera commits public voyeurism . . .”
P.L. 75-2011, § 1, 2011 Ind. Acts 696, 696–98 (codified at Ind. Code § 35-45-4-5(d) (Supp. 2013)); see
also id. (codified at Ind. Code § 35-45-4-5(a) (Supp. 2013) (defining “private area” as “the naked or
undergarment clad genitals, pubic area, or buttocks of an individual.”)).
7